HomeMy WebLinkAboutHO2009-001 Newport Coast RecoveryRESOLUTION NO. HO- 2009 -001
A RESOLUTION OF A HEARING OFFICER OF THE CITY
OF NEWPORT BEACH DENYING WITH PREJUDICE USE
PERMIT NO. 2008 -033 TO ALLOW AN EXISTING GROUP
RESIDENTIAL USE TO CONTINUE AT 1216 WEST
BALBOA BOULEVARD, NEWPORT BEACH, CALIFORNIA
(PA2008 -104)
WHEREAS, Ordinance No. 2008 -05 was adopted by the Newport Beach City
Council on January 22, 2008, following noticed public hearings; and
WHEREAS, the adoption of Ordinance No. 2008 -05 amended the City of
Newport Beach's Municipal Code (NBMC) relating to Group Residential Uses; and
WHEREAS, Ordinance No. 2008 -05 added Chapter 20.91A to the NBMC.
Chapter 20.91A sets forth a process by which existing group residential care facilities,
except for state - licensed drug or alcohol treatment homes serving six or fewer clients
and not operating integrally with other uses, must apply for use permits to remain in
operation beyond February 2009; and
WHEREAS, in order to allow an existing group residential care facility to remain
in operation, a Hearing Officer must find, following a noticed public hearing, that all four
of the findings identified in NBMC §20.91.035 (A) and all seven of the findings identified
in §20.91A.060 can be met; and
WHEREAS, Newport Coast Recovery, located at 1216 West Balboa Boulevard
( "Use Location ") in Newport Beach, California is today a group residential care facility in
an apartment complex housing seven units that is a state - licensed alcohol or drug
residential treatment home for up 29 persons (ADP License No. 300156AP); and
WHEREAS, Newport Coast Recovery ( "Use ") applied for Use Permit No. 2008-
033 to continue its operations as an 18 bed facility under Ordinance No. 2008 -05 within
the applicable time period, and a noticed public hearing was held on Monday,
December 8, 2008, at the Newport Beach City Council Chambers where public
testimony was taken, including testimony from the applicant, and this hearing was
continued to Monday, January 12, 2009, also at the Newport Beach City Council
Chambers where more public testimony was received including testimony from the
applicant; and
WHEREAS, both hearings were presided over by Thomas W. Allen, Hearing
Officer for the City of Newport Beach; and
WHEREAS, the Use Location is within the Nonstandard Subdivision Area as
defined by Ordinance No. 2008 -05; and
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paqe 2 of 12
WHEREAS, proximate to the Use Location are the following uses referred to in
NBMC §20.91A.060 (D):
1. Within 300 feet: Balboa Horizons Recovery Services (11 bed licensed
treatment facility located at 1132 West Balboa Boulevard, with an approved
use permit) is one block east of the Use Location, on the same side of the
street.
2. Within 300 feet and across the street: Newport Elementary School for
students in grades Kindergarden through 5th grade at located 1327 West
Balboa Boulevard.
3. Within 750 feet: Christ Church's large (44 children capacity) state - licensed
day care center located at 1400 West Balboa Boulevard.
4. Within 1250 feet: Outlets for alcoholic beverages are the American Legion
Hall located at 215 W. 15th Street and Fry's Market located at 115 E. 15th
Street.
NOW THEREFORE BE IT RESOLVED:
Section 1. That Finding No. 3 of NBMC §20.91.035 (A) can be made for the
following reasons:
NBMC §20.91.035 (A) Finding No. 3: That the proposed use will comply with
the provisions of this code, including any specific condition required for
the proposed use in the district in which it would be located.
The facility, as conditioned through a use permit, would comply with the
operational standards of 20.91A.050 of the NBMC, as outlined in Findings A and
B of the NBMC §20.91A.060 and as described in Section 2 below.
Section 2. That Findings A - C and Findings E - G of NBMC §20.91A.060 can
be made for the following reasons:
NBMC §20.91A.060 Finding A: The use conforms to all applicable
provisions of Section 20.91A.050. These development and operational
standards are summarized as follows:
1. No secondhand smoke can be detectable outside the property.
The facility's current operational regulations restrict smoking to designated
areas within a courtyard area of the facility. The courtyard area is enclosed
on all sides by walls but is open to the sky. Smoking outside of the limits of
the enclosed courtyard area is prohibited.
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paqe 3 of 12
2. Operations of the facility must comply with state and local law, and the
submitted management plan, including any modifications required by
this Use Permit.
The operations of this facility are in compliance with the State ADP license,
and as conditioned with approval of a use permit for the facility, would be
required to comply with the approved management plan. Approval of a use
permit for the facility would include a condition of approval requiring that the
applicant obtain an amended State ADP license to allow a maximum of 14
residents and that within 60 days of the issuance of a use permit, the
applicant confirm, in writing and with such information presented to the City,
that the counseling of familial members not in residence at 1216 West Balboa
Boulevard is acceptable under the terms of the current ADP license and any
future ADP license.
3. A contact name and number must be provided to the City.
Appropriate names and contact information numbers are provided within the
application. Approval of a use permit for the facility would include a condition
of approval requiring the applicant to provide the City with the appropriate
"after hours" names and contact information numbers.
4. No services requiring a license can be provided if the facility does not
have a license for those services.
The operation plan for the facility provides that only those services permitted
by the facility's ADP license are performed within the facility.
5. There shall be no more than two persons per bedroom plus one
additional resident, unless a greater occupancy is requested and
granted. Occupancy must also comply with State licensing if applicable.
The facility is licensed for a maximum occupancy of 29 residents. The facility
contains 9 bedrooms currently occupied by two persons per bedroom for a
total of 18 residents. Approval of a use permit for the facility would include a
condition of approval requiring the applicant to obtain an amended ADP
license establishing a maximum resident occupancy in treatment of 14
persons, the equivalent of two persons per dwelling unit. This occupancy is
consistent with the residential occupancy design of the building and the
occupancy standards of NBMC Section 20.91A.050.
6. If certification from an entity other than ADP's licensing program is
available, applicants must get that certification.
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paqe 4 of 12
Approval of a use permit for the facility would include a condition of approval
requiring the applicant to consider the merits of additional certification
available to it, including but not limited to an Orange County Adult Alcohol and
Drug Sober Living certification.
7. All individuals and entities involved in the facility's operation and
ownership must be disclosed.
All employees and management personnel have been disclosed in the
application documentation.
8. No owner or manager shall have any demonstrated pattern of operating
similar facilities in violation of the law.
According to information provided in the application documentation the
owners and managers of the facility do not own or operate any other similar
facility in the City of Newport Beach or in the State of California, and there is
no known record of state violations associated with the facility's operations.
The facility's State of California ADP license is in good standing and is valid
until January 31, 2010. While residents submitted evidence that the same
operator managed an unlicensed adult recovery maintenance facility at 1219
West Balboa for a period of time, the City is not aware that this facility, which
did not provide treatment onsite, was operated in violation of the law.
NBMC §20.91A.060 Finding B: The project includes sufficient on -site
parking for the use, and traffic and transportation impacts have been
mitigated to a level of insignificance.
The NBMC requires off - street parking and loading spaces for a residential care
facility at a ratio of one space for every three beds. The facility provides a total of
six off - street parking spaces; and therefore, would meet the NBMC requirements
for off - street parking for 14 beds with the exception of weekend family counseling
sessions as discussed below.
Residents completing their first phase of treatment, which includes 30 days of
residency, are not allowed to have personal vehicles. Clients completing their
second and third phase of treatment, which includes an additional 30 to 60 days
of residency, are permitted have their personal vehicles at the facility if
determined by the facility operator to be necessary (i.e. for use driving to and
from work).
Newport Coast Recovery conducts regular family counseling sessions on
weekends. Familial counseling for non - residents, while being an important part
of the recovery of resident clients, can significantly impact on- street parking
during busy weekends on the Balboa Peninsula. The use of on- street parking by
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paqe 5 of 12
the facility on weekends impacts the availability of on- street parking for use by
residents of the neighborhood.
This finding could be made if a condition of approval is made part of the Use
Permit requiring the applicant to : (1) purchase one master parking permit from
the City to use for on- street parking by each client who is permitted to drive his
personal vehicle to and from the facility; and (2) restrict the number of clients who
reside at 1216 West Balboa who are permitted to have personal vehicles; (3)
require that all on -site spaces remain permanently clear and open for parking; (4)
require all staff members to use the on -site parking for personal cars and
transport vans; and (5) regulate family counseling activities including prohibiting
family members from using on- street parking when visiting the facility and
requiring either the use of on -site parking by family members visiting the facility
or the use by family members of alternative transportation modes to and from the
facility.
NBMC §20.91A.060 Finding C: The property and existing structures are
physically suited to accommodate the use.
The building is similar to many other residential structures along West Balboa
Boulevard constructed on a lot parcel that measures approximately 62 feet wide
by 100 feet deep. The building was constructed in 1949 when the subject
property was zoned R -3. The property was later rezoned to an R -2 District in
1989 along with other properties in the area. As a result, the structure is
nonconforming structure permitted to continue subject to the provisions of
Chapter 20.62, "Nonconforming Structures and Uses," of the NBMC.
The City of Newport Beach Fire Department is the responsible agency for
implementing fire protection of all group residential care facilities and residences.
The subject property has an approved fire clearance from the City of Newport
Beach Fire Department dated June 6, 2004, for a maximum occupancy of 29
residents, as well as staff. Separate from the use permit process, the applicant
may be required to conduct an architectural code analysis of the facility to
determine if the facility complies with existing current Building Codes for this
occupancy type, or the Building Codes existing at the time the facility was initially
issued a "fire clearance."
NBMC §20.91A.060 Finding E: The operation of buses and vans to
transport residents to and from off -site activities does not generate
vehicular traffic substantially greater than that normally generated by
residential activities in the surrounding area.
A facility van provides transportation for the residents on a weekly schedule
dispersed within the day and among the days of the week so that van
transportation is not concentrated during peak traffic times. Van loading and
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Page 6 of 12
than the narrower alley access at the rear of the building. Approval of a use
permit would include a condition of approval restricting loading and unloading of
transportation van passengers to occur within open parking spaces along West
Balboa Boulevard and prohibiting van drivers from stopping or double - parking in
a traffic lane.
NBMC §20.91A.060 Finding F: Arrangements for delivery of goods are
made within the hours that are compatible with and will not adversely affect
the peace and quiet of neighboring properties.
Business products and other packages and goods are delivered to the facility's
business office located off -site. From this location, goods are delivered by staff
members to the facility during weekdays between the hours of 9:00 a.m. to 5:00
p.m. These days and hours for deliveries are consistent with normal working
hours and as such are compatible with and will not adversely affect the peace
and quiet of neighboring properties.
NBMC §20.91A.060 Finding G: Arrangements for commercial trash
collection in excess of usual residential collection are made within hours
that are compatible with and will not adversely affect the peace and quiet of
neighboring properties.
The applicant contracts with a commercial waste management company which
collects trash twice a week on weekdays between the hours of 9:00 a.m. and
5:00 p.m. The hours of trash collection are within hours that are compatible with
and will not adversely affect the peace and quiet of neighboring properties.
Section 3. That Findings Nos. 1, 2, and 4 of NBMC §20.91.035 (A) cannot be
made for the following reasons:
NBMC §20.91.035 (A) Finding No. 1: That the proposed location of the use
is in accord with the objectives of this code and the purposes of the district
in which the site is located.
This proposed project is only partially in accord with the objectives of this code
and the purposes of the district in which the site is located. The subject property
is located in an R -2 District, and the proposed use as a residential care facility is
a nonconforming use. Nonconforming uses in a residential district are subject to
the provisions of Chapter 20.91A of the NBMC. The proposed application for
Use Permit 2008 -033 is in accord with the objectives and requirements of
Chapter 20.91A with respect to the requirement for the submittal of an application
for approval of a use permit to continue the use of the subject property as a
residential care facility in the R -2 District.
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Pape 7 of 12
The objectives of the code include provisions intended to reduce, through the use
permit process, the potential for overconcentration of residential care facilities
within a neighborhood and to protect public health, safety, peace, morals,
comfort, or welfare of persons residing or working in or adjacent to the
neighborhood of such use. The intensity of the use, if limited to 14 residents
housed in 9 bedrooms with 2 persons per bedroom, would be consistent with a
typical residential population factor of two persons per dwelling unit in the R -2
District and the surrounding properties within the R -2 District. However, the
subject property's proximity to another residential care facility at 1132 West
Balboa Boulevard, to a large state - licensed day care facility at 1400 West Balboa
Boulevard, to Newport Elementary School, and to facilities either selling or
serving alcoholic beverages makes the proposed use incompatible with the
surrounding residential character of the neighborhood. The discussion of
incompatibility of the proposed use with the surrounding residential neighborhood
is discussed in detail in Section 4 of this Resolution. The proposed location of the
use is not in accord with all of the objectives of this code and the purposes of the
district in which the site is located due to the proximity of the proposed use to
another residential care facility at 1132 West Balboa Boulevard, to Newport
Elementary School, to the large state - licensed day care facility, and to alcoholic
beverage sales and service facilities; and therefore, this finding cannot be made.
NBMC §20.91.035 (A) Finding No. 2: That the proposed location of the use
permit and the proposed conditions under which it would be operated or
maintained will be consistent with the General Plan and the purpose of the
district in which the site is located; will not be detrimental to the public
health, safety, peace, morals, comfort, or welfare of persons residing or
working in or adjacent to the neighborhood of such use; and will not be
detrimental to the properties or improvements in the vicinity or to the
general welfare of the city.
General Plan policy LU 6.2.7 directs the City to regulate day care and residential
care facilities to the maximum extent allowed by federal and state law so as to
minimize impacts on residential neighborhoods. Approval of a use permit for the
facility would include conditions regulating the use and operational characteristics
related to curfew hours, smoking, transportation of clients off -site, trash
collection, delivery of goods, and types of services provided; however, the
continued use of the subject property as a residential care facility in this location
would be detrimental to the public health, safety, peace, morals, comfort, or
welfare of persons residing or working in or adjacent to the facility.
Testimony by an adjacent neighbor and other area residents includes statements
that residents at this facility have been disrespectful to others in the
neighborhood, including playing music loudly despite frequent requests not to do
so, littering, using profanity, and allowing excessive secondhand smoke to
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paae8of12
permeate adjacent residences. From this testimony, it does not appear to the
City staff that the operator can adequately control the facility's caseload of clients
in a manner that allows the neighbors to have quiet enjoyment of their properties.
The subject property is proximate (within 300 feet) to Newport Elementary School
located at 1327 West Balboa Boulevard and proximate (within 750 feet) to Christ
Church by the Sea's Children's Center, a large day care facility licensed by the
State of California Department of Social Services located at 1400 West Balboa
Boulevard with a capacity of 44 children. These facilities could be affected by the
use due to residents of Newport Coast Recovery using the open recreational
area associated with Newport Elementary School and the potential for residents
of Newport Coast Recovery to loiter, smoke, and engage in offensive and
disruptive behaviors incompatible with nearby school and daycare uses.
NBMC §20.91.035 (A) Finding No. 4: If the use is proposed within a
Residential District (Chapter 20.10) or in an area where residential uses are
provided for in Planned Community Districts or Specific Plan Districts, the
use is consistent with the purposes specified in Chapter 20.91A and
conforms to all requirements of that Chapter.
This proposed project is only partially consistent with the purposes specified in
Chapter 20.91A and does not conform to all the requirements of that Chapter.
The subject property is located in an R -2 District, and the proposed use as a
residential care facility is a nonconforming use. Nonconforming uses in a
residential district are subject to the provisions of Chapter 20.91A of the NBMC.
The proposed application for Use Permit No. 2008 -033 is in accord with the
purpose and requirements of Chapter 20.91A with respect to the requirement for
the submittal of an application for approval of a use permit to continue the use of
the subject property as a residential care facility in the R -2 District.
The intended purpose of the code is to maintain the residential character of the
neighborhood within which a facility is located, to reduce the potential for
overconcentration of residential care facilities within a neighborhood, and to
protect public health, safety, peace, morals, comfort, or welfare of persons
residing or working in or adjacent to the neighborhood of such use. The
placement of more than one residential care facility per median block length in
the densely populated mid - Balboa Peninsula area creates a strong likelihood of
change to the character of the residential neighborhood and would result in an
overconcentration of residential care facilities within the neighborhood.
It is appropriate to apply the American Planning Association standard to this
application. The use is located in the mid - Balboa Peninsula area which is a part
of the Nonstandard Subdivision Area. Inasmuch as §20.91A.060 (D.3.) indicates
median block lengths in different areas of Newport Beach widely range from 300
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Page 9 of 12
Balboa Peninsula area where this use is located. The calculable median block
length of 617 feet is hereby established for purposes of the mid - Balboa
Peninsula area. The term "block" means an area bounded by streets, per
Ordinance No. 2008 -05 (Section 20.03.030). In this case, Balboa Boulevard is a
major street that is a sufficient dividing line between each side of Balboa
Boulevard. However, the Hearing Officer can extend beyond smaller streets like
12th and 11th Streets in an effort to "eliminate the differences in block lengths" per
Section 20.91A.060 (D.3.) to achieve a 617 -foot block standard.
Within the 617 -foot block where the proposed use is located there is already one
11 bed residential care facility (Balboa Horizons). The proposed use located at
1216 West Balboa Boulevard, within the same block as Balboa Horizons, would
result in an overconcentration of residential care facilities within the
neighborhood.
The subject property's proximity to another residential care facility at 1132 West
Balboa, to a large state - licensed day care facility at 1400 West Balboa, to
Newport Elementary School, and to facilities either selling or serving alcoholic
beverages makes the proposed use incompatible with the surrounding residential
character of the neighborhood. The discussion of incompatibility of the proposed
use with the surrounding residential neighborhood is discussed in detail in
Section 4 of this Resolution. The proposed location of the use is only partially
consistent with the purpose of the code and does not conform to all the
requirements of Section 20.91A; and therefore, this finding cannot be made.
Section 4. That Finding D of NBMC §20.91A.060 cannot be made for the
following reasons:
NBMC §20.91A.060 Finding D: The use will be compatible with the
character of the surrounding neighborhood, and the addition or continued
maintenance of the use will not contribute to changing the residential
character of the neighborhood, such as creating an overconcentration of
residential care uses in the vicinity of the proposed use. In making this
finding or sustaining such a finding, the Hearing Officer shall consider, as
appropriate, the following factors:
1. The proximity of the use location to schools, parks, other residential
care facilities, outlets for alcoholic beverages and any other uses which
could be affected by or affect the operation of the subject use;
2. The existence of substandard physical characteristics of the area in
which the use is located such as lot widths, setbacks, narrow. streets,
limited available parking, short blocks, and other substandard
characteristics which are pervasive in certain areas of the City of
Newport Beach, including portions of West Newport, Lido Isle, Balboa
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paqe 10 of 12
2. The existence of substandard physical characteristics of the area in
which the use is located such as lot widths, setbacks, narrow streets,
limited available parking, short blocks, and other substandard
characteristics which are pervasive in certain areas of the City of
Newport Beach, including portions of West Newport, Lido Isle, Balboa
Peninsula, Balboa Island, Corona del Mar and Newport Heights, which .
portions were depicted on a map referred to as the Nonstandard
Subdivision Area presented to the Newport Beach Planning
Commission on September 20, 2007 and on file with the Director of
Planning; and
3. Whether, in light of the factors applied in subsections 20.91A.D.1 and
D.2, it would be appropriate to apply the American Planning Association
standard of permitting one or two such uses per block. Median block
lengths in different areas of Newport Beach widely range from 300 feet
in the Nonstandard Subdivision Areas to as much as 1,422 feet in
standard subdivision areas. The average calculable block length in
much of the standard subdivision areas is 711 feet and the calculable
median block length is 617 feet. The Hearing Officer shall apply the
American Planning Association standard in all areas of Newport Beach
in a manner that eliminates the differences in block lengths. In making
this determination, the hearing officer shall be guided by average or
median block lengths in standard subdivisions of the City. The Hearing
Officer shall retain the discretion to apply any degree of separation of
uses, which he or she deems appropriate in any given case. A copy of
the American Planning Association standard is on file with the Director
of Planning.
The subject property is proximate (within 300 feet) to Newport Elementary School
located at 1327 West Balboa Boulevard, and proximate (within 750 feet) to Christ
Church by the Sea's Children's Center, a large day care facility licensed by the
State of California Department of Social Services located at 1400 West Balboa
Boulevard with a capacity of 44 children. These facilities could be affected by the
use due to residents of Newport Coast Recovery using the open recreational
area associated with Newport Elementary School and the potential for residents
of Newport Coast Recovery to loiter, smoke, and frequently engage in offensive
and disruptive behaviors incompatible with nearby school and daycare uses.
The subject property is proximate (within 1250 feet) to two outlets for alcoholic
beverages (American Legion Hall at 215 15th Street and Fry's Market at 115 15th
Street) both within walking distance from the facility which allows residents of the
use convenient access to alcohol sales and service which can affect the ability of
the use to fully operate as an alcohol rehabilitation facility.
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Pape 11 of 12
It is appropriate to apply the American Planning Association standard to this
application. The use is located in the mid - Balboa Peninsula area which is a part
of the Nonstandard Subdivision Area. Inasmuch as §20.91A 060 (D.3.) indicates
median block lengths in different areas of Newport Beach widely range from 300
feet in the nonstandard subdivision areas to as much as 1,422 feet in standard
subdivision areas, the Hearing Officer may establish a block length for the mid -
Balboa Peninsula area where this use is located. The calculable median block
length of. 617 feet is hereby established for purposes of the mid - Balboa
Peninsula area. The term "block" means an area bounded by streets, per
Ordinance No. 2008 -05 (Section 20.03.030). In this case, Balboa Boulevard is a
major street that is a sufficient dividing line between blocks on each side of
Balboa. However, the Hearing Officer can extend beyond smaller streets like
12th and 11th Streets in an effort to "eliminate the differences in block lengths" per
Section 20.91A.060 (D.3) to achieve a 617 -foot standard.
The placement of more than one residential care facility per median block length
in the densely populated mid - Balboa Peninsula area creates a strong likelihood
of change to the character of the residential neighborhood. Within the 617 -foot
block where this use is located there is already one 11 bed residential care
facility (Balboa Horizons).
Section 5. The Hearing Officer hereby denies with prejudice Use Permit No.
2008 -033.
Section 6. The action shall become final and effective fourteen (14) days after
the adoption of this Resolution unless within such time an appeal is filed with the City
Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport
Beach Municipal Code.
City of Newport Beach
Hearing Officer Resolution
1216 West Balboa Boulevard (PA2008 -104)
Paae12of12
PASSED, APPROVED, AND ADOPTED this 41h day of February, 2009.
Thomas W. Allen, Hearing Officer
ATTEST:
qcx _ �
City Clerk V
ORNIN