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HomeMy WebLinkAbout2007-10 - Making Findings and Extending a Temporary Moratorium on the Establishment and Operation of New Residential Uses that are Transitory in Nature Such as Parolee-Probationer Homes, Safe Houses, Unlicensed Residential Care Facilities and ResidentialORDINANCE NO. 2007 -10 AN INTERIM URGENCY ORDINANCE OF THE CITY OF NEWPORT BEACH, CALIFORNIA, MAKING FINDINGS AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND OPERATION OF NEW RESIDENTIAL USES THAT ARE TRANSITORY IN NATURE SUCH AS PAROLEE - PROBATIONER HOMES, SAFE HOUSES, UNLICENSED RESIDENTIAL CARE FACILITIES AND RESIDENTIAL CARE FACILITIES, GENERAL, IN ALL RESIDENTIAL ZONING DISTRICTS OF THE CITY WHEREAS, on April 24, 2007 at a regular meeting of the City Council, the City Council adopted Ordinance No. 2007 -8 an interim urgency ordinance adopting a temporary forty-five (45) day moratorium on the establishment and operation of new group residential uses that are transitory in nature such as parolee - probationer homes, safe houses, unlicensed residential care facilities and residential care facilities, general, in all residential zoning districts of the City; and WHEREAS, Section 200 of the City Charter vests the City Council with the authority to make and enforce all laws, rules and regulations with respect to municipal affairs subject only to the restrictions and limitations contained in the Charter and the Constitution, and the power to exercise, or act pursuant to any and all rights, powers, and privileges, or procedures granted or prescribed by any law of the State of California; and WHEREAS, Government Code Section 65858 provides that after notice pursuant to Government Code Section 65090 and public hearing, the City Council may extend an interim ordinance adopted pursuant to Government Code Section 65858 up to 10 months and 15 days by a vote of four -fifths (4/5) majority of the members of the City Council; and WHEREAS, Section 412 of the City Charter provides for the adoption as an emergency measure an interim ordinance to preserve the public peace, health or safety by a vote of at least five (5) City Council members; and WHEREAS, in 2006 the City of Newport Beach adopted a new General Plan and the voters adopted a new Land Use Plan. The General Plan includes a vision statement that provides a framework or vision for the City. The first vision is to Preserve Community Character and provides that "We have preserved our character as a beautiful, unique residential community with diverse upland and coastal neighborhoods. We value our colorful past, the high quality of life, and our community bonds. The successful balancing of the needs of residents, businesses and visitors has been accomplished with the recognition that Newport Beach is primarily a residential community ;" and WHEREAS, the City has received evidence of increasing numbers of group homes that are transient in nature and operate more like institutional and boarding housing uses 1 than as a Single Housekeeping Unit. These uses are concentrated in residential zoning districts R1.5, R -2, and MFR. Uses such as homes for parolees and probationers, group uses, non - residential uses, and other uses are operating as businesses in residentially zoned areas of the City. These uses and the business operations engendered by these uses are changing the unique character and balance of Newport Beach's residential neighborhoods, violating the General Plan's vision that seeks to retain Newport Beach as primarily a residential community, and in many cases placing incompatible uses in residential neighborhoods, contrary to the policies in the City's Land Use Element (Policies LU 1.1, LU 5.1.1, LU 6.2.6 and LU 6.2.7); and WHEREAS, citizens of the City have expressed significant concerns regarding the impacts that a proliferation of parolee /probationer, transient, group, non - residential, and commercial uses has on the community, including, but not limited to, impacts on traffic and parking, excessive delivery times and durations, the commercial use of public property, commercial and/or institutional services offered in private residences, more frequent trash collection, daily arrival of staff who live off -site, loss of affordable rental housing, violations of boardinghouse and illegal dwelling unit regulations of the Municipal Code, obvious business operations in residences, secondhand smoke, use of illegal drugs, and nuisance behaviors such as excessive noise, litter, loud offensive language, and public drunkenness; and WHEREAS, in response to questionnaires distributed by Staff to residents residing in the 1100 and 1200 blocks of West Balboa and West Bay Avenue, the 1100 block of West Ocean Front, the central portions of the 1800 block of West Ocean Front and West Balboa Blvd, and the 100 blocks of 38th and one side of 39th Street, residents identified the following impacts: (1) daily traffic and parking impacts caused by cars and vans illegally parking in the alleys behind the homes, from vans and other vehicles stopping in a traffic lanes in the street to pick up persons residing in group residential homes, and the use of garage spaces for uses other than parking; (2) above average garbage generation and collection services caused by the density of the population living at group residential facilities; (3) second -hand smoke and litter impacts caused by residents of the group residential facilities smoking outdoors; and (4) frequent noise impacts caused by exposure to loud arguments and verbal exchanges (between residents, and between residents and supervising staff), foul language, and physical altercations between facility residents. Residents responding to questionnaires noted that they had informed recovery facility managers regarding these conditions; however, this did not generally result in long -term improvement of the situation; and WHEREAS, the City has received evidence that residential care facilities licensed to serve six or fewer persons may be operating in duplexes and apartments as a campus or as an integral facility serving seven or more persons without required governmental approvals; and WHEREAS, Land Use Element Policy 6.2.7 provides that the City shall regulate residential and day care facilities to the maximum extent allowed by federal and state law to minimize impacts on residential neighborhoods; and r. WHEREAS, based on the impacts associated with group residential uses, the likelihood that new group residential uses will seek to be established in the City prior to the adoption of new regulations, and the need for public hearings before the Planning Commission and City Council to review the proposed ordinance modifying the regulation of group residential uses, the City Attorney has recommended the moratorium on the establishment and operation of new group residential uses should be extended for five (5) months to accommodate the extended process for zoning code amendments; and WHEREAS, based on the extensive regulation of short-term lodging uses that are already in place, the fact that short-term lodging rentals provide alternative visitor accommodations and are supported by Coastal Land Use Plan Section 2.33 and Policy 2.7 -3, the limited number of new short-term lodging permits likely to be issued prior to the adoption of new regulations, the ability of the City to change the conditions of approval for short-term lodging permits without the need for extended public hearings, the nature of the impacts caused by short-term lodgings, and the ability of the City Council to make modifications to the substantive regulations in an expedited manner, the City Attorney has recommended that the moratorium on the issuance of short-term lodging permits need not be extended; and WHEREAS, the City requires additional time to adopt an ordinance modifying the regulation of group residential use to reduce impacts on residentially zoned areas while complying with federal and state laws protecting the disabled, and to specify appropriate, permitting licensing or registration procedures and desired levels of discretionary review; and WHEREAS, the City Council also needs additional time to receive public comment prior to enacting any permanent regulatory ordinance; and WHEREAS, the City Council finds that owners or operators of paroleelprobationer, transient, group, non - residential, and commercial uses are likely to submit applications for such uses and /or commence operations of such uses before appropriate regulations and safeguards are in place thereby impacting the peace, health, safety and welfare of the community; and WHEREAS, these uses and facilities may be established in areas that would be inconsistent with surrounding uses or with the character of a residential neighborhood or would be immediately detrimental to the public peace, health, safety, and welfare; and WHEREAS, if those uses are allowed to proceed, such uses could conflict with, and defeat the purpose of, the proposal to adopt new regulations regarding these uses; and WHEREAS, the extension of the moratorium on group residential uses will not adversely impact the ability of the disabled to find housing in the City of Newport Beach because the City has a disproportionately high number of licensed and unlicensed residential group uses serving the disabled. Cl NOW, THEREFORE, the Newport Beach City Council does hereby ordain as follows: SECTION 1: Findings. The City Council finds as follows: A. The above recitals are true and correct and incorporated herein by this reference. B. Based on the recitals above, incorporated into these findings, the City Council hereby finds and determines that there is a current and immediate threat to the public peace, health, safety, and welfare, and that the establishment, commencement of operations, and /or the issuance of use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlements providing for the establishment or operation of transient uses such as parolee - probationer homes, safe houses, unlicensed residential care facilities, and residential care facilities, general, prior to the City adopting an ordinance modifying the regulation of group residential use to reduce impacts on residentially zoned areas, would pose a current and immediate threat to the public peace, health, safety, and welfare, and that a temporary moratorium on the establishment of these uses and the issuance of such permits, licenses, and entitlements is thus necessary. C. Based on the recitals above, incorporated into these findings, this ordinance is necessary as an emergency measure to preserve the public peace, welfare, health and safety. SECTION 2: Imposition of Moratorium. In accordance with the authority granted the City of Newport Beach by the City Charter and Government Code Section 65858, for a period of five (5) months from and after the date of this ordinance, the following provisions are applicable to all residential districts of the City: A. No new transitory use shall be established or operated, and no use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlements for the establishment or operation of any new transitory use shall be approved or issued, unless otherwise expressly provided for herein. Licensed residential care facilities, small and large family child care homes, and short-term lodging uses shall be exempt from the provisions of this ordinance. B. For purposes of this ordinance the following terms shall have the following meanings: 0 1. "Large family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(1). 2. "Licensed residential care facilities" are State licensed facilities that are maintained and operated to provide nonmedical residential care, day treatment, or foster agency services for six or fewer adults, children, or adults and children and which are required by State law to be treated as a single housekeeping unit for zoning purposes, but not including State licensed facilities that are operated as integral facilities and together serve seven or more adults, children, or adults and children. Licensed residential care facilities shall be subject to all land use and property development regulations applicable to single housekeeping units. 3. `Integral facilities" are two or more licensed residential care facilities that are under the control and management of the same licensee and are integral components of the same facility, such as by providing housing in one facility and recovery, treatment, or other services in another facility, or by designating one facility to provide recovery, treatment, or other services for several residences. Licensed residential care facilities that constitute a campus, as the term is defined in Municipal Code section 23.03.030, are integral facilities. 4. 'Parolee- probationer homes" shall mean any residential structure or unit, whether owned and /or operated by an individual or a for - profit or nonprofit entity, that houses two or more parolees - probationers in exchange for monetary or non - monetary consideration given and /or paid by the parolee - probationer and /or any public or private entity or person on behalf of the parolee - probationer. A parolee — probationer includes: A) any individual who has been convicted of a federal crime, sentenced to a United States prison, and received conditional and revocable release in the community under the supervision of a federal parole officer; B) any individual who has served a term of imprisonment in a State prison and who is serving a period of supervised community custody, as defined in Penal Code Section 3000, and is under the jurisdiction of the California Department of Corrections, Parole and Community Services Division; and C) an adult or juvenile sentenced to a term in the California Youth Authority and who has received conditional and revocable release in the community under the supervision of a Youth Authority Parole Officer. 5. 'Residential care facilities, general," shall have the same meaning as the term is defined in Municipal Code section 20.05.030(D). 6. 'Residential district" shall mean all areas where the use is designated as a residential use including all residential zoning districts, and residential uses provided for in Planned Community Texts and Special Plan Areas of the City. 7. "Safe houses" shall mean any residential structure or unit, whether owned and /or operated by an individual or a for -profit or nonprofit entity, that houses two or more persons who are not living together as a single family housekeeping unit including, but not limited to, residences providing services to current or former gang members, in exchange for monetary or non - monetary consideration given and /or paid 5 by the current or former gang members and/or any public or private entity or person on behalf of the current or former gang members. 8. "Single housekeeping unit" shall have the same meaning as the term is defined in Municipal Code Section 20.03.030. 9. "Small family child care homes" shall have the same meaning as the term is defined in Municipal Code Section 20.05.030(A)(2). 10. "Transitory uses" shall include new residential uses where the average tenancy is usually less than ninety (90) days, including but not limited to new parolee - probationer homes, safe house, unlicensed residential care facilities, residential care facilities, and other similar residential uses that are transitory in nature. 11. "Unlicensed residential care facilities" shall mean any residential care facility, limited, as the term is defined in Municipal Code Section 20.05.030(E) that is not licensed by the State. C. As required by State law, the City may continue to accept and process applications for uses prohibited by this moratorium. Any application shall be processed at the applicant's sole cost with the understanding that no use permits, variances, other permits, business licenses, federal exception permits, or other applicable entitlement for a transitory use may be issued until this moratorium is removed. SECTION 3: Planning Study. The Planning Department with the assistance of the City Attorney's Office is directed to: (1) prepare an ordinance modifying the regulation of group residential uses for consideration by the Planning Commission by the second Planning Commission meeting in June; and (2) prepare an ordinance modifying the regulation of short-term lodging uses for consideration by the City Council by the second meeting of the City Council in June. SECTION 4: Reasonable Accommodation. In compliance with Fair Housing Laws (42 USC Section 3600 at seq. and Government Code Section 12900 at seq.), it is the City's policy to provide reasonable accommodation in the application of this interim urgency ordinance to any person with a disability who seeks fair access to housing. "Disability" shall have the same meaning as the terms "disability" and "handicapped" in the Fair Housing Laws. A. An application for reasonable accommodation in the application of this interim urgency ordinance shall be made to the Planning Director and shall include: requested; The provision of this ordinance from which accommodation is being 11 2. The basis for the claim that the individuals affected are considered disabled under the Fair Housing Laws, and why the accommodation is necessary to provide equal opportunity for housing and to make the specific housing available to the individuals; and 3. Any other information the Planning Director reasonably determines is necessary. B. In making a determination regarding the reasonableness of the requested accommodation, the following factors shall be considered: 1. Special need created by the disability; 2. Potential benefit that can be accomplished by the requested accommodation; 3. Potential impact on property in the vicinity; 4. Physical attributes of the property and structures; 5. Alternative accommodations that may provide an equivalent level of benefit; 6. In the case of a determination involving a one - family dwelling, whether the occupants would be considered a single housekeeping unit; 7. Whether the requested accommodation would impose an undue financial or administrative burden on the City; 8. Whether the requested accommodation would require a fundamental alteration in the nature of a City program; and 9. Whether granting the request would be consistent with the Citys General Plan. C. Any request for reasonable accommodation from the provisions of this ordinance shall be reviewed and considered by the Planning Commission at a public hearing and may be approved, conditionally approved, or denied by the Planning Commission. SECTION 5: Amendments to Ordinance. The City Council by ordinance after notice of public hearing, by the affirmative vote of at least four -fifths (4/5) of the voting City Council Members may modify, amend, delete or add to this ordinance upon a finding that such action will implement and enforce the goals, policies, and purposes of this ordinance. VA SECTION 6: Compliance with California Environmental Quality Act. The City Council finds that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly; in that it prevents changes in the environment pending the completion of the contemplated municipal code review. SECTION 7: Waiver. The City, on a case by case basis, shall have the authority, upon a showing of good cause by an applicant, to waive the interim prohibition/moratorium imposed by this ordinance. Good cause shall mean a factual and evidentiary showing by the applicant that the interim prohibition /moratorium, if not waived, will deprive the applicant of substantially all reasonable use of his /her property. SECTION 8: Term of Urgency Ordinance; Extension. This interim urgency ordinance shall by operation of law be of no further force and effect five (5) months from and after the date of this adoption on May 30, 2007; provided, however, that after notice of public hearing pursuant to Government Code Section 65090, the City Council Members may by a four -fifths (415) vote of the voting City Councilmembers extend this interim or urgency ordinance for up to one (1) year. SECTION 9: Severability. The City Council hereby declares that if any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION 10: Effective Date. This ordinance is hereby declared to be an urgency measure and shall be enforced and be in effect immediately upon its adoption. 0 SECTION 11: Publication. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City of Newport Beach within fifteen (15) days of its adoption. This Ordinance was introduced and adopted as an urgency measure at a regular meeting of the City Council of the City of Newport Beach held on the 30th day of May, 2007, and adopted on the 30"' day of May, 2007, by the following vote, to -wit: AYES, COUNCILMEMBERS Henn, selich, Webb, Daigle, Gardner, Mayor Rosansky NOES,COU NCI LMEMBERS None ABSENT, COUNCILMEMBERS Curry U, STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LaVonne M. Harkless, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2007 -10 was duly and regularly introduced before and adopted by the City Council of said City at an adjourned regular meeting of said Council, duly and regularly held on the 30th day of May 2007, and that the same was so passed and adopted by the following vote, to wit: Ayes: Henn, Selich, Webb, Daigle, Gardner, Mayor Rosansky Noes: None Absent: Curry Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 31st day of May 2007. (Seal) City Clerk City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2007 -10 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit: June 2, 2007. In witness whereof, I have hereunto subscribed y name this }�� day of y �✓� 2007. U &Y""" City Clerk City of Newport Beach, California