HomeMy WebLinkAbout10 - PH-1 - Appeal of the Denial of Conditional Use - 11/5/2019
CITY COUNCIL AGENDA REPORT
MEETING DATE: NOVEMBER 5, 2019 ITEM NUMBER: PH-1
SUBJECT: APPEAL OF THE DENIAL OF CONDITIONAL USE PERMIT PA-16-63 TO
OPERATE A RESIDENTIAL FACILITY SERVING MENTALLY DISABLED
PERSONS IN SIX UNITS HOUSING UP TO 30 RESIDENTS AS WELL AS
THE DENIAL OF REASONABLE ACCOMMODATION RA-19-06 FOR
RELIEF FROM CERTAIN REQUIREMENTS OF THE ZONING CODE;
OPERATED BY NSIGHT PSYCHOLOGY AND ADDICTION AT 2641
SANTA ANA AVENUE, UNITS A THROUGH F
DATE: OCTOBER 24, 2019
FROM: DEVELOPMENT SERVICES DEPARTMENT/PLANNING DIVISION
PRESENTATION
BY:
WILLA BOUWENS-KILLEEN, ZONING ADMINISTRATOR
FOR FURTHER INFORMATION
CONTACT:
WILLA BOUWENS-KILLEEN, AICP 714.754.5153
ZONING ADMINISTRATOR
RECOMMENDATION:
Staff recommends that the City Council adopt a Resolution upholding the decision of the
Planning Commission and deny Conditional Use Permit PA-16-63 and Reasonable
Accommodation RA-19-06.
APPLICANT OR AUTHORIZED AGENT:
The applicant, Mary Helen Beatificato, is representing the operator, Nsight Psychology
and Addiction, and the property owners, Bjormad LA, LLC.
BACKGROUND:
According to the Conditional Use Permit (CUP) application, Nsight, has operated a sober
living facility on this property since February 2015. The facility serves up to 30 adults.
(The applicant’s revised CUP application states that, as of late 2016, the facility is
operating as housing for the mentally disabled, still serving 30 adults. The facility is not
state licensed.) Pursuant to Costa Mesa Municipal Code (CMMC) Section 13-323,
group homes with more than seven residents may be permitted on sites zoned for multi-
family development, subject to approval of a CUP.
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On October 26, 2016, the applicant filed a CUP and Operator’s Permit application for a 30
resident sober living home in six units at the subject property. Due to the workload and
backlog of group home applications at the time, staff was unable to evaluate and proceed
with the application until early 2018. There are four state-licensed drug and alcohol
treatment facilities on two properties located within a County unincorporated area within
650 feet of the subject property. The applicant was informed of the conflict on July 2, 2018
and, in response, the applicant filed a request for Reasonable Accommodation on August
3, 2018.
The Reasonable Accommodation requested that the City either waive the 650-foot
separation requirement or make a determination that the use is not subject to the group
home ordinance and to allow the facility to continue as a matter of right at the property.
This was based on a statement in the applicant’s Reasonable Accommodation request
that the facility should be allowed to continue because the use differs from the other
facilities in proximity to its site. The proposed use is a “therapeutic community which
provides a residential setting in which persons with mental illness can live with limited
support from professional and trained staff” Staff requested that the applicant submit a
revised CUP application to clarify whether the request was for housing for mentally
disabled persons or for a sober living home as was originally proposed in October 2016.
The applicant submitted a revised CUP application on February 4, 2019 to reflect this
change in the proposed use. On April 5, 2019, the Director of Development Services
denied the request for Reasonable Accommodation; the applicant filed an appeal of that
decision on April 12, 2019. The request for a Reasonable Accommodation, Director’s
denial letter, and appeal documents are labeled as Attachments 2, 3, and 4, respectively.
The appeal of the Director’s decision on the Reasonable Accommodation and the CUP
application were agendized for Planning Commission consideration.
At its meeting of August 12, 2019, on a 7 to 0 vote, the Planning Commission voted to
deny CUP PA-16-63 and to uphold the Director’s denial of RA-19-06. The application is
fully described and analyzed in the staff report prepared for that meeting. The Resolution
adopted by the Planning Commission is attached to this report (Resolution PA-19-39,
Attachment 5). Nine members of the public spoke during the meeting – three in support of
the application and six opposing the application. Additionally, two emails in opposition to
the request as well as a letter from the applicant were received prior to the Planning
Commission meeting. The Planning Commission staff report and video (meeting minutes
are not yet available) may also be found on the City’s website via the following links:
Staff report:
http://ftp.costamesaca.gov/costamesaca/planningcommission/agenda/2019/2019-08-
12/PH-1.pdf
Video: http://costamesa.granicus.com/MediaPlayer.php?view_id=10&clip_id=3439
The applicant appealed the Planning Commission’s decision on August 13, 2019
(Attachment 6). In their appeal, the applicant stated that it “ . . . presented evidence
sufficient to make the findings necessary for the granting of its request for a reasonable
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accommodation. Accordingly the PC’s [Planning Commission’s] denial of Applicant’s
request for reasonable accommodation and a conditional use permit was in error and
should be reversed.”
DESCRIPTION/ANALYSIS:
The subject property is located on Santa Ana Avenue between Del Mar Avenue and Mesa
Drive. The property is zoned R2-MD (Multiple-Family Residential, Medium Density) and
has a General Plan land use designation of Medium Density Residential. Multi-family
residential uses that are also zoned R2-MD abut the site to the north and south; single-
family residential uses that are zoned R1 abut the site to the west. Multi-family
residential uses exist across Santa Ana Avenue to the east in an unincorporated
(County) area.
Facility Description
According to the application, Nsight has operated a sober living facility on the subject
property since February 2015, prior to the enactment of Ordinance 15-11. In the
application for the revised CUP application, the applicant states that, . . . .”in late 2016,
due [to] a substantial change in characteristics of the individuals presenting for
treatment, Applicant’s use of the property changed.” The facility includes four structures
on a single parcel and houses up to 30 adult residents. In addition, there are two
“awake” staff members/house managers present on the site at all times.
The property is nonconforming with respect to the number of dwelling units, lot width,
parking, open space requirements, rear yard setbacks, driveway width, vehicle back out
area, and driveway landscape parkway requirements.
Separation Map
The CMMC requires a separation of 650 feet between group homes, residential care
facilities or state-licensed drug and alcohol treatment facilities. The following types of
facilities are depicted on the map:
State-licensed facilities serving six or fewer adults; these facilities are permitted
by right under State law
Sober living and state-licensed treatment facilities for which the City has issued a
CUP to serve more than six adults
Sober living facilities serving up to six adults for which the City has issued a
Special Use Permit (SUP)
State-licensed facilities or sober living homes which require but have not
obtained a CUP or SUP and are operating in violation of City zoning regulations
State-licensed facilities operating outside of the City’s limits but within the 650-
foot radius.
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The attached separation map indicates that there are four facilities on two properties
with six or fewer beds licensed by the DHCS at 319 University, Units A and B and
326/328 University Drive; both properties are within 650 feet of the subject property in
the unincorporated County area across Santa Ana Avenue to the east (See Attachment
1). Refer to Table 1 below for details.
TABLE 1
SEPARATION MAP SUMMARY
Location Status
319 – A University Drive1 State-licensed drug and alcohol treatment facility
(residential detox) serving up to 6 persons – men only
319 – B University Drive1 State-licensed drug and alcohol treatment facility
(residential detox) serving up to 6 persons – men and
women
326 University Drive2 State-licensed drug and alcohol treatment facility
(residential detox) serving up to 6 persons – men only
328 University Drive2 State-licensed drug and alcohol treatment facility
(residential detox) serving up to 6 persons – women only
1 Two, detached units located on a single parcel
2 Duplex on a single parcel
Group Home Defined
The CMMC contains the following definition of a Single Housekeeping Unit:
Single housekeeping unit means that the occupants of a dwelling unit have
established ties and familiarity with each other, jointly use common areas,
interact with each other, share meals, household activities, and expenses and
responsibilities; membership in the single housekeeping unit is fairly stable as
opposed to transient, members have some control over who becomes a member
of the household, and the residential activities of the household are conducted on
a nonprofit basis. There is a rebuttable presumption that integral facilities do not
constitute single housekeeping units. Additional indicia that a household is not
operating as a single housekeeping unit include but are not limited to: the
occupants do not share a lease agreement or ownership of the property;
members of the household have separate, private entrances from other
members; members of the household have locks on their bedroom doors;
members of the household have separate food storage facilities, such as
separate refrigerators.
The information submitted by the applicant regarding this application and use indicates
that “. . . this type of housing is temporary in nature since it is designed to provide the least
restrictive residential setting until such time as an individual can achieve independent
living.” Additionally, residents have no control over who occupies any of the units and they
are responsible for their own food and meals. There has been no indication that the
operator, Nsight Psychology and Addiction, is a non-for-profit entity; therefore, the
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residential activities of the household are not conducted on a nonprofit basis.
Consequently, staff finds that the site operates as a group home and is subject to the
separation standards contained within CMMC 13-23(b).
Calls for Service
Since January 2015, Code Enforcement staff investigated 12 complaints regarding this
property involving smoking, noise, general complaints about the group home and its lack
of permits, bottle rockets, and large items at the curb. All cases were investigated and
closed by Code Enforcement. There have been no further complaints submitted to Code
Enforcement between October 2016 and the preparation of this staff report.
Between January 2015 and August 12, 2019 (when the Planning Commission staff report
was presented), there have been 17 calls for service, all attributable to the property,
including calls for disturbances/noise, suspicious male, medical aid, annoying calls with
resident as victim, and a missing adult.
Staff will present updated calls for service at the time of the hearing if there are any
changes to the information included in this report.
Overcrowding
This facility houses 30 adult residents. In addition there are two “awake” staff
members/house managers present on the site at all times.
Three units contain three bedrooms and three units contain two bedrooms for a total of
six dwelling units. Each unit contains a living room and kitchen; the three units at the
rear of the property (Units D, E, F) also contain a dining room. Table 2 shows the
occupancy per room by unit:
TABLE 2
UNIT BREAKDOWN
Unit Bedrooms Beds Bathrooms Total Rooms Persons per room1
A 3 6 2 4 1.50
B 2 4 1 3 1.33
C 2 4 12 3 1.33
D 3 6 4 5 1.20
E 2 4 2 4 1.00
F 3 6 4 5 1.20
Totals: 15 30 14 24
1 Based on the number of beds since managers do not sleep on site.
2 Bathroom in garage conversion to office without building permits not included.
The occupancy (ranging from 1.2 to 1.33 persons per room for all but one of the units)
constitutes overcrowding pursuant to the Housing Element of the General Plan, page
HOU-23, which states:
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Overcrowding is defined as a housing unit occupied by more than one
person per room. A severely overcrowded housing unit is one with more
than 1.5 persons per room. A room is defined as a bedroom, living room,
dining room, or finished recreation room, but excludes a kitchen or
bathroom.
This definition is consistent with the Federal HUD standards, which generally define
“overcrowding” to mean housing units with 1.01 or more persons per room (see 42
USCS § 5302(a)(10)). Under this standard, five of the six units would be overcrowded.
Ownership
The City Council adopted Ordinance Nos. 17-05 and 17-06 in May of 2017. These
ordinances changed the submittal requirements for applications for group homes.
Based on these ordinances, applicants are required to provide the following information:
If the applicant and/or operator is a partnership, corporation, firm or
association, then the applicant/operator shall provide the additional names
and addresses as follows and such persons shall also sign the application:
a. every general partner of the partnership;
b. every owner with a controlling interest in the corporation;
c. the person designated by the officers of a corporation as set
forth in a resolution of the corporation that is to be designated
as the permit holder;
The license and permit history of the applicant(s), including whether such
applicant(s), in previously operating a similar use in this or another city,
county or state under license and/or permit, has had such license and/or
permit revoked or suspended, and the reason therefore.
The property owner, Mark Binder of Bjormad LA, LLC, signed the application; Mary
Helen Beatificato is designated as the authorized agent. The applicant and owner
indicated that neither have not applied for a CUP or Operator’s permit in Costa Mesa or
elsewhere and, therefore, have not had such a permit revoked or suspended. The
balance of the other required information was not provided. Should the CUP be
approved, additional information regarding the LLC would be required prior to issuance
of the Operator’s Permit.
JUSTIFICATION FOR DENIAL:
Per CMMC Section 13-323(b), a group home, residential care facility or state-licensed
drug and alcohol treatment facility must maintain a 650-foot separation from any other
property that contains a group home, residential care facility or state-licensed drug and
alcohol treatment facility. The request for Reasonable Accommodation, which would have
allowed a deviation from this separation requirement, was denied by both the Director and
the Planning Commission; therefore, the separation requirements apply. Since four other
state-licensed drug and alcohol treatment facilities exist within 650 feet of the subject
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property, approval would result in an overconcentration of group homes, sober living
homes, and licensed treatment facilities in this neighborhood.
Overconcentration Pursuant to CMMC 13-323(b)
CMMC Section 13-323(b) was amended by Ordinance 17-05 in May of 2017. As
amended, it provides:
The group home, residential care facility or state-licensed drug and
alcohol treatment facility is at least six-hundred fifty (650) feet from any
property, as defined in Section 13-321, that contains a group home, sober
living home or state-licensed drug and alcohol treatment facility, as
measured from the property line, unless the reviewing authority
determines that such location will not result in an over-concentration of
similar uses. (Emphasis added.)
The effect of this amendment is to allow the City Council to approve deviations to the
separation requirement where the evidence shows that such location will not result in an
over-concentration. Should the City Council be unable to make all findings necessary to
grant a Reasonable Accommodation, (i.e., if the finding that accommodation is
“necessary” within the meaning of the federal and state fair housing laws cannot be
made), the City Council retains the ability to waive the separation requirement if
supported by the evidence and approve this CUP.
ENVIRONMENTAL DETERMINATION:
The project is categorically exempt from the provisions of the California Environmental
Quality Act (CEQA) under CEQA Guidelines Section 15301, Existing Facilities. However,
pursuant to Public Resources Code Section 21080(b)(5) and CEQA Guidelines Section
15270(a), CEQA would not apply to this project if the requests are denied and the project
would not be carried out.
ALTERNATIVES:
The City Council may take any of the following actions on this appeal:
Uphold the decision of the Planning Commission and deny Reasonable
Accommodation RA-19-06 and deny CUP PA-16-63; or
Reverse the decision of the Planning Commission and approve Reasonable
Accommodation RA-19-06 and CUP PA-19-63. Direct staff to modify the
Resolution to reflect Council’s decision; or
Uphold the decision of the Planning Commission to deny Reasonable
Accommodation RA-19-06 and make the finding pursuant to Section 13-323(b) that
approval of the CUP will not result in overconcentration and, thereby, approve CUP
PA-16-63. Direct staff to modify the Resolution to reflect Council’s decision.
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FISCAL REVIEW:
The adoption of this Resolution will not have any fiscal impact on the City’s budget.
LEGAL REVIEW:
The report and draft Resolution has been reviewed and approved as to form by the City
Attorney’s Office.
PUBLIC NOTICE:
Pursuant to Title 13, Section 13-29(d), of the CMMC, three types of public notification
have been completed no less than 10 days prior to the date of the public hearing:
1. Mailed notice. A public notice was mailed to all property owners and occupants
within a 500-foot radius of the project site. The required notice radius is
measured from the external boundaries of the property. On-site posting. A public
notice was posted on each street frontage of the project site.
2. Newspaper publication. A public notice was published once in the Daily Pilot
newspaper.
As the date of this report, staff has received no comments regarding the CUP or
Reasonable Accommodation. In response to the notice for the Planning Commission
meeting, two emails from residents opposed to the project and one letter from the
applicant responding to the staff report were received. Additionally, a list of the calls for
service supplied by the Police Department in response to an inquiry by the applicant was
included in the correspondence (Attachment 8). Any correspondence received after the
publication of the staff report will be forwarded to the City Council separately.
CITY COUNCIL GOALS AND PRIORITIES:
This item is administrative in nature.
CONCLUSION:
The applicant has requested a CUP and a Reasonable Accommodation to allow a group
home with seven or more occupants within 650 feet of two properties that contain four
state-licensed drug and alcohol treatment facilities. The applicant has failed to
demonstrate that all of the required findings can be made. Therefore, staff recommends
that the City Council uphold the Planning Commission’s decision to deny both Reasonable
Accommodation RA-19-06 and Conditional Use Permit PA-16-63.
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WILLA BOUWENS-KILLEEN, AICP BARRY CURTIS, AICP
Zoning Administrator Director of Economic & Development
Services
KELLY A. TELFORD, CPA KIMBERLY HALL BARLOW
Director of Finance City Attorney
ATTACHMENT: 1. Separation Map
2. Requests for Reasonable Accommodation dated August 3, 2018 and
September 28, 2018
3. Reasonable Accommodation denial dated April 5, 2019
4. Appeal of Reasonable Accommodation denial dated April 12, 2019
5. Planning Commission Resolution PC-19-39 denying PA-16-63/RA-19-06
6. Applicant’s Appeal of the Planning Commission’s decision dated August
13, 2019
7. City Council Resolution Upholding the Decision of the Planning
Commission and denying CUP PA-16-63/RA-19-06
8. Correspondence
Owner: Mark Binder
Bjormad, LLC
211 Heliotrope Avenue
Corona del Mar, CA 92650
Applicant: Mary Helen Beatificato
28562 Oso Parkway #D424
Rancho Santa Margarita, CA 92688
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