MEETING DATE: DEPARTMENT: SUBJECT: RECOMMENDED …

MEETING DATE: May 13, 2015

PREPARED BY: Jeff Murphy, Director DEPT. DIRECTOR: Jeff Murphy

DEPARTMENT: Planning & Land Use INTERIM CITY MGR: Larry Watt

SUBJECT:

An informational report on the State regulations pertaining to drug/alcohol treatment homes in residential areas and the status of the lawsuit filed related to the City of Newport Beach’s and City of Costa Mesa’s “Sober Living Ordinance.” RECOMMENDED ACTION: Receive the report. STRATEGIC PLAN: Not applicable. FISCAL CONSIDERATIONS: Staff time required to develop this report is covered under the Department’s current budget. BACKGROUND: On October 8, 2014, as part of a future Agenda Item Request, Councilmember Muir moved, seconded by Mayor Gaspar that staff provide an overview of the regulations pertaining to sober living facilities. During discussion, Council also requested a status of the lawsuit filed related to the City of Newport Beach’s “Sober Living Ordinance.” This Agenda Report responds to the Council’s request. ANALYSIS

A. State Regulations The California Department of Alcohol and Drug Program (ADP) regulates residential facilities that provide nonmedical recovery and treatment services for users of alcohol and other drugs. Such treatment facilities are defined as “any facility, building, or group of buildings which is maintained and operated to provide 24-hour, residential, nonmedical alcoholism or drug abuse recovery or treatment services” (9 CCR Section 10501(a)(27)).

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State law requires an ADP license for any facility (irrespective of the number of tenants occupying the home) that provides services designed to promote treatment and maintain recovery for alcohol or drug problems and may include any one of the following: detoxification, group sessions, individual sessions, educational sessions, and/or alcoholism or drug abuse recovery or treatment planning (9 CCR Section 10501(5)). The code section further states that residential treatment facilities serving six or fewer persons are considered a residential use of property. Such treatment facilities still require a license from the ADP, but the local jurisdiction can only apply those local development regulations required of any other single-family dwelling (i.e. building permit) (H&S Code Section 11834.20-11834.25). Conversely, a local jurisdiction may impose additional zoning restrictions (i.e. use permit) when the residence offers treatment and recovery services to seven or more residents. Separate from licensed treatment facilities, there are facilities in where persons in a residence agree to stay “clean and sober” during their residency. No formal substance abuse treatment programs or counseling are provided in the residence; the home is only used by recovering alcoholics and drug abusers who live communally in an effort to support each other’s recovery. These include cooperative living arrangements with a commitment or requirement to be free from alcohol and other mind-altering drugs. Such facilities are commonly known as “sober living” homes, and they are not regulated by the State of California.

B. City Regulations

Facilities that offer the previously discussed recovery and treatment services to seven or more residents in a single-family home are defined as “Residential Care, General” and permitted as follows:

• For higher density zones (R-11, R-15, R-20, R-25, P/SP), permitted with a Major Use Permit

• For lower density zones (RR, RR-1, RR-2, RS-11, R3, R-5, R-8), permitted with approval of a Major Use Permit AND must be located on a prime arterial circulation element road as shown on the General Plan

• All other Zones: Not permitted

Recovery and treatment services offered to six or fewer residents in a home are allowed in all residential zones and permitted as a single-family home. The City does not regulate sober living homes.

C. Status of Newport Beach Lawsuit1

In the mid-2000s, the City of Newport Beach (approximate population of 87,000) noticed a significant increase in the number of sober living homes operating in residential neighborhoods (upwards of 55). Similar to Encinitas, such homes were generally permitted in residential zones without the need for a discretionary permit (i.e. no use permit required).

1 Pacific Shores Properties, LLC v City of Newport Beach and Newport Coast Recovery, LLC v City of Newport Beach

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By 2007, some residents complained to the Newport Beach City Council that their neighborhoods were “inundated” with recovery homes, some in close proximity to each other. In addition, the residents claimed that similar to Short Term Vacation Rental homes, the residents of these homes were transitory in nature and, therefore, the use should be regulated.

On January 23, 2007, members of the public submitted a petition signed by 88 residents asking the City Council to address the issue. In response, a series of public meetings were held and the City passed a series of moratoria in 2007 followed by a permanent zoning ordinance in 2008.

Among other restrictions, the city’s adopted ordinance prohibited sober living homes in residential zones. The exception was in the city’s multifamily residential zones, where sober living facilities were permitted with an approved use permit (Attachment A).

Shortly after adoption, the ordinance was challenged by two organizations who argued that the new code violated anti-discrimination and fair housing laws, since those recovering from addiction are considered a protected group under federal law. The city argued the language of the ordinance was not discriminatory, but necessary to address the adverse impacts such facilities may have in a residential neighborhood (Attachment B). Staff contacted the city of Newport Beach and confirmed that in March 2014, the Federal Ninth Circuit Court declared the city’s “Sober Living Ordinance” unconstitutional in that it violated the fair housing and anti-discrimination provisions of Title VII of the 1964 Civil Rights Act. This action means that the case will head back to trial at the Federal District Court level. The Ninth Circuit directed the District (trial) Court to consider all evidence which may show discriminatory intent by the City when it enacted the Ordinance which was not considered in the original trial. This evidence would include, among other things, Council meeting minutes, citizen testimony, Council deliberations, and the empirical evidence showing that, after passage of the Ordinance, the number of “safe homes” was reduced dramatically.

D. Status of Costa Mesa Lawsuit2

According to our City Attorney’s Office, there is currently another so-called “sober living ordinance” enacted by the City of Costa Mesa that has been challenged in federal court on similar grounds as the City of Newport Beach’s ordinance. Enacted in October 2014, Costa Mesa’s ordinance, however, differs substantially from Newport Beach’s. Among other things, Costa Mesa’s ordinance requires a 650’ buffer between facilities, limits the number of beds in the homes to seven, requires mandatory employee background checks, and applies only to unlicensed group homes operating in single-family residential zones. See Attachment C for a copy of the ordinance. Moreover, beginning on January 8, 2015, Costa Mesa’s ordinance implemented a 90-day application period for existing group home operators to request permission to remain open. Within one year, permitted businesses must adapt to the new law’s requirements

2 Solid Landings Behavioral Health, Inc., et al. v. City of Costa Mesa

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while unsanctioned facilities will be required to move elsewhere. Costa Mesa is currently home to about 200 sober living facilities. Sober living operators in Costa Mesa, however, filed suit in federal court claiming that the Court of Appeal’s ruling in the City of Newport Beach case should also apply to find that Costa Mesa’s ordinance was intended to be discriminatory against them. In response, Costa Mesa filed a 12(b)(6) motion, much like a demurrer in state court, challenging the legal sufficiency of the operators’ lawsuit. This motion was heard by the same District Court Judge, Judge James Selna, who had previously ruled on the City of Newport Beach case. On January 23, 2015, Judge Selna granted Costa Mesa’s motion finding that its ordinance had no discriminatory intent. Like a demurrer, however, the Court allowed the operators an opportunity to amend their original complaint. Thereafter, Costa Mesa filed a second 12(b)(6) motion to this amended complaint. On April 10, 2015, the hearing on this second motion was heard. The Court’s tentative ruling before the hearing was to grant Costa Mesa’s motion resulting in the dismissal of the operators’ lawsuit finding, once again, that Costa Mesa’s ordinance was not intended to be discriminatory. Following the hearing, however, the Court took the matter under submission. Once a final decision is made, we will notify the City Council of the Court’s ruling.

ENVIRONMENTAL CONSIDERATIONS: Pursuant to Public Resources Code Section 21065, this action does not constitute a “project” within the meaning of the California Environmental Quality Act (CEQA) in that it has no potential to cause either a direct physical change in the environment, or a reasonable indirect physical change in the environment, and therefore does not require environmental review. The action being considered by the Council involves an overview of the state regulations pertaining to drug/alcohol treatment homes in residential areas and the status of the lawsuit filed on the City of Newport Beach’s “Sober Living Ordinance.” ATTACHMENTS: Attachment A: Newport Beach Ordinance

Attachment B: Opinion United States Court of Appeals for the Ninth Circuit

Attachment C: Costa Mesa Ordinance

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Attachment A: Newport Beach Ordinance

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ORDINANCE NO. 2008-

AN ORDINANCE OF THE CITY COUNC~ OF THE CITY OF NEWPORT BEACH,CALIFORNIA AMENDING VARIOUS PROVISIONS OF TITLE 20 OF THENEWPORT BEACH MUNICIPAL CODE RELATING TO ALL CATEGORIES OFGROUP USES, REASONABLE ACCOMMODATION PROVISIONS FOR THEDISABLED AND NONCONFORMING STRUCTURES AND USES

WHREAS, on February 13, 2007, the City Council adopted Resolution No. 2007-10 initiatingan amendment to Title 20 of the Newport Beach Municipal Code to revise land useclassifications and definitions related to group occupancies;

WHREAS, on April 24,2007, the City Council adopted Ordinance No. 2007-8, which, amongother things, imposed a moratorium on the establishment of new group residential uses anddirected the Planning Department, in cooperation with the City Attorney, to analyze the extent ofregulatory controls affecting group residential uses and required in residential districts;

WHREAS, on May 30,2007, the City Council adopted Ordinance No. 2007-10, extending themoratorium for a period of five months through October 30,2007;

WHREAS, on October 17,2007, the City Council adopted Ordinance No. 2007-16, extendingthe moratorium for an additional twelve months;

WHREAS, the Planning Commission held a public hearing on June 21,2007, August 23, 2007and September 20, 2007, in the City Hall Council Chambers, 3300 Newport Boulevard, NewportBeach, California, on the proposed amendments. A notice of time, place, and purpose of themeeting was given in accordance with the Municipal Code;

WHREAS, the Planning Commission Resolution No. 1731 recommended that the City Counciladopt amendments to Title 20 of the Newport Beach Municipal Code as provided for in ExhibitsA, B, C, D, and E to that Resolution;

WHREAS, the City Council has considered Resolution No. 1731 and the amendments therein;

WHREAS, this code amendment is not subject to the California Environmental Quality Act(CEQA) because the proposed code amendment will not result in a direct or reasonablyforeseeable indirect physical change in the environment (Section 15060(c)(2) of the CEQAGuidelines) and this code amendment is covered by the general rule that CEQA applies only toprojects that have the potential for causing a significant effect on the environment (Section15061(b)(3) of the CEQA Guidelines); moreover, this code amendment is also exempt from CEQApursuant to Section 15305 of the CEQA Guidelines (minor alterations in land use).

WHREAS, the City Council held a public hearing on Januar 8, 2008, in the City Hall CouncilChambers, 3300 Newport Boulevard, Newport Beach, California, on this proposed ordinance.

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Notice of the time, place and purpose of the meeting was given in accordance with the MunicipalCode; and

WHREAS, the City Council makes the following findings in conjunction with this Ordinance:

1. The recitals set forth above are true and correct and hereby incorporated by reference.

2. The City recognizes and agrees that the federal Fair Housing Act and the Fair HousingAct Amendments (42 U.S.c. § 3601), provides protections for persons with disabilities. TheFair Housing Act, however, does not preempt local zoning laws. The City may adopt, pursuantto its police power, zoning ordinances to protect the public health, welfare and safety that areconsistent with state and federal law, including the Fair Housing Act and the Fair Housing ActAmendments. The adoption of zoning ordinances and land use planning is a fundamentalfunction of local government.

3. The City recognizes and agrees that the Fair Housing Act and other state and federal laws

(i.e. Americans with Disabilities Act), provide that individuals recovering from drug and alcoholaddiction are deemed disabled;

4. The State of California via the California Department of Alcohol and Drug Programs

("ADP") licenses residential facilities that provide nonmedical recovery, treatment anddetoxification services for users of alcohol and other drugs. Such a treatment facility is definedas "any premises, place or building that provides 24-hour residential nonmedical services to

adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse orabuse, and who need alcohol, drug, or alcohol and drug recover treatment or detoxificationservices." (Health and Safety Code Section 11834.02). Residential treatment facilities servingsix or fewer persons are considered a residential use of property and must be treated similarly assingle-family residences in the zone they are located. These are defined in the ordinance asresidential care facilities, small licensed. The City does currently treat, and proposes to continueto treat, residential care facilities, small licensed, in accordance with state law.

5. In addition to licensed residential care facilities, there are unlicensed care facilities in

where persons in a residence agree to stay "clean and sober" during their residency. Suchfacilities are commonly known as "sober living" homes and are unlicensed, not regulated by theState of California and its residents are transitory in nature. The exact nature of these facilities,however, is not known. ADP has reported to the State Legislature that it receives on average 125complaints a year regarding sober living "homes, with many complaints indicating that unlicensedfacilities are offering addiction treatment services without the required license. State law requiresa license for any facility providing a service designed to promote treatment and maintainrecovery from alcohol or drug problems and may include anyone of the following:detoxification, group sessions, individual sessions, educational sessions, and/or alcoholism ordrug ábuse recovery or treatment planning (9 CCR Section 10501(5)). Many facilities appear tobe advertising such services but do not have a license.

6. Evidence has been presented that there is a high degree of transiency among persons

living in group home settings and that transiency (due to the failure of an occupant to comply

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with rules or the successful completion of a program) is an important element of certain groupliving arrangement.

7. The City has a disproportionately high number of licensed and unlicensed residential

group uses serving the disabled recovering from drug or alcohol use. Specifically: (i) the Cityhas 2.63 licensed recovery beds per thousand residents, the highest ratio of any city in OrangeCounty; (ii) the City's contains 2.7 - 2.8% of the total population of Orange County, but is hostto approximately 14.6% of all licensed residential beds in the County; (iii) the City has at least26 licensed residential alcohol and drug treatment and recovery facilities that provide a total of213 licensed residential beds, and are licensed for a total occupancy of 23 8 individuals. Three ofthese facilities are treatment locations only; (iv) the City has at least 55 known unlicensedfacilities, mostwith 6 or fewer residents; (v) combining the known number of licensed beds withan estimate of known unlicensed beds, the City has 614 total recovery beds within the city limits.The City is likely to have the highest amount of residential recover facilities in Orange Countyand possibly the State of California. Analysis by the City demonstrates that, based on the 2003-

2004 National Survey on Drug Use and Health, the City has approximately twice the licensedbed days needed on an annual basis.

8. In conformance with privacy rights under the California Constitution, the City's ZoningCode does not limit the number of related or unrelated persons, whether or not disabled, whochoose to live together as a single housekeeping unit.' Single housekeeping unit is defined in theordinance.

9. The fundamental precept of the City's Zoning Code provisions relative to residentialzones is that individual dwellng units are intended for the occupancy and use of single

housekeeping units. Accordingly, the City prohibits group residential uses (as defined in theproposed ordinance) such as boarding or rooming houses, dormitories, fraternities, sororities andsingle-room occupancy hotels in residential zoning districts in the City because such groupresidential uses are frequently transient and institutional in nature and differ in character andCreate impacts on residential neighborhoods from single house keeping units.

II

10. Convalescent homes, hospitals, and SRO residential hotels are also not compatible withresidential areas, and no such facilities are located in residential districts in the City, and the City

. does not desire to permit such facilities in residential districts.

11. The California Department of Corrections has reported that approximately 70 percent ofpersons on parole wil be returned to prison each year because they have either been convicted ofnew crimes or have violated the conditions of their parole. Residences housing two or moreparolees may pose a danger to the safety of the community and adjacent residents, and the Citydoes not intend to permit such uses.

12. The City has received evidence of increasing numbers of residential care facilities that donot house permanent residents and operate more like institutional and boarding housing uses thanas single housekeeping units. These uses are concentrated in residential zoning districts R-1.5,R-2 and MFR. Uses such as parolee/probationer homes, group residential uses, non-residentialuses, and other uses operate as businesses in residentially zoned areas of the City and place

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incompatible uses in residential neighborhoods, contrary to the policies in the City's Land UseElement.

13. Evidence presented to the City reveals that certain areas of the City, including WestNewport and the central Balboa Peninsula have significantly higher numbers of group residentialuses than other parts of the city, and than other parts of the state. City staff distributed aquestionnaire asking about impacts caused by. group residential uses and revealed the followingconcerns and secondary impacts: extensive secondhand smoke; impacts to traffc and parking;conversion of garages to other uses; slower or gridlocked transportation routes, if such routes areblocked by transit vans; more frequent deliveries (laundry, food, medicine, offce goods) than istypical for a residential area; noise and traffic associated with more frequent trash collection;lack of frequent trash collection, in some instances, leading to vermin and odors; personsunwillingly removed from the facilities left "on the streets" with few resources to return home,leading to scavenging or petty theft; excessive debris, including cigarette butts, on sidewalks, ingutters, on streets; and/or illegal smoking in public places where smoking is banned, includingOceanfront Walk and beaches; excessive noise, fighting and loud offensive language. Suchactivity changes the residential character of the neighborhood and is not beneficial to persons inrecovery as they attempt to re-integrate their new sober lifestyle into typical society. Sucheffects essentially "institutionalize" their recovery efforts as well as the neighborhood.

14. In the R-1.5, R-2 and MFR Districts near the beach, where residential care facilities areclustered, most properties are narrow, not more than 30 feet wide, with building set back onlythree feet from the property line, resulting in neighboring windows less than six feet away fromeach other. Only one arterial roadway, Balboa Boulevard, exists in the area. Other roads areonly 30 feet wide, with alleys as narrow as 10 feet across. Because of these crowded conditions,and to implement the City's Land Use Element and to maintain the character of residentialneighborhoods, the City does not permit group residential units, such as boarding houses,dormitories, fraternities, and sororities, to be located in residential zoning districts. As stated

above, such group residential uses are frequently transient and institutional in nature and differ in

character and create impacts on residential neighborhoods from single housekeeping units.

15. The City has received evidence that, in several instances, two or more licensed orunlicensed residential care programs are administered by the same owner, operator, managementcompany or licensee, in a manner in which participants in two or more care programs participatesimultaneously in any care or recovery activities commonly administered. In such case, the useshall be subject to the regulations of the ordinance as such use evades the intent of Californialaws allowing facilities serving six or fewer persons in one dwelling unit to be treated as singlefamily homes.

16. The City is concerned with the impacts of group residential uses and residential care useson the residential character of the neighborhood and how it impacts the disabled. The loss ofresidential characteristics of a neighborhood in which residential care facilities serving thedisabled cluster has an adverse effect on the welfare of the individuals receiving services fromthe facility and defeats the purpose of community-based recovery. The American PlanningAssociation's Policy Guide on Community Residences, which supports community residences,states that community residences should be scattered throughout residential districts rather than

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being concentrated on any single block or in any single neighborhood. If several residential carefacilities locate next to one another, or are placed on the same block, the ability of the residentialcare facilities to achieve normalization and community integration would be compromised. Theexisting social structure of a neighborhood can accommodate no more than one or two residentialcare facilities on a single block. The Departments of Justice and Housing Urban Developmenthave stated that a neighborhood composed largely of residential care facilities could adverselyaffect individuals with disabilities and would be inconsistent with the objective of integratingpersons with disabilities into the community. The California Research Bureau similarly foundthat facilities should be scattered throughout residential districts, and facilities so denselyclustered as to recreate an institutional environment would defeat the purpose of community-based care.

17. The City desires to maintain zoning provisions benefiting disabled persons by allowingdisabled persons to live in residential districts in residential care facilities, while forbidding allother group homes in residential districts, but desires to ensure that the uses are consistent withthe residential character of neighborhoods and do not recreate an institutional environment thatwould defeat the purpose of community-based care. The City further desires to ensure thatunlicensed residential care facilities purporting to serve the disabled are operating in compliancewith City, state, and federal laws and regulations. To achieve these purposes and to providedisabled persons with an equal opportunity to use and enjoy a dwelling in the City's residentialzoning districts, and in recognition of the services that may be required by the disabled, theproposed ordinance allows residential care facilities, general and small unlicensed, to be locatedin the MFR zone with a use permit, while prohibiting all other group residential uses.Residential care facilities, small licensed, continue to be permitted in all residential districts asrequired by State law. Land Use Element Policy 6.2.7 provides that the City shall regulateresidential and day care facilities to the maximum extent allowed by federal and state law tominimize impacts on residential neighborhoods.

18. To ensure that the City complies with federal and state law, the proposed ordinancecontains standards and procedures for granting a reasonable accommodation to its zoning andland use regulations, policies and practices when needed to provide an individual with adisability an equal opportunity to use and enjoy a dwelling, where such an accommodation doesnot cause an undue financial or administrative burden or does not result in a fundamentalalteration in the nature of the City's zoning program, as those terms are defined in fair housinglaws and interpretive case law.

NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows:

Section 1. The following definitions contained in Section 20.03.030 (Definitions) of Chapter

20.03 of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code are hereby

amended to read as follows:

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"Section 20.03.030 Definitions

Bedroom: An enclosed space in a structure' that is designed such that it could be used forsleeping purposes and meets the room dimension requirements of the most recent edition of theUniform BuildingCode, is not accessed directly from the garage, and has one or more windows.

Block: An area of land that is bounded on all sides by streets or by streets and a shoreline or bystreets and a cul-de-sac or by any other form of termination of the street (i.e. dead-end not a cul-de-sac).

Fair Housing Laws: The Federal Fair Housing Act, the Americans with Disabilities Act, andCalifornia's Fair Employment and Housing Act, as each Act may be amended from time to time,and each Actsimplementing regulations.

Family: One or more persons living together as a single housekeeping unit in a dwelling unit.

Hearing Offcer: A hearing officer shall mean a person designated by the City Council toconduct hearings as set forth in Chapter 20.91A and Chapter 20.98. A hearing officer shall beselected in a manner that avoids the potential for pecuniary interest or other bias. Thecompensation, if any, of the hearing officer shall be paid by the City and shall not be conditionedon achieving a particular outcome.

Individual with a Disability: As more specifically defined under the fair housing laws, a personwho has a physical or mental impairment that limits one or more major life activities, a personwho is regarded as having that type of impairment, or a person who has a record of that type ofimpairment, not including current, illegal use of a controlled substance.

Integral Facilities: Any combination of two or more Residential Care (Small Licensed, SmallUnlicensed, or General) facilities which mayor may not be located on the same or contiguousparcels of land, that are under the control and management of the same owner, operator,management company or licensee or any affliate of any of them, and are integrated components

. of one operation shall be referred to as Integral Facilities and shall be considered one facility forpurposes of applying federal, state and local laws to its operation. Examples of such IntegralFacilities include, but are not limited to, the provision of housing in one facility and recoveryprogramming, treatment, meals, or any other service or services to program participants inanother facility or facilities or by assigning staff or a consultant or consultants to provideservices to the same program participants in more than one licensed or unlicensed facility.

Integral Uses: Any two or more licensed or unlicensed residential care programs commonlyadministered by the same owner, operator, management company or licensee, or any affiliate ofany of them, in a manner in which participants in two or more care programs participatesimultaneously in any care or recovery activity or activities so commonly administered. Anysuch Integral Use shall be considered one use for purposes of applying federal, state and locallaws to its operation.

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Nonconforming Structure: A structure that was lawfully erected, but which does not conformwith the property development regulations prescribed in the regulations for the district in whichthe structure is located by reason of adoption or amendment of this code or by reason ofannexation of territory to the City. A structure shall not be considered to have been "lawfullyerected" and is an ilegal structure if, at the time of construction or modification, it was

constructed or modified without required permits, including but not limited to permits requiredby any federal, state, or local government agency.

Nonconforming Use: A use of a structure or land that was lawfully established and maintained,but which does not conform with the use regulations or required conditions for the district inwhich it is located by reason of adoption or amendment of this code or by reason of annexationof territory to the City. A nonconforming use includes a use that was lawfully established andmaintained but is conditionally permitted in the district and has not obtained a use permit. A useshall not be considered to have been "lawfully established and maintained" if it was establishedwithout required permits or licenses or has been operated at any time without required permits orlicenses. The required permits and licenses include, but are not limited to, those required by anyfederal, state, or local government.

Single Housekeeping Unit: The functional equivalent of a traditional family, whose membersare an interactive group of persons jointly occupying a single dwelling unit, including the jointuse of and responsibility for common areas, and sharing household activities and responsibilitiessuch as meals, chores, household maintenance, and expenses, and where, if the unit is rented, alladult residents have chosen to jointly occupy the entire premises of the dwelling unit, under asingle written lease with joint use and responsibility for the premises, and the makeup of thehousehold occupying the unit is determined by the residents of the unit rather than the landlordor property manager.

Section 2. The definition of "campus" contained in Section 20.03.030 of the Newport

Beach Municipal Code is hereby deleted.

Section 3. Section 20.05.030 (Residential Use Classifications) of Chapter 20.05 (Use

Classifications) of Title 20 (Planning and Zoning) of the Newport Beach Municipal Code is

hereby amended in its entirety to read as follows:

"Section 20.05.030 Residential Use Classifications

A. Boarding or Rooming House. A residence or dwelling unit, or part thereof, wherein aroom or rooms are rented under two or more separate written or oral rental agreements, leases or

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subleases or combination thereof, whether or not the owner, agent or rental manager resideswithin the residence.

B. Day Care, Limited. Non-residential, non-medical care and supervision of fourteen orfewer persons on a less than twenty-four hour basis. This classification includes, but is notlimited to, nursery schools, preschools, and day care centers for children (large and small familyday care homes) and adults.

1. Large Family Child Care Homes. Day care facilities located in single-familyresidences where an occupant of the residence provides care and supervision for nine to fourteenchildren. Children under the age of i 0 years who reside in the home count as children served bythe day care facility.

2. Small Family Child Care Homes. Day care facilities located in single-familyresidences where an occupant of the residence provides care and supervision for eight or fewerchildren. Children under the age of i 0 years who reside in the home count as children served bythe day care facility.

C. Group ResidentiaL. Shared living quarters, occupied by two or more persons not livingtogether as a single housekeeping unit. This classification includes, without limitation, boardingor rooming houses, dormitories, fraternities, sororities, and private residential clubs, but excludesresidential care facilities (general, small licensed, and small unlicensed) and residential hotels(see Single-Room Occupancy (SRO) Residential Hotels, Section 20.05.050(EE)(4)).

D. Integral Facilities. Any combination of two or more Residential Care (Small Licensed,

Small Unlicensed, or General) facilities which mayor may not be located on the same orcontiguous parcels of land, that are under the control and management of the same owner,operator, management company or licensee or any affiiate of any of.them, and are integratedcomponents of one operation shall be referred to as Integral Facilities and shall be consideredone facility for purposes of applying federal, state and local laws to its operation. Examples ofsuch Integral Facilities include, but are not limited to, the provision of housing in one facility andrecovery programming, treatment, meals, or any other service or services to program participantsin another facility or facilities or by assigning staff or a consultant or consultants to provideservices to the same program participants in more than one licensed or unlicensed facility.

E. Integral Uses. Any two or more licensed or unlicensed residential care programscommonly administered by the same owner, operator, management company or licensee, or anyaffiliate of any of them, in a manner in which participants in two or more care programsparticipate simultaneously in any care or recovery activity or activities so commonlyadministered. Any such Integral Use shall be considered one use for purposes of applyingfederal, state and local laws to its operation.

F. Multifamily ResidentiaL. Three or more dwellng units on a site. This classification

includes mobile home and factory-built housing.

G. Parolee-Probationer Home. Any residential structure or unit, whether owned and/oroperated by an individual or a for-profit or nonprofit entity, which houses two or more parolees -probationers unrelated by blood, marriage, or legal adoption, in exchange for monetary or non-

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monetary consideration given and/or paid by the parolee - probationer and/or any public orprivate entity or person on behalf of the parolee - probationer. A parolee - probationer includes:

(i) 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 afederal parole offcer; (ii) any individual who has served a term of imprisonment in a State prisonand who is serving a period of supervised community custody, as defined in Penal Code Section3000, and is under the jurisdiction of the California Department of Corrections, Parole and

Community Services Division; (iii) an adult or juvenile sentenced to a term in the CaliforniaYouth Authority and who has received conditional and revocable release in the community underthe supervision of a Youth Authority Parole Officer; or (iv) any individual who has beenconvicted of a felony, sentenced to any correctional facility, including County correctionalfacilities, and is under the jurisdiction of any federal, state, or County parole or probation officer.For the purposes of this paragraph, "felony" means a felony as defined by any California orUnited States statute.

H. Residential Care Facilities, General. Any place, site or building, or groups of places,sites or buildings, licensed by the state or unlicensed, in which seven or more individuals with adisability reside who are not living together as a single housekeeping unit and in which everyperson residing in the facility (excluding the licensee, members of the licensee's family, orpersons employed as facility staff is an individual with a disability.

1. Residential Care Facilities, Small Licensed. State licensed facilities that provide care,

services, or treatment in a community residential setting for six or fewer adults, children, oradults and children and which are required by State law to be treated as a single housekeepingunit for zoning purposes. Small licensed residential care facilities shall be subject to all land useand property development regulations applicable to single housekeeping units.

1. Residential Care Facilities, Small Unlicensed. Any place, site or building, or groups of

places, sites or buildings, which is not licensed by the State of California and is not required bylaw to be licensed by the State, in which six or fewer individuals with a disability reside who arenot living together as a single housekeeping unit and in which every person residing in thefacility (excluding persons employed as facility staff) is an individual with a disability.

K. Single-Family ResidentiaL. "Single-Family Residential" means a building or buildings

containing one dwelling unit located on a single lot for occupancy by one family. Thisclassification includes mobile homes and factory built housing.

L. Two-Family ResidentiaL. "Two-Family Residential" means a building or buildingscontaining two dwelling units located on a single lot, each unit limited to occupancy by a singlefamily. This classification includes mobile homes and factory built housing."

11287.0005/1023046.2 9

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Section 4. Paragraph "R" of Section 20.05.040 of the Newport Beach Municipal Code

containing the definition of "Residential Care, General" is hereby deleted. The remaining

paragraphs in such section shall be relettered accordingly.

. Section 5. Section 20.10.020 (Residential Districts: Land Use Regulations) of the Newport

Beach Municipal Code is hereby amended in its entirety to read as follows:

"Section 20.10.020 Residential Districts: Land Use Regulations

The following schedule establishes the land uses defined in Chapter 20.05 as permitted orconditionally permitted in residential districts, and includes special requirements, if any,applicable to specific uses. The letter "P" designates use classifications permitted in residentialdistricts. The letter "L" designates use classifications subject to certain limitations prescribedunder the "Additional Use Regulations" which follows. The letters "UP" designate useclassifications permitted on approval of a use permit, as provided in Chapter 20.91 or 20.91A.The letters "PDIU" designate use classifications permitted on approval of a use permit issued bythe Planning Director, as provided in Chapter 20.91 or 20.91A. The letters "PIU" designate useclassifications which are permitted when located on the site of another permitted use, but whichrequire a use permit when located on the site of a conditional use. Letters in parentheses in the"Additional Regulations" column refer to "Additional Use Regulations" following the schedule.Where letters in parentheses are opposite a use classification heading, referenced regulationsshall apply to all use classifications under the heading.

11287.0005/1023046.2 10

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Residential Districts: Land Use Regulations

P = Permitted

UP = Use pemiitUP-OFC = Use pemlit issued by a Hearing OffcerPDIU = Use permit issued by the Plang Director

L = Limted (see Additional Use Reguations)--- = Not Permtted

RESIDENTIAL

DAY CAR, LIMITED

-LARGE FAMY CHID CAR HOMES

-SMAL FAMY CHILD CAR HOMES

GROUP RESIDENTIAL

MO TI-F AM Y RESIDENTIAL

P AROLEEIPROBATIONER HOME

RESIDENTIAL CAR FACILITIES, GENERA LICENSED

RESIENTIAL CAR FACILITIES, GENERA UNICENSED

RESIDENTIAL CAR FACILITIES, SMAL LICENSEDRESIDENTIAL CAR FACILITIES, SMALUNICENSEDINTEGRA FACILITIES/INGRA USES

SINGLE FAMY RESIDENTIAL

TWO-FAMY RESIDENTIAL

PUBLIC AND SEMI-PUBLIC

CEMETERIS

CLUBS AN LODGES

11287.0005/1023046.2 11

R-A R-l R-L.S R-2 MFR AdditionalRegulations

(A), (B),

(C), (0),

(P), (Q)(N)

PDIU PDf PDIU PDIU PDIUU

P P P P

UP-OFCUP-OFC

P P P P PUP-OFCUP-OFC

P P P P

P P

L-1 L-l L-1 L-1

L-2 L-2 L-2 L-2

P

P (D)

P (D), (E),(M

P (D)

(A), (B),

(C), (P), (Q)

5/13/2015 Item #11A

Residential Distdcts: Land Use Regulations

P = Penntted

UP = Use penntUP-OFC = Use permit issued by a Hearing OffcerPDIU = Use pennt issued by the Plarg Director

L = Limited (see Additional Use Reguations)

--- = Not Penntted


DAY CAR, GENERA

GOVERNNT OFFICES

UP UP UP UP (N)

UP UP UP UP

PAR & RECREATION FACILITllS UP UP UP UP UP

PUBLIC SAFETY FACILITIES UP UP UP UP UP

RELIGIOUS ASSEMBLY UP UP UP UP UP

SCHOOLS, PUBLIC AN PRIVATE UP UP UP UP UP

UTILlTllS, MAOR UP UP UP UP UP

UTILITllS, MINOR P P P P

COMMERCIAL USES

HORTICULTU, LIMTED P

NURSERIS PDIU

VEIlCLEÆQUIMENT SALES AN SERVICES

-COM!RCIAL P ARNG FACILITY L-3 L-3 L-3 L-3

VISITOR ACCOJ\ODATIONS

-BED & BREAKAST INS UP UP (F)

AGRICULTURAL AND EXTRACTIVE USES

11287.0005/1023046.2 12

P

(A), (B),

(C), (P), (Q)

(A), (B),

(C), (Q)

5/13/2015 Item #11A

Residential Distiicts: Land Use Regulations

P = Permitted

UP = Use permitUP-OFC = Use permit issued by a Hearig OffcerPD/U = Use permit issued by the Planning DirectorL = Limited (see Additional Use Regulations)--- = Not Permitted


ANI HUSBANRY PD/U (G)

CROP PRODUCTION p

MIG AND PROCESSING L-4 L-4 L-4 L-4 L-4 (H)

ACCESSORY USES

ACCESSORY STRUCTURS AN USES

(A), (B),

(C), (Q)plo Pro plo PLO PLO (I)

P

TEMPORARY USES(A), (B),

(C), (Q)CIRCUSES AN CARVALS P P P P P (K)

COMMERCIAL FILMIG, LIMTED P P P P P (K)

PERSONAL PROPERTY SALES P P P P P (L)

HELIPORTS, TEJ\ORAY L-5 L-S (J)

REAL ESTATE OFFCES, TEJ\ORAY L-5 L-S L-S L-5 L-5 (B)

Residential DistrIcts:Additional Land Use Regulations

L-1 20 acres minimum.

L-2 Limited to yacht clubs, use permit required.

L-3 Public or no fee private lots for automobiles may be permitted in any residential districtadjacent to any commercial or industrial district subject to the securing of a use permit ineach case.

L-4 See Chapter 20.81: Oil Wells.

L-5 Subject to the approval of the Planning Director.

11287.0005/1023046.2 13

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(A) See Section 20.60.025: Relocatable Buildings.

(B) See Section 20.60.015: Temporary Structures and Uses.

(C) See Section 20.60.050: Outdoor Lighting.

(D) With the exception of uses in the R-1 Zone, any dwellng unit otherwise permitted by thisCode may be used for short term lodging purposes as defined in Chapter 5.95 of theMunicipal Code subject to the securing of:

1. A Business License pursuant to Chapter 5.04 of the Municipal Code.

2.A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 ofthe Municipal Code.

3. A Short Term Lodging Permit pursuant to Chapter 5.95 of the Municipal Code.

(E) See Chapter 20.85: Accessory Dwelling Units.

(F) See Section 20.60.110: Bed and Breakfast Inns.

(G) Keeping of Animals in the R-A District. The following regulations shall apply to thekeeping of animals in the R-A District:

1. Large Animals. The keeping of large animals (as defined in Section 20.030.030)shall be subject to the following regulations:

a. Horses. One horse may be kept for each 10,000 square feet oflot area, upto a maximum of 3 horses, provided the horse or horses are kept forrecreational purposes only. The keeping of 4 or more horses forrecreational uses shall require a use permit issued by the PlanningDirector. The keeping of horses for commercial purposes shall require ause permit issued by the Planning Commission.

b. Other Large Animals. Other large animals, including goats, sheep, pigsand cows, may be kept on lots of 15,000 square feet or more and thenumber shall not exceed 2 adult animals of anyone species.

c. Total Number Permitted. The total number of large animals shall not

exceed 6. Offspring are exempt until such time as they are weaned.

2. Domestic and Exotic Animals. The number of domestic and exotic animals (as

defined in Section 20.03.030) shall not exceed 6. Offspring are exempt up to theage of 3 months. The keeping of 4 or more dogs over the age of three 3 monthsshall require a kennel license pursuant to Section 7.04.090 of the Municipal Code.The keeping of wild animals shall require a permit pursuant to Chapter 7.08 of theMunicipal Code.

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3. Small Animals. The number of small animals, other than domestic and exoticanimals (as defined in Section 20.03.030), shall not exceed 6. Offspring areexempt up to the age of 3 months.

4. Control.

a. Domestic Animals. No such animals, except for cats, shall be permitted torun at large, but shall be confined, at all times within a suitable enclosureor otherwise under the control of the owner of the property.

b. Other Animals. No animal, other than domestic animals, shall bepermitted to run at large, but shall be confined, at all times within asuitable enclosure.

(H) See Chapter 20.81: Oil Wells.

(1) See Section 20.60.100: Home Occupations in Residential Districts.

(J) See Section 20.60.055: Heliports and Helistops

(K) Special event permit required, see Chapter 5.10 of the Municipal Code.

(L) See Section 20.60.120: Personal Property Sales in Residential Districts.

. (M) See Section 20.60.125: Design Standards for Mobile Homes on Individual Lots.

(N See Section 20.60.130: Day Care Facilities for Children.

(0): No residential use constituting a single housekeeping unit may offer or provide servicesto persons not residing on the site, unless the City has approved a use permit allowingsuch use, or in compliance with Section 20.60.100: Home Occupations in ResidentialDistricts.

(P): Persons with disabilities may request a reasonable accommodation from the provisions of

the zoning ordinances under Chapter 20.98: Reasonable Accommodations.

(Q): All uses must obtain business licenses if required by Chapter 5.04 of the MunicipalCode."

Section 6. Section 20.35.030 (PC District: Land Use Regulations) of the Newport Beach

Municipal Code is hereby amended in its entirety to read as follows:

"20.35.030 PC District: Land Use Regulations

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A. Existing Uses. Land uses existing at the time of establishment of a PC Districtshall be permitted to continue as a nonconforming use, pursuant to Chapter 20.62:Nonconforming Structures and Uses. Existing land uses shall either beincorporated as part of the development plan or shall terminate in accordance witha specific abatement schedule submitted and approved as part of the developmentplan. Existing land uses which are prohibited by any provisions of this code shallbe terminated prior to final approval of the development plan.

B. New Uses. No use, other than a use existing at the time of establishment of a PCDistrict, shall be permitted in a PC District except in accord with a valid PCdevelopment plan. Any permitted or conditionally permitted use authorized bythis code and consistent with the General Plan land use designation or

designations for land within the PC District may be included in an approved PCdevelopment plan.

Exceptions:

1. The Planning Director may approve temporary uses and structures

pursuant to Section 20.60.015: Temporary Structures and Uses.

2. Residential Care Facilities, Small Licensed, shall be permitted if

residential uses are otherwise permitted by the PC development plan."

Section 7. Section 20.41.050 (Residential Development: Land Use Regulations) of Chapter

20.41 (Specific Plan District #4 Newport Shores) of Title 20 (Planning and Zoning) of the

Newport Beach Municipal Code is hereby amended in its entirety to read as follows:

"20.41.050 Residential Development: Land Use Regulations

The following schedule establishes the land uses dèfined in Chapter 20.05 as permitted orconditionally permitted in the Newport Shores Specific Plan District residential developmentareas, and includes special requirements, if any, applicable to specific uses. The letter "p'ldesignates use classifications permitted in the Newport Shores Specific Plan District residentialdevelopment areas. The letter "L" designates use classifications subject to certain limitationsprescribed under the "Additional Use Regulations" which follows. The letters "UP" designateuse classifications permitted on approval of a use permit, as provided in Chapter 20.91. Theletters "PDIU" designate use classifications permitted on approval of a use permit issued by thePlanning Director, as provided in Chapter 20.91. The letters "P/U" designate use classificationswhich are permitted when located on the site of another permitted use, but which require a usepermit when located on the site of a conditional use. Letters in parentheses in the "AdditionalRegulations" column refer to "Additional Use Regulations" following the schedule. Whereletters in parentheses are opposite a use classification heading, referenced regulations shall applyto all use classifications under the heading.

11287.0005/1023046.2 16

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Residential Deyelopment: Land Use RegulationsP = Permitted

UP = Use permtPD/U = Use permt issued by the Plang Director

L = Limted (see Additional Use Reguations)--- = NotPemlitted

PUBLIC AND SEMI-PUBLIC

CLUBS AN LODGES

UTILITIES, MIOR

ACCESSORY USES

ACCESSORY STRUCTURS AN USES

11287.0005/1023046.2 17

UP

P

PIU

(A), (B), (C), (J),(K)

(A), (B), (C), (K)

(F)

5/13/2015 Item #11A

Residential Development: Land Use RegulationsP = Permitted

UP = Use permitPDIU = Use permit issued by the Plamung DirectorL = Limited (see Additional Use Reguations)--- = Not Permtted

Residential AdditionalRegulations

TEMPORARY USES (A), (B), (C), (K)

(G)PERSONAL PROPERTY SALES p

REAL ESTATE OFFICES, TElvORAY L-2

Residential Development: Additional Land Use Regulations

L- i Use permit required for multi-family residential uses containing three or more dwelling

units. The Planning Commission before approving a use permit for any developmentcontaining three or more dwelling units shall find:

1. That the development will not be detrimental to or out of character with the

surrounding development.

2. That the development does not exceed the density, height, and floor area limits

established in this section.

3. That in addition to the basic outdoor living space requirement of ten percent of the

. buildable area, there wil be additional outdoor living space.





(D) Any dwellng unit otherwise permitted by this Code may be used for short term lodgingpurposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of:

1. ABusiness License pursuant to Chapter 5.04 of the Municipal Code.

11287.0005/1023046.2 18

5/13/2015 Item #11A

2. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 ofthe Municipal Code.


(E) See Chapter 20.85: Accessory Dwelling Units.

(F) See Section 20.60.100: Home Occupations in Residential Districts.

(G) See Section 20.60.120: Personal Property Sales in Residential Districts.

(H) See Section 20.60.130: Day Care Facilities for Children.

(1) Purposely left blank.

(J) No residential use constituting a single housekeeping unit may offer or provide servicesto persons not residing on the site, unless the City has approved a use permit allowingsuch use, or in compliance with Section 20.60.100: Home Occupations in ResidentialDistricts.

(K) Persons with disabilities may request a reasonable accommodation from the provisions of


I,ì

iiI

i

I

f

r

I

I

i

¡

(L) All uses must obtain business licenses if required by Chapter 5.04 of the MunicipalCode."

Section 8. Section 20.41.070 (Commercial Development: Land Use Regulations) of Chapter

20.41 (Specific Plan District #4 Newport Shores) of Title 20 (Planning and Zoning) of the

Newport Beach Municipal Code is hereby amended in its entirety to read as follows:

"20.41.070 Commercial Development: Land Use Regulations

The following schedule establishes the land uses defined in Chapter 20.05 as permitted orconditionally permitted in commercial development areas, and includes special requirements, ifany, applicable to specific uses. The letter "P" designates use classifications permitted in

commercial development areas. The letter"L" designates use classifications subject to certainlimitations prescribed under the "Additional Use Regulations" which follows. The letters "UP"designate use classifications permitted on approval of a use permit, as provided in Chapter 20.91.The letters "PD/U" designate use classifications permitted on approval of a use permit issued bythe Planning Director, as provided in Chapter 20.91. The letters "PIU" designate use

classifications which are permitted when located on the site of another permitted use, but which

11287.0005/1023046.2 19

5/13/2015 Item #11A

require a use permit when located on the site of a conditional use. Letters in parentheses in theIIAdditional Regulationsll column refer to IIAdditional Use Regulationsll following the schedule.

Where letters in parentheses are opposite a use classification heading, referenced regulationsshall apply to all use classifications under the heading.

Commercial Development: Land Use RegulationsP = Permitted

UP = Use PermitPDIU = Use permit issued by the Planning DirectorL = Limited (see Additional Use Regulations)--- = Not Permitted

Commercial AdditionalRegulations

PUBLIC AND SEMI-PUBLIC (A), (B), (C)

CLUBS AN LODGES (K)

CULTUR INSTITUTIONS P (K)

DAY CAR, GENERA UP

RELIGIOUS ASSEMBLY L-1

UTILITIES, MIOR P

COMMERCIA USES (A), (B),. (C)

ANAL SALES AN SERVICES

-ANAL BOARING

-ANAL GROOMIG PDIU

-ANIMAL HOSPITALS UP

-ANAL RETAI SALES PDIU

. ARTISTS' STUDIOS

BANS/SAVIGS AN LOANS

P (G)

p

-WITH DRIVE-UPIDRIVE THROUGH SERVICE UP

11287.0005/1023046.2 20

5/13/2015 Item #11A


UP = Use PermitPDIU = Use permit issued by the Planning DirectorL= Limited (see Additional Use Regulations)--- = Not Permitted


BUIDING MATERIALS AN SERVICES P

CATERIG SERVICES P

CO:MMERCIAL RECREATION AN ENTERTAIMENT UP (G), (K)

EATING AN DRIG ESTABLISHMNTS UP

-FULL SERVICE, HIGH TUROVER UP (D), (G), (K)

-FULL SERVICE, LOW TUROVER UP (D), (G), (K)

-FULL SERVICE, SMALL SCALE PDIU (D), (G), (K)

-TAK-OUT SERVICE UP (D), (G), (K)

-TAK-OUT SERVICE, LIMTED PDIU (D), (G), (K)

-ACCESSORY P (D), (G), (K)

-BARS AN COCKTAI LOUNGES UP (D), (G), (K)

FOOD AN BEVERAGE SALES P (K)

MAR SALES AN SERVICES

-BOAT RENTAL, AN SALES UP

-ENTERTAINT AN EXCURSION SERVICES L-3

OFFICES, BUSINSS AN PROFESSIONAL L-4

PERSONAL IMROVEMENT SERVICES PDIU (G)

PERSONAL SERVICES P

-MASSAGE ESTABLISHMNTS UP (E)

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5/13/2015 Item #11A


UP = Use PermitPDIU = Use permit issued by the Planning DirectorL = Limited (see Additional Use Regulations)--- = Not Permitted


POSTAL SERVICES P

PRITING AN DUPLICATING SERVICES P

RET AI SALES P

TRA VEL SERVICES P

VEHICLEÆQUIMENT SALES AN SERVICES

-SERVICE STATIONS UP (F), (K)

VISITOR ACCOMlODATIONS

-BED AN BREAKAST INS PDIU

-HOTELS, MOTELS AN TIM-SHAS UP (H)

ACCESSORY USES (A), (B), (C)

ACCESSORY STRUCTURS AN USES P/U

TEMPORARY USES

OUTDOOR STORAGE & DISPLAY, TEMPORAY P

(A), (B), (C)

(B)

(J)

(B)

CHRSTMAS TREE/PUMKI SALES L-2

REAL ESTATE OFFICES, TEMPORAY P

L-1 Limited to facilities occupying less then 5,000 square feet; use permit required.


11287.0005/1023046.2 22

5/13/2015 Item #11A

L-3 Permitted, provided operations have first secured a marine activities permit issued by theHarbor Resources Director (see Chapter 17.10 of the Municipal Code).

L-4 Services involving the assembly or meetings of seven or more persons shall be limited toabove the first floor, where the first floor is occupied by a permitted use or use permittedwith a use permit.

. (A) See Section 20.60.025, Relocatable Buildings.

(B) See Section 20.60.015, Temporary Structures and Uses.

(C) See Section 20.60.050, Outdoor Lighting.

(D) See Chapter 20.82, Eating and Drinking Establishments.

(E) See Chapter 20.87, Massage Establishments.

(F) See Chapter 20,80, Automobile Service Stations.

. (G) See Section 20.60.085, Uses Requiring City Manager ApprovaL.

(H) See Chapter 20.84, Time Share Developments.

(I) Special events permit required, see Chapter 5.10 of the Municipal Code.

(J) See Section 20.60.105, Outdoor Storage and Display.

(K) See Chapter 20.89, Alcoholic Beverage Outlets."

Section 9. Paragraph "B" of Section 20.43.040 (Commercial Development: Land Use

Regulations) of the Newport Beach Municipal Code is hereby amended in its entirety to read as

follows:

"Section 20.43.040 (Cannery ViIagelMcFadden Square - Commercial)

B. The following schedule establishes the land uses defined in Chapter 20.05 aspermitted or conditionally permitted in Cannery Village/McFadden Square

Specific Plan District, and includes special requirements, if any, applicable tospecific uses. The letter "P" designates use classifications permitted in CanneryVilage/McFadden Square Specific Plan District. The letter "L" designates useclassifications subject to certain limitations prescribed under the "Additional UseRegulations" which follows. The letters "UP" designate use classificationspermitted on approval of a use permit, as provided in Chapter 20.91. The letters

11287.0005/1023046.2 23

5/13/2015 Item #11A

"PDIU" designate use classifications permitted on approval of a use permit issuedby the Planning Director, as provided in Chapter 20.91. The letters "P/U"designate use classifications which are permitted when located on the site ofanother permitted use, but which require a use permit when located on the site ofa conditional use. Letters in parentheses in the "Additional Regulations" columnrefer to "Additional Use Regulations" following the schedule. Where letters inparentheses are opposite a use classification heading, referenced regulations shallapply to all use classifications under the heading.

Cannery ViIage/McFadden Square Specific Plan District:Commercial Land Use Regulations

P = Permitted

UP = Use pemùtPDIU = Use permit issued by the P1ang DirectorL = Limited (see Additiona Use Reguations)

--- = Not Peimtted

11287.0005/1023046.2 24

5/13/2015 Item #11A

11287.0005/1023046.2 25

5/13/2015 Item #11A

11287.0005/1023046.2 26

5/13/2015 Item #11A

Canner)' VilagelMcFadden Square Specific Plan District:Commercial Land Use Regulations

P == Penl1ittedUP == Use permitPDfU == Use permit issued by the Planning DirectorL == Limted (see Additional Use Regulations)--- == Not Permitted

-LIMTED

SR RMC RSC AdditionalRegulations

p L-7 P

UP

L-3 P P

P L-6 P

-SELF SERVICE LAUNRIS

RETAIL SALES

TRVEL SERVICES

VISITOR ACCOMMODATIONS

-BED AN BREAKAST INS PDfU PDfU PDIU

-HOTELS, MOTELS AN TI-SHARS UP UP UP (K)

INDUSTRIL (A), (B), (C), (1),(P)

INUSTRY, CUSTOM L-7

INUSTRY, LIMTED L-7

INUSTRY, MA-RELATED UP UP (E)

ACCESSORY USES (A), (B), (C), (P)

ACCESSORY STRUCTURS AN USES P/U P/U PfU

TEMPORARY USES (A), (B), (C), (P)

AN SHOWS p P P (H

L-8 (B)CHRSTMS TREIPUMKIN SALES L-8 L-8

CIRCUSES AN CARVALS P P P (H)

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5/13/2015 Item #11A

Cannery Vilage/McFadden Square Specific Plan District:Commercial Land Use Regulations

P = Pennitted

UP = Use permitPD/U = Use permit issued by the Plang Director

L = Limited (see Additional Use Reguations)

--- = Not Pennitted

SR RMC RSC AdditionalRegulations

COMMRCIAL FILMIG, LIMTED P P P (H)

FAIS AN FESTIVALS P P P (H)

HELIPORTS, TEMPORAY L-S L-S L-8 (L)

OUTDOOR STORAGE & DISPLAY, TEMPORAY P P (1)

REAL ESTATE OFF1CES, TEMPORAY L-S L-S L-8 (B)

RECREATION AN ENTRTAINMNT EVENTS P P P (H)

TRE FAIRS P P P (H)

Cannery ViIagelMcFadden Square Specific Plan District:Additional Commercial Land Use Regulations

L-1 Limited to above the first floor, where the first floor is occupied by a permitted use or usepermitted with a use permit.

L-2 Business and professional offices not providing services to the general public or notancillary to an otherwise permitted use, such as corporate offces, shall be permitted onlyabove the first floor. Services involving the assembly or meetings of seven or morepersons shall be limited to above the first floor, where the first floor is occupied by apermitted use or use permitted with a use permit

L-3 Limited to businesses retailing in goods generally oriented to the casual pedestrianshopper, including antiques, books, clothing, hand crafted items, hobby materials,jewelry, stationary, and works of art. All other uses are subject to the approval of thePlanning Director for compatibility with the objectives of this district.

L-4 Marine-related facilities permitted as an incentive use; other facilities in this useclassification permitted when in conjunction with an incentive use under the provisions ofSection 20.60.080: Marine Incentive Uses. Services involving the assembly or meetings

11287.0005/1023046.2 28

5/13/2015 Item #11A

of seven or more persons shall be limited to above the first floor, where the first floor isoccupied by a permitted use or use permitted with a use permit.

L-5 Marine-related facilities permitted with a use permit as an incentive use; other facilities inthis use classification permitted with a use permit when in conjunction with an incentiveuse under the provisions of Section 20.60.080: Marine Incentive Uses.

L-6 Permitted when in conjunction with an incentive use under the provisions of Section20.60.080: Marine Incentive Uses.

L- 7 Permitted with a use permit when in conjunction with an incentive use under theprovisions of Section 20.60.080: Marine Incentive Uses.



L-10 Limited to above the first floor, wherethe first floor is occupied by a permitted use or usepermitted with a use permit; use permit required.


(B) See Section 20.60.015: Temporar Structures and Uses.


(D) In areas designated for commercial or retail uses and subject to a variable floor area ratio,residential uses are permitted on the second floor or above only. No residential uses shallbe permitted in the commercial area subject to a fixed floor area ratio, specifically theshopping center located immediately southwesterly of the intersection of NewportBoulevard and 32nd Street on Parcels 1, 2, and 3 of Record of Survey 35-25 filed withthe Orange County Recorder.

(E) See Section 20.60.070: Waterfront Development Regulations and Section 20.60.080:Marine Incentive Uses.

(F) See Chapter 20.72: Eating and Drinking Establishments.

(G) Independent massage establishments not permitted (See Chapter 20.87: MassageEstablishments).

(H) Special event permit required, see Chapter 5.10 of the Municipal Code.

(I) See Section 20.60.105: Outdoor Storage & Display.

(J) See Section 20.60.085: Uses Requiring City Manager ApprovaL.

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(K) See Chapter 20.84: Time Share Developments.

(L) See Section 20.60.055: Heliports and Helistops.

(M) See Chapter 20.89: Alcoholic Beverage Outlets.

(N) No residential use constituting a single housekeeping unit may offer or provide servicesto persons not residing on the site, unless the City has approved a use permit allowingsuch use, or in compliance with Section 20.60.100: Home Occupations in ResidentialDistricts.

(0): Persons with disabilities may request a reasonable accommodation from the provisions of


(P): All uses must obtain business licenses if required by Chapter 5.04 of the Municipal

Code."

Section 10. Section 20.43.060 (Residential Land Use Regulations) of Chapter 20.43 (Specific

Plan District #6 Cannery VilagelMcFadden Square) of the Newport Beach Municipal Code is

hereby amended in its entirety to read as follows:

"20.43.060 Residential Land Use Regulations

A. Land Use Designations. The following residential land use designations areestablished:

1. SP-6 (R-1) District.

2. SP-6 (R-2) District.

3. SP-6 (MFR) District.

These designations preserve the existing residential districts within the CanneryVillagelMcFadden Square Specific Plan District, and maintain the developmentstandards that have guided the orderly development of these districts.

The designations, locations and boundaries of these uses are delineated upon the mapentitled "Cannery Village/McFadden Square Specific Plan District, Land Use Plan Map",which map and all information and notations thereon are made a part of this section byreference.

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B. In the following schedule, the letter "P" designates use classifications permitted inthe Cannery Village/McFadden Square Specific Plan District residential areas.The letter "L" designates use classifications subject to certain limitationsprescribed under the "Additional Use Regulations" which follows. The letters"UP" designate use classifications permitted on approval of a use permit, asprovided in Chapter 20.91 or 20.91A. The letters "PIU" designate useclassifications which are permitted when located on the site of another permitteduse, but which require a use permit when located on the site of a conditional use.Letters in parentheses in the "Additional Regulations" column refer to "AdditionalUse Regulations" following the schedule. Where letters in parentheses areopposite a use classification heading, referenced regulations shall apply to all useclassifications under the heading.

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Cannery ViIage/McFadden Square Specific Plan District:Residential Land Use Regulations

R-l R-2 MFR AdditionalRegulations

COMMERCIAL (A), (B), (C),

(G)VEHICLEÆQUI.MNT SALES AN SERVICES

-COMJvIERCIAL PARNG FACILITY UP UP UP

ACCESSORY USES(A), (B), (C),

(G)ACCESSORY STRUCTURS AND USES P/U P/U P/U

Cannery VilagelMcFadden Square Specific Plan District:Additional Residential Land Use Regulations




(D) See Section 20.60.130: Day Care Facilities for Children.

(E): No residential use may offer or provide services to persons not residing on the site, unlessthe City has approved a use permit allowing such use, or in compliance with Section

20.60.100: Home Occupations in Residential Districts.

(F): Persons with disabilities may request a reasonable accommodation from the provisions of


(G): All uses must obtain business licenses if required by Chapter 5.04 of the MunicipalCode."

Section 11. Paragraph "B" of Section 20.44.035 (Residential Equestrian District: SP-7 (REQ))

of Chapter 20.44 (Specific Plan District #7 Santa Ana Heights) of Title 20 (Planning and Zoning)

of the Newport Beach Municipal Code is hereby amended in its entirety to read as follows:

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"Section 20.44.035 (Santa Ana Heights - REQ District)

B. Principal Uses Permitted.

1. The following principal uses are permitted.

a. Single family detached dwellings or single family mobile homes

(one per building site).b. Residential care facilities, small licensed.

c. Parks, playgrounds, and athletic fields (noncommercial).

d. Riding and hiking trails.

e. Small family child care homes (See Section 20.60.130: Day Care

Facilities of Children).

2. The following principal uses are permitted subject to the approval of a use

permit by the Planning Director per Chapter 20.91 :

a. Communication transmitting, reception, or relay facilities.b. Public/private utility buildings and structures.

c. Large family child care homes (See Section 20.60.130: Day Care

Facilities of Children).

3. The following principal uses are permitted subject to the approval of a use

permit by the Planning Commission per Chapter 20.91 :

a. Fire and police stations.

b. Churches, temples, and other places of worship.c. Educational institutions.

d. Libraries.

e. Any other use which the Planning Commission finds consistent with

the purpose and intent of this district."

Section 12. Paragraph "B" of Section 20.44.040 (Residential Single Family District: SP-7

(RSF)) of Chapter 20.44 (Specific Plan District #7 Santa Ana Heights) of Title 20 (Planning and

Zoning) of the Newport Beach Municipal Code is hereby amended in its entirety to read as

follows:

"Section 20.44.040 Residential Single family District: SP-7 (RSF)

B. Principal Uses Permitted.

1. The following principal uses are permitted:

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a. Single-family detached dwellngs or single family mobile homes (one per

building site);b. Residential care facilities, small licensed.

c. Parks, playgrounds, and athletic fields (noncommercial);

d. Riding and hiking trails.

e. Small family child care homes (See Section 20.60.130: Day Care Facilities

of Children).

2. The following principal uses are permitted subject to the approval of a use permit

by the Planning Director per Chapter 20.91 :

a. Communi'cation transmitting, reception, or relay facilities;b. Public/private utility buildings and structures;

c. . Large family child care homes (see Section 20.60.130 (Day Care Facilities

for Children)).

3. The following principal uses are permitted subject to the approval of a use permit

by the Planning Commission per Chapter 20.91:

a. Fire and police stations;

b. Churches, temples, and other places of worship;c. Any. other use which the Planning Commission finds consistent with the

purpose and intent of this district."

Section 13. Paragraph"B" of Section 20.45.030 (Land Use Regulations) of Chapter 20.45

(Specific Plan District #8 Central Balboa) of Title 20 (Planning and Zoning) ofthe Newport

Beach Municipal Code is hereby amended in its entirety to read as follows:

"Section 20.45.030 Land Use Regulations

B. The following schedule establishes the land uses defined in Chapter 20.05 aspermitted or conditionally permitted in Central Balboa Specific Plan District, andincludes special requirements, if any, applicable to specific uses. The letter "P"designates use classifications permitted in Central Balboa. The letter "L"designates use classifications subject to certain limitations prescribed under the"Additional Use Regulations" which follows. The letters "UP" designate useclassifications permitted on approval of a use permit, as provided in Chapter20.91 or 20.91 A. The letters "PDIU" designate use classifications permitted onapproval of a use permit issued by the Planning Director, as provided in Chapter

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20.91. The letters "P/U" designate use classifications which are permitted when

located on the site of another permitted use, but which require a use permit whenlocated on the site of a conditional use. Letters in parentheses in the "AdditionalRegulations" column refer to "Additional Use Regulations" following theschedule. Where letters in parentheses are opposite a use classification heading,referenced regulations shall apply to all use classifications under the heading.

Central Balboa: Land Use Regulations

P == Permtted

UP == Use permitUP-OFC == Use permt issued by a HearigOffcerPDID == Use permt issued by the PlangDirector'L == Limited (see Additional Land UseReguations)--- == Not Permtted

RSC RP R-2 MFR GEIF OS AdditionalRegulations

RESIDENTIAL(A), (B), (C),

(M, (T), (U,(V)

DAY CAR, LIMED (Q)

-LARGE FAMY CHID HOMES PDID PDID

-SMALL FAMY CHILD CAR HOMES P P

GROUP RESIDENTIAL

MULTI-FAMY RESIDENTIAL L-1 P (R)

P AROLEEIPROBATIONER HOME

RESIDENTIAL CAR F ACILITES, UP-GENERA-LICENSED OFC

RESIDENTIAL CAR FACILITIES, UP-GENERA-UNICENSED OFC

RESIDENTIAL CAR FACILITIES, SMAL L-1 P P PLICENSED

RESIDENTIAL CAR FACILITIES, SMAL UP-UNLICENSED OFC

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I'

I


P = Pennitted

UP = Use pennitUP-OFC = Use pennit issued by a HearingOfficerPDIU = Use permit issued by the PlangDirectorL = Limited (see Additiona Land Use

Regulations)--- = Not Permtted

PUBLIC AND SEMI-PUBLIC (A), (B), (C),

(M), (D), (V)CLUBS AN LODGES L-3 L-3 L-4 (0)

CONVALESCENT FACILITIES UP UP (D)

CULTUR INSTITUIONS L-4 (0)

DAY CAR, GENERA UP (D), (Q)

GOVERNNT OFFICES P L-4

HELIPORTS UP UP UP UP L-4 UP (E)

HOSPITALS L-4

MAAS P UP (F)

PAR AN RECREATION FACILITIES P L-3 L-3 L-3 P

PUBLIC SAFETY FACILITIES UP L-4

RELIGIOUS ASSEMBLY L-4

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Centi-al Balboa: Land Use Regulations

P = Permitted

UP = Use permitUP-OFC = Use permit issued by a HearigOffcerPDIU = Use permit issued by the PlanngDirectorL = Limited (see Additional Land Use


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i

l


P = Pennitted

UP = Use permitUP-OFC = Use pennit issued by a HearingOffcerPDIU = Use pennit issued by the PlanngDirectorL = Limited (see Additional Land Use



-FUL SERVICE, LOW TUROVER UP (G), (H), (I), (0)

-FULL SERVICE, SMALL SCALE PDIU(G), (H), (I), (0)

-TAKE-OUT SERVICE UP (G), (H), (I), (0)

-TAK-OUT SERVICE, LIlTED PDIU (G), (H), (I), (0)

-ACCESSORY P P (G), (H, (I), (0)

-BARS AND COCKTAI LOUNGES UP (G), (H), (I), (0)

FOOD AND BEVERAGE SALES P (0)

FURA AN INRNNT SERVICES .UP

MAINNANCE AN REPAI SERVICES P P (D), (M

MA SALES AND SERVICES

-BOAT RENTAL, AN SALES UP (F), eM

-ENTRTAINNT AN EXCURSION L-lO (F)SERVICES

-MAR SERVICE STATION PDIU (F)

-RET AI MANE SALES P

NURSERIS P

OFFICES, BUSINSS AN PROFESSIONAL L-ll L-ll (D)

PA\VNSHOPS P (G)

11287.0005/1023046.2 38i

I. .

5/13/2015 Item #11A

Central Balboà: Land Use Regulations

P = Pemiitted

UP = Use pennìtUP-OFC= Use permt issued by a HearingOffcerPDIU = Use permit issued by the PlangDirectorL = Limited (see Additional Land Use

Regulations)--- = Not Permitted


PERSONAL IMROVEl'NT SERVICES PDIU UP (D), (G)

PERSONAL SERVICES P P (D), (H)

-DRY CLEANRS P

-DRY CLEANRS (COLLECTION ONLY) P

-FORTUNE TELLING P P (D)

-SELF SERVICE LAUNRIS UP

POSTAL SERVICES P P (D)

PRIING AN DUPLICATING SERVICES P P (D)

RET AI SALES P

SECONDHA APPLIANCES/CLOTHG PDIU (G)

TRAVEL SERVICES P P (D)

VEmCLEIEQUIPMENT SALES ANSERVICES

-AUTOMOBILE RENTALS L-7

-CO:MRCIAL PARG FACILITY PDIU L-8 L-S L-S L-4

VISITOR ACCOMMODATIONS

-BED AN BREAKAST INS PDIU UP UP UP

-HOTELS, MOTELS AN TI-SHAS UP (N)

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P = Permitted

UP = Use permitUP-OFC = Use permit issued by a HearingOffcerPDIU = Use permit issued by the PlangDirectorL = Limited (see Additional Land Use


RSC RP R-2 MFR' GEIF OS AdditionalRegulations

-SRO RESIDENTIAL HOTELS UP UP

ACCESSORY USES(A), (B), (C),

(U)

ACCESSORY STRUCTURS AN USES P/UP PIU PIU PIU PIU (L)

TEMPORARY USES (A), (B), (C),

(U)ANIM SHOWS P P P (K)

CHRSTMAS TREEIPUlKIN SALES L-9 (B)

CIRCUSES AN CARVALS P P P (K)

COMMRCIAL FILMING, LIMTED P P P (K)

FAIRS AN FESTIVALS P P P (K)

PERSONAL PROPERTY SALES P P P (P)

OUTDOOR STORAGE, TENWORAY P (M

REAL ESTA1E OFFICES, TENWORAY L-9 L-9 L-9 L-9

RECREATION & EmERT AINMNT P P P (K)EVENTS

TRE FAIS P P P (K)

11287.0005/1023046.2 40

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Central Balboa Specific Plan: Additional Land Use Regulations

L-1 See Section 20.45.035 (B).

L-2 Permitted as a security guard or caretakers residence.

L-3 Limited to facilities developed as part of a residential development.

L-4 In GEIF and OS districts, approval of a use permit in accordance with the provisions ofChapter 20.91 for the establishment of any new use permitted by this section, or anyexpansion or changes in the operational character(stics of an existing use within thiszoning district, unless said use is owned and or operated by a governmental agency that isexempted from the provisions of this section by constitutional or statutory law, and isacting in its governmental capacity.

L-5 Limited to facilities occupying less then 5,000 square feet; use permit required.

L-6 Permitted with a use permit as part of a park or recreational facility.

L-7 Offces only, no vehicles stored on premises.

L-8 Permitted only when adjacent to a commercial district.



L-11 Permitted, however, services involving the assembly or meetings of seven or more'persons shall be limited to above the first floor, where the first floor is occupied by apermitted use or use permitted with a use permit.




(D) Commercial uses shall be permitted in the SP-8 (RP) District subject to the followingprovisions:

1. Commercial uses are permitted on the ground floor only and on the front 50

percent of the lot.

2. The commercial portion shall be limited to a floor area ratio of 0.25.

3. The total gross floor area for all structures on any site shall not exceed 2.00.

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4. Off-street parking for commercial uses shall be as specified in Section 20.45.050

(F).

(E) See Section 20.60.055: Heliports and Helistops.

(F) See Section 20.60.070: Watedront Development Regulations.

(G) See Section 20.60.085: Uses Requiring City Manager ApprovaL.

(H) See Chapter 20.82: Eating and Drinking Establishments.

(1) In addition to the findings established in Chapter 20.82, the Planning Director orPlanning Commission, as the case may be, shall make the following findings in order toapprove a drive-in, take-out or small-scale eating and drinking establishment:

i. That the operator of the food service use will be responsible for the clean-up of allon-site and off-site trash, garbage and litter generated by the use.

2. That the operator of the food service use has submitted a practical program for

monitoring and implementing the clean-up of site and adjacent areas.

(1) Independent massage establishments not permitted (See Chapter 20.87: MassageEstablishments) .

(K) Special event permit required~ see Chapter 5.10 of the Municipal Code.

(L) See Section 20.60.100: Home Occupations in Residential Districts.

(M). See Section 20.60.105: Outdoor Storage & Display.

(N) See Chapter 20.84: Time Share Developments.

(0) See Chapter 20.89: Alcoholic Beverage Outlets.

(P) See Section 20.60.120: Personal Property Sales in Residential Districts.

(Q) See Section 20.60.130: Day Care Facilities for Children.

(R) Any dwellng unit otherwise permitted by this Code may be used for short term lodgingpurposes as defined in Chapter 5.95 of the Municipal Code subject to the securing of:

1. A Business License pursuant to Chapter 5.04 of the Municipal Code.

2. A Transient Occupancy Registration Certificate pursuant to Section 3.16.060 ofthe Municipal Code.


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(S): No residential use constituting a single housekeeping unit may offer or provide servicesto persons not residing on the site, unless the City has approved a use permit allowingsuch use, or in compliance with Section 20.60.100: Home Occupations in ResidentialDistricts.

(T): Persons with disabilities may request a reasonable accommodation from the provisions of


(U): All uses must obtain business licenses if required by Chapter 5.04 of the MunicipalCode."

Section 14. Chapter 20.62 (Nonconforming Structures and Uses) of Title 20 (Planning and

Zoning) of the Newport Beach Municipal Code is hereby amended in its entirety to read as

follows:

Sections:

20.62.01020.62.02020.62.03020.62.04020.62.05020.62.06020.62.07020.62.08020.62.09020.62.100

20.62.010 Purpose

"CHAPTER 20.62

NONCONFORMG STRUCTURS AN USES

PurposeApplicabilityDetermination of NonconformityNonconforming StructuresNonconforming ParkingLandmark BuildingsRestoration of Damage or DestructionTermination of Nonconforming StatusAbatementRights of Appeal

Nonconforming uses, structures, and parking are inconsistent with a coherent zoning plan andthe established standards and regulations set forth in this Title. This chapter establishes

procedures for the continuance or abatement of existing structures and uses that ~o not conformto the provisions ofthe Zoning Code, especially in residential zoning districts, and which may beadverse to the general welfare. of persons and property and detrimental to' the orderly develop-ment of the City as envisioned by the goals and policies of the General Plan. The purpose of

these provisions is to:

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20.62.020

A. Bring nonconforming uses and structures into conformance with the developmentstandards set forth in the City's Zoning Code.

B. Reduce the occurrence and limit the extent of nonconformance of nonconforminguses and structures, especially in residential zoning districts.

Phase out certain nonconforming uses and structures in accordance with theabatement periods set forth below, without infringing upon the constitutionalrights of property owners.

c.

Applicabilty

Uses, buildings, structures or lots that become nonconforming due to reclassification, ordinancechanges, or annexations may be continued subj ect to the provisions of this Chapter.

20.62.030

B.

. D.

Determination of Nonconformity

A. The Planning Director shall determine the nonconformity of any use, building,structure, or lot.

Any use found to have been lawfully established and maintained, but which doesnot conform with the use regulations or required conditions for the district inwhich it is located by reason of adoption or amendment of this code or by reasonof annexation of territory to the City, shall be deemed to be a nonconforming use.A nonconforming use includes a use that was lawfully established and maintainedbut is conditionally permitted in the district and has not obtained a use permit. Ause shall not be considered to have been "lawfully 'established and maintained"

and is an illegal use if it was established or operated without required permits andlicenses, including but not limited to permits and licenses required by any federal,state, or local government agency.

c. Any structure or building that was lawfully erected, but which does not conformwith the property development regulations prescribed in the regulations for thedistrict in which the structure is located by reason of adoption or amendment ofthis code or by reason of annexation of territory to the City, shall be deemed to bea legal nonconforming structure. A building or structure shall not be considered tohave been "lawfully erected" and is an ilegal structure if it was constructedwithout required permits, including but not limited to permits required by anyfederal, state, or local government agency.

When a use or. structure does not conform with the use regulatìons or requiredconditions for the district in which it is located, the property owner or personasserting that it is a nonconforming use or a nonconforming structure has theburden to provide suffcient documentation to the Planning Director that the useor structure was lawfully established, maintained, and erected and is

nonconforming by reason of adoption or amendment of this code or by reason ofannexation of territory to the City.

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20.62.040

B.

c.

E. A use or structure that was not lawfully established, maintained, or erected iscontrary to the provisions of this code and the City may commence an action orproceedings for the abatement and removal of the use or structure pursuant to theprovisions of Chapter 20.96.

Nonconforming Structures

A. Maintenance and Repairs. Ordinary maintenance and repairs may be made tolegal nonconforming structures. No structural alterations shall be made whichwould prolong the life of the supporting members of a structure, except asprovided in this section.

Interior Alterations. Changes to. interior partitions or other nonstructuralimprovements and repairs may be made to a legal nonconforming structure,provided that the cost of the desired improvement or repair shall not exceed 50percent of the replacement cost of the nonconforming structure, as determined bythe Building Director, over any consecutive 12 month period.

Structural Alterations. Structural elements of a legal nonconforming structuremay be modified or repaired subject to the following provision:

1. Alteration of up to 25 percent of the structural elements within any 12

month period may be permitted by right.


month period may be permitted upon the approval of a modificationpermit.


month period may be permitted upon the approval of a use permit by thePlanning Director, subject to the findings and provisions contained in

Section 20.62.040 (F).

D. Additions. Structures legally nonconforming for reasons other than for parking,open space, floor area, or building bulk, may be enlarged, extended or expandedsubject to the following provisions:

1. An increase of up to 25 percent of the gross floor area within any 12month period may be permitted by right.

2. An increase of up to 50 percent of the gross floor area within any 12month period may be permitted upon the approval of a modificationpermit.

3. An increase of up to 75 percent of the gross floor area within any 12month period may be permitted upon the approval of a use permit by the

11287.0005/1023046.2 455/13/2015 Item #11A

Planning Director, subject to the following findings and provisions

contained in Section 20.62.040 (F).

No addition shall cause an increase in the structure's inconsistency with theregulations of the Zoning Code.

E. Exceptions. The provisions of this section shall not apply to the followingcircumstances:

1. Seismic Retrofits. Alterations to a structure required to comply with the

minimum provisions of Chapter 15.07, "EarthquakeHazard. Reduction, IIand California Government Code Section 8875.

2. Public Health & Safety. Structural elements of a legal nonconforming

structure may be modified or repaired if the Building Director determinesthat such modification or repair is immediately necessary to protect thehealth and safety of the public or occupants of the nonconforming

structure, or adjacent property and the cost does not exceed 50 percent ofthe replacement cost of the legal nonconforming structure, as determinedby the Building Director.

I

ii

...:. Nonconforming Parking. Structures which are nonconforming due to off-street parking and loading requirements shall be subject to the provisionsof Section 20.62.050.

F. Required Findings. A use permit required for the alteration of a nonconforming

structure may be approved only if the following findings are made in addition tothose findings specified in Chapter 20.91.

1. The cost of the improvements to be made is minor in comparison to the

value of the existing nonconforming condition.

2. The cost of correcting the nonconforming condition would exceed the cost

of the other alterations proposed.

3. Retention of the nonconforming condition ls necessary to maintain

reasonable use of the structure.

4. The alteration does not increase the structure's inconsistency with theregulations of the Zoning Code.

20.62.050 Nonconforming Parking

A Residential Uses. Where residential uses are nonconforming only because they donot conform to the off-street parking requirements of this code, the followingalterations are permitted:

l1287.0005/1023046.2 46

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1. Number of Spaces

a. Residential development having less than 2 parking spaces per

dwelling unit:

(1) Repair and maintenance, interior alterations, and structuralalterations, as provided for in Section 20.62.040.A throughC. .

(2) Minor additions to existing buildings, such as theconstruction of bathrooms, closets and hallways, or theexpansion of existing rooms, subject to the floor area limitsof Section 20.62.0.040.D.1 through D.2..

(3) Addition of a new room provided that there is no netincrease in the number of habitable rooms, upon the

approval of a modification permit, subject to the floor arealimits of Section 20.62.0.040.D.1 through D.3.

b. Residential development having at least 2 parking spaces per

dwellng unit may be altered or expanded as provided inSubsection A.1.a, except that:

(1) The approval of a modification permit shall not be required

for the addition of a new room provided that there is no netincrease in the number of habitable rooms.

(2) Additional rooms may be added upon the approval of amodification permit.

2. Size of Parking Spaces.

a. No discretionary approvals shall be required for the alteration orexpansion of buildings which are nonconforming only because

amendments to this code have changed the dimensions of requiredparking spaces subsequent to the original construction of thebuilding, provided that the building and any proposed additionshall conform to current provisions of this code with regard to thenumber of required parking spaces.

I

i¡.

f

I

i¡

b. Where the dimensions of required parking spaces do not meet

provisions of Subsection A.2.a., above, or current standards,

alteration of the structure may be permitted only upon the approvalof a modification permit.

3. Covered and Enclosed Parking.

11287.000511023046.2 475/13/2015 Item #11A

Residential development having less than the required number of enclosed

parking spaces:

a. Repair and maintenance, interior alterations, and structural alterations, asprovided for in Section 20.62.040.A through C.

b. Minor additions to existing buildings, such as the construction of bathrooms,closets and hallways, or the expansion of existing rooms, subject to the floor area limits ofSection 20.62.0.040.D.

c. Addition of a new room provided that there is no net increase in the number of

habitable rooms, upon the approval of a modification permit, subject to the floor area limitsof Section 20.62.0.040..D..

B. Nonresidential Uses. Where nonresidential structures and uses arenonconforming only because they do not provide the number of parking spacesrequired by this code, the following shall be controlling:

1. Continuation or Change. Nonconforming structures and uses innonresidential zoning districts, and in areas where residential uses are notprovided for in Planned Community Districts or Specific Plan Districts,may be continued or changed to a use requiring the same or less on-siteparking, consistent with all other provisions of this code.

I

2. Repair and maintenance, interior alterations, and structural alterations, asprovided for in Section 20.62.040.A through C..

3. Enlargement or Intensification.

a. More Than 10% Increase

The nonconforming structure or use may be enlarged by more than10 percent of its original gross floor area, or onsite uses may beintensified such that code required parking would increase by morethan 10 percent, in any 12 month period, only if all code requiredparking is provided, unless a waiver or reduction of the parking

requirement is authorized by use permit. approved by the PlanningDirector. .

b. Less Than 10% Increase

A nonconforming structure or use may be enlarged by less than 10percent of its original gross floor area or intensified to generate

less than a 10 percent increase in code required parking, upon theprovision of code required parking attributable to the enlargementor intensification.

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20.62.060

4. RemovaL. All nonconforming rights with regard to parking shall be lost forany non-accessory building which is demolished.

Landmark Buildings

A. Purpose. To preserve historic structures, encourage their adaptive reuse, andrevitalize the older commercial areas in which they are located by granting relieffrom restrictions on nonconforming uses and structures in this Chapter whilemaintaining the principal use and minimizing impacts on the surrounding area.

B. Applicability. The following types of buildings are recognized as having

importance to the history and architecture of the City of Newport Beach and arecollectively designated as Landmark Buildings: .

1. Landmark Theaters. The term Landmark Theaters shall mean any

building constructed for usé as a cinema or theater that (a) was constructedon or before December 12, 1950; (b) has a single screen or stage; and (c)was designed to seat more than 300 people.

2. Landmark Structure. The term Landmark Structure shall mean any

building listed on the National Register of Historic Places, constructed

prior to December 12, 1950.

C. Exemptions. The principal use of a Landmark Building may be modified,maintained, altered, increased or intensified by way of a change in operationalcharacteristics without obtaining a use permit required by the provisions ofSection 20.82, subject to compliance with the conditions of Subsection (D) andirrespective of whether the principal use has been inactive for any period of timesince inception. An accessory use may be initiated, or intensified by way of achange in operational characteristics, in a Landmark Building without obtaining ause permit required by Section 20.82 subject to compliance with the conditions ofSubsection (D). Structural alterations m~y be made to a Landmark Buildingwithout obtaining a use permit pursuant to Section 20.62.040(C) subject to

compliance with the conditions of Subsection (D). For purposes of this Sectionthe' term accessory use shall mean any use that is permitted as a matter of right orpursuant to a use permit in the zoning district in which the Landmark Building islocated. For purposes of this Section, the term principal use shall mean, in thecase of a Landmark Theatre, the (i) display of motion pictures; and (ii) any similarentertainment use that occurred on a regular basis within the structure from itsinception to January 1, 2003. In the case of a Landmark Structure, the termprincipal use shall be the use that occupied the greatest amount of floor area as ofJanuary 1,2003.

D. Conditions. The exemptions specified II Subsection C are applicable on thefollowing conditions.

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20.62.070

1. Any new use that is initiated, and any use that is intensified by way of achange in operational characteristics, is accessory and remains subordinateto the then current and ongoing principal use of the Landmark Building.

2. The principal use of the Landmark Building occupies, at all times, no less

than seventy percent (70%) of the of the gross floor area of the LandmarkBuilding.

3. A use permit is issued pursuant to the provisions of Chapter 20.89

(Alcoholic Beverage Outlets) prior to the initiation of any accessory usethat involves the sale or consumption of alcoholic beverages.

4. Any permit required by any other titles (other than Title 20) of theMunicipal Code has been issued prior to the initiation or intensification(by way of a change in operational characteristics) of any accessory use ofthe Landmark Building.

5. Any accessory use in any Landmark Theater is conducted between the

hoursof8:00 a.il and 12:00 a.il

6. The required off-street parking of all uses after any additions,intensification, modification or expansion (including credit for reductionsin off-street parking resulting from the elimination of accessory usesexisting on January 1, 2003) is less than the required off-street parking forthe principal and accessory uses prior to any additions, intensification,modification or expansion.

7. The façade and/or exterior architectural features of the Landmark Buildingare not substantially altered or are restored to original condition and theexterior walls of the Landmark Building remain in substantially the samelocation as they existed on January 1, 2003.

-0)

Restoration of Damage or Destruction.

A. Nonconforming Use. A nonconforming use occupying land, a building, orportion thereof which is otherwise conforming and damaged or destroyed by fire,explosion, earthquake, or other disaster may be reestablished, provided thatrestoration work is commenced within 12 months after the damage or destructionoccurs and is pursued diligently to completion, and provided that an abatementperiod for the use has not been established pursuant to Section 20.62.090.

B. Nonconforming Structure or Parking.

1. Determination of Replacement Value. The replacement value of the

structure shall be determined by the Building Director. However, theBuilding Director shall accept the appraised replacement value of the

structure as determined by an independent, licensed appraiser retained bythe property owner, should the property owner choose to do so. The

11287.0005/1023046.2 505/13/2015 Item #11A

replacement value of the structure shall be II excess of the buildingfoundation at the time of the damage.

2. Up To 90 % Damage or Destruction.

a. General Provisions. A nonconforming structure, which is partially

destroyed by fire, explosion, earthquake, or other disaster, may berepaired or restored as a matter of right if the cost of the repair orrestoration is less than 90 percent of the replacement value of thestructure. The rights conferred by this section are contingent upondiligent application for a building permit after the damage orpartial destruction occurs and diligent pursuit of repairs tocompletion.

b. Special Provisions. Notwithstanding the provisions ofsubparagraph a, where a structure is nonconforming due to an

encroachment into a setback or into the required distance betweenbuildings, and the encroachment is more than 90 percent

destroyed, a modification permit shall be required for replacementor repair of the encroachment.

When a structure is nonconforming due to excessive height, bulk,gross floor area, or lack of open space, and the nonconformingcondition is more than 90 percent destroyed, the nonconformingcondition may be restored only after approval of a use permitapproved by the Planning Director pursuant to Chapter 20.91 withthe following additional findings, subject to the limitations inSubsection D below:

(1) That replacement of the nonconforming condition isnecessary to maintain reasonable use of the structure orindividual condominium unit.

(2) That replacement of the nonconforming condition isnecessary to preserve a substantial property right.

3. Greater Than 90% Destruction. If a nonconforming structure is damaged

or destroyed by fire, explosion, earthquake, or other disaster to an extentof more than 90 percent of its replacement value, then the nonconformitymay be restored only if a use permit is first approved by the PlanningDirector provided application for the use permit is made within 12 monthsafter the damage or destruction occurs and the following findings aremade in addition to those findings required in accordance with Chapter20.91 subject to the limitations in Subsection D below:

a. That replacement of the nonconforming condition is necessary tomaintain reasonable use ofthe property or individual condominiumunit.

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20.62.080

c.

D.

b. That replacement of the nonconforming condition is necessary to

preserve a substantial property right.

4. Removal of Portions of the Structure Not Destroyed or Damaged. If anonconforming structure is damaged or destroyed by fire, explosion,earthquake, or other disaster to an extent of more than 50 percent of itsreplacement value, then a maximum additional 20 percent of the structuremay be removed and replaced if necessary to pursue restoration of thestructure. Any additional portions of the structure may be removed andreplaced, only upon the approval of a use permit by the Planning Directorand subject to the following findings in addition to those findings requiredin accordance with Chapter 20.91.

a. That substantial additional expense would be created by the

necessity of working around the additional portion of the structureto be removed when repairing the damaged or destroyed portion.

b. That replacement of the nonconforming portion of the structurewhich was voluntarily removed is necessary to preserve asubstantial property right; or that the rebuilt portion of the structure

will more nearly conform to the provisions of this code.

Aging and Deterioration. The provisions of this section shall not be construed topermit replacement of nonconforming conditions in structures undergoing

renovation, remodel, or reconstruction, structures damaged by ongoing naturalprocesses such as dry rot or termites or structure which have deteriorated due toage.

Condominium Units. When a use permit is required for replacement or repair ofany condominium units which are damaged or destroyed by fire earthquake,explosion, or other disaster, no reduction in the number of units shall be required.The replacement units shall be permitted to be equivalent in size and location tothe units which were damaged or destroyed.

Termination of Nonconforming Status

A. Unless otherwise provided in this chapter, a nonconforming use must ceaseoperations and cannot be reestablished when one or more of the following eventsoccur:

i. The nonconforming use remains inactive for 180 consecutive days.

2. The nonconforming use is converted to a conforming use.

3. The nonconforming use is enlarged, extended, expanded or in any other

manner changed to increase its inconsistency with the regulations of thiscode.

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. 4. The abatement period expires as set forth in Section 20.62.090.

B. Excèptions

1. A nonconforming use which has been active for 180 days or more may be

reestablished, subject to the approval of the Planning Director uponfinding that:

a. The use is normally permitted, either by right or by the

approval of a use permit, and is nonconforming only byvirtue of the required conditions of the district in which itis located; and

b. The property or structure where the nonconforming use was

located contains a substantial investment in the structuraldesign, equipment, or fixtures that are unique to and

necessary for the operation of the former use; and

c. The property owner has made a good faith effort to

reestablish the use and has maintained the property in amanner to prevent unsafe or unsightly condition during theperiod of inactivity.

2. A nonconforming use that has been inactive for 190 days or more may be

reestablished when located within a Landmark Building, pursuant to therequirements Section 20.62.065.

c. Abatement. Whenever the Planning Director finds that any of the conditions setforth in Subsection A exist, the Planning Director shall issue a written order ofabatement as specified in Section 20.62.090.D of this chapter.

20.62.090 Abatement Periods

A. Time Periods for Abatement in Residential Districts. Nonconforming uses located inResidential Districts or in an area where residential uses are provided for in thePlanned Community Districts or Specific Plan Districts shall be abated andterminated upon the expiration ofthe periods of times set forth below.

1. Nonconforming Use of Land When No Structure Is Involved. Thenonconforming uses of land not involving a structure shall be abated within one year.

2. Nonconforming Use of Land Involving a Structure. In any district, thenonconforming uses of land wherein a structure is involved shall be discontinued withinthe following maximum time limits:

a. A nonconforming use of land involving a structure shall be

discontinued within (i) one year, or (ii) at the expiration of the term of alease on the property, or (iii) at the expiration of any current operating

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license that is required by state law, whichever is earliest. Any such leaseshall be the last lease entered into as to the subj ect land prior to December7,2007.

b. The applicable amortization period for a residential care facilityunder this Section 20.62.090.A.2.a may be extended, upon application tothe Director on a form prescribed by the same, under one or both of thefollowing circumstances:

1. When the owner or occupant has timely applied for a usepermit or reasonable accommodation pursuant to Chapter 20.91A orChapter 20.98 and is diligently pursuing that administrative process, asdetermined by the Director;

11. .When the business owner or occupant is contractuallyobligated to continue the provision of a program or service for one ormore persons so long as any such contract provides for a normal andcustomary term for the provision of those services. No such term shallexceed 60 days.

Application for an extension under this Section 20.62.090.A.2.b is separate andapart from application for an eÀ.1:ension under Section 20.62.090.B. A residentialcare facility may apply for an extension under either or both processes.

Exception: Multi-Family Residential uses and Two-Family Residentialuses located in Residential Districts (Chapter 20.10), and in areas whereresidential uses are provided for in Planned Community Districts or Specific PlanDistricts, which are nonconforming only in terms. of their density or parking ortheir use as Multi-Family Residential or Two-Family Residential shall not besubject to abatement.

c. In nonresidential districts, and in areas where residential uses are

not provided for in Planned Community Districts or Specific PlanDistricts, the nonconforming use of land wherein a structure is involvedshall be discontinued within ten years after the Planning Commissioncompletes proceedings for the abatement of the use pursuant to Section20.62.090.D.

d. Notwithstanding the above, any maximum abatement periods

specified in Planned Community Districts or Specific Plan Districts shallbe as shown in the specific plan or development plan.

Exception: No abateme:p period wil be set for the use of a LandmarkBuilding (see Section 20.62.060), which may be changed, expanded, increased orintensified and structural alterations may be made subject to compliance with theprovisions of Section 20.62.060.

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B. Extension of Abatement Period for Nonconforming Uses.

1. Purpose. A property owner may request an extension of the abatement

period to amortize the property owner's investment to avoid an

unconstitutional taking of property. The City wil evaluate evidence ofeconomic hardship arising from abatement, the nonconformity's impact onthe community, and other factors that may affect the length of theabatement period required to avoid an unconstitutional taking.

2. Application Requirements. Except as otherwise provided herein, the

owner of property subject to an abatement period, or his authorized agent,may file an application for extension of the abatement period pursuant tothis Subsection 20.62.090.B. no later than 90 days prior to the expirationof the abatement period set forth in this chapter. The application shall befied in a manner consistent with the requirements contained in Chapter

20.90, and shall include the following additional information:

a. The length of the requested extension of the abatement period.

b. Evidence in support of the findings included in Section

20.62.090.B.4 below.

3. Notice and Hearing; Hearing Offcer Action. A Hearing Offcer, as

defined in Section 20.03.030, hereby is designated to 1 review theapplication for an extension at a public hearing. Notice of the hearingshall be as specified in Chapter 20.91. Notice shall be provided to allowners and occupants of property within 300 feet of the propèrty, as

. specified in Section 20.91.030.C. 'The Hearing Offcer, by resolution,shall approve, conditionally approve, or deny the request for an extensionto the abatement period. The resolution shall include findings of factpertinent to the criteria set forth in Section 20.62.090,A.2.b. or hasrequired by Section 20.62.090.B.

4. Findings. In reviewing an application for an extension to the abatement

period, the Hearing Officer shall grant an extension only as required toavoid an unconstitutional taking of property. The Planning Commissionshall consider:

a. The length of the abatement period in relation to the owner'sinvestment in the use;

b. The length of time the use was operating prior to the date of

nonconformity;

c. The suitability of the structure for an alternative use;

d. Harm to the public if the use remains beyond the abatement period;

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e. The cost and feasibility of relocating the use to another site; and

f. Other evidence relevant to the determination of whether an

extension of the abatement period is required to avoid an unconstitutionaltaking of property.

5. Notice to Owner. The Planning Director shall formally notify the owner

of nonconforming property of the action of the Commission by mailingthe owner a copy of the resolution not later than 10 days following thedate of its adoption by the Planning Commission.

C. Establishment of Abatement Period in Nonresidential Districts.

1. Planning Commission . Action. Where the Planning Commission

determines that the orderly termination of a nonconforming use in anonresidential district, or in areas where residential uses are not providedfor in Planned Community Districts or Specific Plan Districts, is necessaryto promote the health, safety, and general welfare and to comply with theprovisions of the Zoning Code and goals and policies of the General Plan,shall establish a ten-year abatement period pursuant to Subsection A.2.

2. Notice and Hearing. Notice and hearing shall be provided as specified in

Subsection B above.

D. Order of Abatement.

1. Order of Abatement. Whenever the Planning Director finds that any ofthe conditions set forth in Section 20.62.080.A exist, the Director shallimmediately issue a written order of abatement and shall give notice tothe property owners and all persons in possession of the property. Unlessthe nonconformity has been previously abated, the owner and/or person inpossession shall comply within the time and in the manner stated in theorder.

2. Enforcement. The City shall be authorized to enforce the provisions ofthis Chapter by civil action, utilization of the procedures in Chapter 20.96,or any other proceeding or method permitted by law or equity.

20.62.100 Rights of Appeal

A. Appeals. Decisions of the Planning Director may be appealed to the PlanningCommission and decisions of the Planning Commission and Hearing Officer maybe appealed to the City CounciL.

I,I.B. Procedures. Procedures for appeals shall be as prescribed by Chapter 20.95:

Appeals, provided that, notwithstanding Section 20.95.060, the standard of reviewof a Hearing Officer decision shall not be de novo and the City Council shalldetermine whether the findings made by the Hearing Officer are supported by

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substantial evidence presented during the evidentiary hearing. The City Council,acting as the appellate body, may sustain, reverse, or modify the decision of theHearing Officer or remand the matter for further consideration, which remandshall include specific issues to be considered or a direction for a de novo hearing."

Section 15. Paragraph "C" of Section 20.90.030 (Application Filing) of Chapter 20.90

(Zoning Administration) of Title 20(Planning and Zoning) is hereby amended to read as follows:

"c. Required Signatures. The owner, lessee, or agent of the owner of the property affected mayapply for discretionary approvals. The application shall be signed by the owner of record ormay be signed by the lessee or by an authorized agent if written authorization from the owner ofrecord is fied concurrently with the application. The applicant shall make a statement in writing

that he or she certifies under penalty of perjury that all the information contained in the

application is true and correct. False statements therein wil constitute grounds for denial orrevocation as applicable."

Section 16. . Chapter 20.91 (Use Permits and Variances) of the Newport Beach Municipal Code

is hereby amended in its entirety to read as follows:

Sections:

20.91.01020.91.01520.91.02020.91.02520.91.03020.91.03520.91.04020.91.04520.91.05020.91.05520.91.060

11287.0005/1023046.2

"Chapter 20.91

USE PERMS AN VARCES

PurposeUse Permit or Variance Requisite to Other PermitsApplication for Use Permit or VarianceDuties of the Planning Director and the Planning CommissionNotice and Public HearingRequired FindingsConditions of ApprovalEffective DateExpiration, Time Extension, Violation, Discontinuance, and RevocationAmendments and New ApplicationsRights of Appeal

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20.91.010 Purpose

This article provides the flexibility in application of land use and development regulationsnecessary to achieve the purposes of this code by establishing procedures for approval,conditional approval, or disapproval of use permit and variance applications.

Use permits are required for use classifications typically having unusual site developmentfeatures or operating characteristics requiring special consideration so that they may. be designed,located, and operated compatibly with uses on adjoining properties and in the surrounding area.

Variances are intended to resolve practical difficulties or unnecessary physical hardships thatmay result from the size, shape, or dimensions of a site or the location of existing structuresthereon; from geographic, topographic, or other physical conditions on the site or in the

immediate vicinity; or from street locations or traffic conditions in the immediate vicinity of thesite. Variances may be granted with respect to property development regulations and

pedormance standards, but do not extend to land use regulations.

20.91.015 Use Permit or Variance Requisite to Other Permits

No building permit or certificate of occupancy shall be issued in any case where a use permit orvariance is required by the terms of this code unless and until such use permit or variance hasbeen granted by the Planning Director or the Planning Commission or by the affirmative vote ofthe City Council on appeal or review and then only in accordance with the terms and conditionsof the use permit or variance granted.

20.91.020 Application for Use Permit or Variance

An application for a use permit or varíance shall be fied in a manner consistent with the

requirements contained in Chapter 20.90, Application Filing and Fees. If the application is for ause permit in a Residential District (Chapter 20.10) or in an area where residential uses areprovided for in Planned Community Districts or Specific Plan Districts, the application shall beaccompanied by the additional information specified in Chapter 20.91A.

20.91.025 Duties of the Planning Director and the Planning Commission

A. Authority. The Planning Commission shall approve, conditionally

approve, or disapprove applications for use permits or variances, unless theauthority for an administrative decision on a use permit is specifically assigned tothe Planning Director in the individual chapters of this code.

Exception. The City Council shall have final decision-making authorityon the applications for use permits and variances filed concurrently withamendments to the general plan, zoning code, or a planned communitydevelopment plan or with a development agreement.

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20.91.030

B.

B. Rendering of Decision. Aferthe conclusion of the hearing on any application fora use permit or variance, the Planning Commission shall render a decision withinthirty-five (35) days. Where the authority for an administrative decision on a usepermit is assigned to the Planning Director, the Planning Director shall render adecision within fourteen (14) days of the acceptance of a completed application.

C. Report to the Planning Commission and City CounciL. The Planning Directorshall report the discussion of the Planning CommissioIl ona use permit orvariance to the City Council at the next regular meeting or within 5 days of thedecision, whichever occurs first. Upon rendering a decision on a use permit, thePlanning Director shall report to the Planning Commission and the City Councilat the next regular meeting or within 5 days of the decision, whichever occursfirst.

D. Notice of Decision. Upon the rendering of a decision on a use permit by thePlanning Director, a notice of the decision shall be mailed to the applicant and allowners and occupants of property within 300 feet of the boundaries of the site.

N otICe and Public Hearing

A. Public Hearings. The Planning Commission shall hold a public hearing on anapplication for a use permit or variance. Public hearings are not required forapplications where the authority for an administrative decision on a use permit isassigned to the Planning Director.

Timing of Hearings. A public hearing shall be held on all use permit and varianceapplications, except as otherwise provided in this chapter, within sixty (60) daysafter the acceptance of a completed application.

c. Required Nötice. Notice of a public hearing or an administrative decision shall begiven as follows:

1. Mailed or Delivered Notice.

a. Residential Districts. At least 10 business days prior to the hearing

or an administrative decision, notice shall be mailed to theapplicant and all owners and occupants of property within 300 feetof the boundaries of the site, as shown on the last equalized

assessment roll or, alternatively, from such other records as containmore recent addresses.

b. Nonresidential Districts. At least 10 business days prior to the

hearing or an administrative decision, notice shall be mailed to theapplicant and all owners of property within 300 feet, excludingintervening rights-of-way and waterways, of the boundaries of thesite, as shown on the last equalized assessment roll or,

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alternatively, from such other records as contain more recent

addresses.

c. Notice To Occupants. Notice to occupants shall be accomplished

by mailing notice to each property address within 300 feet of theboundaries ofthe site with notice addressed to "occupant." It shallbe the responsibility of the applicant to obtain and provide to theCity the names and addresses of owners and property addresseswithin 300 feet of the boundaries of the site as required by thissection.

2. Posted Notice. Notice shall be posted in not less than 2 conspicuous

places on or close to the property at least 10 business days prior to thehearing or the administrative decision.

3. Published Notice. Notice shall be published in at least one newspaper of

general circulation within the City, at least 10 business days prior to thehearing.

D. Contents of Notice. The notice of public hearing or of the decision of thePlanning Director shall contain:

1. A description of the location of the project site and the purpose of theapplication;

2. A statement of the time, place, andpurpose ofthe public hearing or of thepurpose of the administrative decision;

3. A reference to application materials on file for detailed information; and

4. Astatement that any interested person or authorized agent may appear andbe heard at the public hearing or their rights of appeal in case ofadministrative decisions.

E. Continuance. Upon the date set for a public hearing before the PlanningCommission, the Planning Commission may continue the hearing to another datewithout giving further notice thereof if the date of the continued hearing is

announced in open meeting.

20.91.035 Required Findings

The Planning Commission or the Planning Director, as the case may be, shall approve orconditionally approve an application for a use permit or variance if, on the basis of the

application, plans, materials, and testimony submitted, the Planning Commission or the PlanningDirector finds:

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A. For Use Permits.

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.

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 theGeneral 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 theneighborhood of such use; and will not be detrimental to the properties orimprovements in the vicinity or to the general welfare of the city.

3. That the proposed use wil comply with the provisions of this code,

including any specific condition required for the proposed use in thedistrict in which it would be located.

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4. If the use is proposed within a Residential District (Chapter 20.10) or in anarea where residential uses are provided for in Planned CommunityDistricts or Specific Plan Districts, the use is consistent with the purposesspecified in Chapter 20.91A and conforms to all requirements of thatChapter.

B. For Variances.

1. That because of special circumstances applicable to the property,including size, shape, topography, location or surroundings, the strictapplication of this code deprives such property of privileges enjoyed byother property in the vicinity and under identical zoning classification.

2. That the granting of the application is necessary for the preservation andenjoyment of substantial property rights of the applicant.

That the granting of the application is consistent with the purposes of thiscode and will not constitute a grant of special privilege inconsistent withthe limitations on other properties in the vicinity and in the same zoningdistrict.

3.

4. That the granting of such application wil not, under the circumstances of

the particular case, materially affect adversely the health or safety ofpersons residing or working in the neighborhood of the property of theapplicant and will not under the circumstances of the particular case bematerially detrimental to the public welfare or injurious to property or

improvements in the neighborhood.

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20.91.040 Conditions of Approval

The Planning Commission or the Planning Director, as the case may be, may impose .suchconditions in connection with the granting of a use permit or variance as they deem necessary tosecure the purposes of this code and may require guarantees and evidence that such conditionsare being or will be complied with, including but not limited to management and operationsplans. Such conditions may include, but are not limited to, requirements for off-street parkingfacilities and prohibitions against assembly uses as determined in each case.

20.91.045 Effective Date

Use permits and variances shall not become effective for fourteen (14) days after being granted,and in the event an appeal is fied or if the Planning Commission or the City Council shallexercise its right to review any such decision under the provisions of Chapter 20.95, the permitshall not become effective unless and until a decision granting the use permit, or variance ismade by the Planning Commission or the City CounciL.

20.91.050 Expiration, Time Extension, Violation, Discontinuance, and Revocation

A. Expiration. Any use permit or variance granted in accordance with the terms ofthis code shall expire within twenty-four (24) months from the effective date ofapproval or at an alternative time specified as a condition of approval unless:

1. A grading permit has been issued and grading has been substantially

completed; or

2. A building permit has been issued and construction has commenced; or

3. A certificate of occupancy has been issued; or

4. The use is established; or

5. A time e:i'tension has been granted.

In cases where a coastal permit is required, the time period shall not begin untilthe effective date of approval of the coastal permit.

B. Time Extension. The Planning Director may grant a time extension for a usepermit or variance for a period or periods not to exceed three years. An

application for a time extension shall be made in writing to the Planning Directorno less than thirty (30) days or more than ninety (90) days prior to the expirationdate.

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C. Violation of Terms. Any use permit or variance granted in accordance with the

terms of this code may be revoked if any of the conditions or terms of such usepermit, or variance are violated, or if any law or ordinance is violated in

connection therewith.

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20.91.055

B.

20.91.060

A

B.

D. Discontinuance. A use permit or variance shall lapse if the exercise of rightsgranted by it is discontinued for one hundred eighty (180) consecutive days.

E. Revocation. Except as otherwise provided for in this Title, procedures forrevocation shall be as prescribed by Chapter 20.96: Enforcement.

Amendments and New Applications

A Amendments. A request for changes in conditions of approval of a use permit orvariance or a change to plans that would affect a condition of approval shall betreated as a new application. The Planning Director may waive the requirementfor a new application if the changes are minor, do not involve substantialalterations or additions to the plan or the conditions of approval, and areconsistent with the intent of the original approval.

New Applications. If an application for a use permit or variance is disapproved,no new application for the same, or substantially the same, use permit or varianceshall be filed within one year ofthe date of denial of the initial application unlessthe denial is made without prejudice.

Rights of Appeal

Appeals. Decisions of the Planning Director may be appealed to the Planning

Commission and decisions of the Planning Commission may be appealed to theCity CounciL.

Procedures. Except as otherwise provided for in this Title, procedures for appealsshall be as prescribed by Chapter 20.95: Appeals."

Section 17. A new Chapter 20.91A entitled "Use Permits in Residential Districts" is hereby

added to the Newport Beach Municipal Code to read as follows:

Sections:

"CHATER 20.91A

USE PERlS IN RESIDENTIA DISTRCTS

20.91AOlO20.91A02020.91A03020.91A04020.91A050

PurposeUse Limits to Continue Nonconforming UseApplication ContentsDevelopment and Operational RegulationsRequired Findings .

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20.91A.OIO Purpose.

The purpose of this Chapter is as follows:

A. To promote the public health, safety, and welfare and to implement the goals andpolicies of the Newport Beach General Plan by ensuring that conditional uses inresidential neighborhoods do not change the character of such neighborhoods asprimarily residential communities.

B. To protect and implement the recovery and residential integration of the disabled,including those receiving treatment and counseling in connection with

dependency recovery. In doing so, the City seeks to avoid the overconcentrationof residential care facilities so that such facilities are reasonably dispersedthroughout the community and are not congregated or overconcentrated in anyparticular area so as to institutionalize that area.

20.91A.020 Use Permits To Continue Nonconforming Use

Any person whose use of property in a residential district has been rendered nonconforming bypassage of the Ordinance adding this Chapter 20.91A may seek the issuance of a conditional usepermit to continue the use so long as the application for that permit is completed and fied withinninety (90) days following the effective date of that Ordinance. If any such person fails to fiesuch an application for a conditional use permit within said ninety (90) day period, such a permitto continue the use may not be sought or issued.

20.91A.030 Application Contents

In addition to the application requirements contained in Chapter 20.90, an application for a usepermit in a Residential District (Chapter 20.10), or in an area where residential uses are providedfor in Planned Community Districts or Specific Plan Districts, shall contain the followinginformation:

A. Facility Users. Number and types of users of the facility (including staff, clients,visitors, students, etc.,' as appropriate).

B. Characteristics of Proposed Use. Hours of operation, types of activities, and

typical attendance at activities.

C. Transportation and Parking. Expected parking demand and vehicular use;

availability of public transportation or other means to transport facility users; if applicable, routesutilized to transport facility users off-site.

D. Location Map. A location map showing all conditional uses within three blocks,including property addresses and a site plan showing uses and structures on adjacent parcels.

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E. Similar Uses. A list of other uses of the same type located in the City and the

authorized capacity of such use, if any, as determined by a third party entity. The applicant shallprovide evidence of the need for such use by the residents of the City based on published

sources. The city may complete an independent review of this data, at the applicant's expense,to determine whether there is a need for such use by its residents.

F. Applicant Information. The name and address of the applicant, including thename and address of the lessee, if the property is to be leased and is someone other than theapplicant; and the name and address of the owner of the property for which a use permit isrequested. If the applicant and/or lessee or owner is a partnership, corporation, firm orassociation, then the applicant/lessee shall provide the additional names and addresses as followsand such persons shall also sign the application: (i) every general partner of the partnership; (ii)every owner with a controlling interest in the corporation; or (iii) the person designated by theofficers of a corporation as set forth in a resolution of the corporation that is be designated as thepermit holder for the use permit.

G. License and Permit History. 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 orsuspended, and the reason therefore.

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I~H. Similar Facilities. A list of addresses of all facilities similar to that for which a

use permit is requested in the State of California owned or operated by the applicant(s) within thepast five (5) years and whether such facilities have been found by state or local authorities to beoperating in violation of state or local law.

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1. Operations and Management Plan. An operations and management plan to ensure

compliance with state and local law. If the use permit is for a residential facility or a commercialfacilìty that accommodates overnight stays, the operations and management plan shall alsoindicate the number of persons per bedroom, maximum number of occupants, typical length ofstay, any guest or client rules of conduct and procedures for the disposal, if any, of medicalwaste.

20.91A.040. Approval, Modification or Revocation of Use Permit

A Hearing Offcer, as defined in Section 20.03.030, is hereby designated to approve,

conditionally approve or disapprove applications for use permits, and the modification orrevocation thereof, in accordance with the procedures set forth in Chapter 20.91. Decisions ofthe Hearing Officer may be appealed to the City CounciL. Notwithstanding Section 20.95.060,

the standard of review shall not be de novo and the City Council shall determine whether thefindings made by the Hearing Offcer are supported by substantial evidence presented during theevidentiary hearing. The City Council acting as the appellate body may sustain, reverse ormodify the decision of the Hearing Officer or remand the matter for further consideration, whichremand shall include either specific issues to be considered or a direction for a de novo hearing.

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20.91A.050 Development and Operational Standards

The following standards are applicable to uses granted a use permit under this Chapter.

A. No staff, clients, guests, or any other users of the facility may smoke in an area fromwhich the second hand smoke may be detected on any parcel other than the parcel upon whichthe facility is located.

B. Management and Operation. The property shall be operated in compliance withapplicable state and local law and in conformance with the management and operating plan andrules of conduct submitted as part of the application for a use permit or as set forth in theconditions of approval for a use permif Each such plan shall provide a phone number by whichthe operator may be contacted at all times. If applicable, the permittee shall comply with thebusiness license provisions of Title 5 of this Code.

C. In order to ensure that unlicensed residential care facilities (small or general) are

operating in a manner that is consistent with state and federal law and established industrystandards and to ensure that operators do not have a pattern or practice of operating similarfacilities in violation of state or local law, the standards listed below shall apply:

i. If the facility is not be required to be licensed by the State of California, owners,

managers, operators, and residents shall not provide any services onsite, which would requirelicensure of the facility under California law. i

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2. There shall be no more than two residents per bedroom plus one additional

resident. Notwithstanding, upon request by the applicant for additional occupancy, the hearingoffcer has discretion to set occupancy limits based upon the evidence provided by the applicantthat additional occupancy is appropriate at the site. In determining whether to set a differentoccupancy limit, the Hearing Offcer shall consider the characteristics of the structure, whetherthere will be an impact on traffic and parking and whether the public health, safety, peace,comfort, or welfare of persons residing in the facility or adjacent to the facility will be impacted.

3. If certification specific to the type of facility is available from a governmental

agency or qualified nonprofit organization, the facility shall receive such certification including,without limitation, certification by Orange County under its Adult Alcohol and Drug SoberLiving Facilities Certification Program.

4. The names of all persons and entities with an ownership or leasehold interest inthe facility, or who will participate in operation of the facility, shall be disclosed in writing to theCity, and such persons and entities shall not have a demonstrated pattern or practice of operatingsimilar facilities in or out of the City of Newport Beach in violation of state or local law.

5. The operator of the residential facility shall provide a list of the addresses of allsimilar facilities in the State of California owned or operated by the operator within the past five(5) years and shall certify under penalty of perjury that none of such facilities have been foundby state or local authòrities to be operating in violation of state or local law. The PlanningDirector shall verify such information.

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20.91A.060 Findings

In addition to the findings required by Section 20.91.035, the Hearing Officer shall make thefollowing findings before approving or conditionally approving an application for a use permit ina Residential District (Chapter 29..10) or in an area where residential uses are provided for inPlanned Community Distr.icts or Specific Plan Districts:

A. The use conforms to all applicable provisions of Section 20.91A.050.

B. The project includes suffcient on..site parking for the use, and traffic andtransportation impacts have been mitigated to a level of insignificance.

C.The property and existing structures are physically suited to accommodate theuse.

D. The use wil be compatible with the character of the surrounding neighborhood,

and the addition or continued maintenance of the use wil not contribute tochanging the residential character of the neighborhood, such as creating anoverconcentration of residential care uses in the vicinity of the proposed use. . Inmaking this finding or sustaining such a finding, the Hearing Officer and/or CityCouncil shall consider, as appropriate, the following factors:

1. The proximity of the use location. to schools, parks, other residential carefacilities, outlets for alcoholic beverages and any other uses which couldbe 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, limitedavailable parking, short blocks, and other substandard characteristicswhich are pervasive in certain areas of the City of Newport Beach,

including portions of West Newport, Lido Isle, Balboa Peninsula, BalboaIsland, Corona DelMar and Newport Heights, which portions weredepicted 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.l and

D.2, it would be appropriate to apply the American Planning Associationstandard of permitting one or two such uses per block. Median blocklengths in different areas of Newport Beach widely range from 300 feet inthe Nonstandard Subdivision Areas to as much as 1,422 feet in standardsubdivision areas. The average calculable block length in much of thestandard subdivision areas is 711 feet and the calculable median blocklength is 617 feet. The Hearing Offcer shall apply the American PlanningAssociation standard in all areas of Newport Beach in a manner whicheliminates the differences in block lengths. In making this determination,the hearing officer shall be guided by average or median block lengths instandard subdivisions of the City. The Hearing Officer shall retain the

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discretion to apply any degree of separation of uses, which he or shedeems appropriate in any given case. A copy of the American PlanningAssociation standard is on file with the Director of Planning.

E. The operation of buses and vans to transport residents to and from off-site activitiesdoes not generate vehicular traffic substantially greater than that normally generatedby residential activities in the surrounding area.

F. Arrangements for delivery of goods are made within the hours that are compatiblewith and wil not adversely affect the peace and' quiet of neighboring properties.

G. Arrangements for commercial trash collection in excess of usual residential collectionare made within hours that are compatible with and wil not adversely affect the peaceand quiet of neighboring properties.

In approving or conditionally approving an application for a use permit, the Hearing Offcer mayimpose conditions which are suitable to assure compatibility of the proposed use with all otheruses in the vicinity."

Section 18. Paragraph "E" of Section 20.96.040 (Revocation of Discretionary Permits) of

Chapter 20.96 (Enforcement) of Title 20 (Planning and Zoning) is hereby amended to read as

follows:

"E. Required Findings. The person or body conducting the hearing shall revoke the permit uponmaking one or more of the following findings :

1. That the permit was issued on the basis of erroneous or misleading information or

misrepresentation;

2. That the applicant has made a false or misleading statement of a material fact, or an

omission of a material fact in the application for the permit.

3. That the terms of conditions of approval of the permit have been violated or that other

laws or regulations have been violated;

4. That there has been a discontinuance of the exercise or the entitlement granted by the

permit for one hundred eighty (180) consecutive days."

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Section 19. A new Chapter 20.98 entitled "Reasonable Accommodation" is hereby added to the

Newport Beach Municipal Code to read as follows:

"Chapter 20.98

Reasonable Accommodation

Sections:

20.98.01020.98.01520.98.02020.98.02520.98.03020.98.035

Purpose.Review Authority.Application for a Reasonable Accommodation.Decision.Expiration, Time Extension, Violation, Discontinuance, and Revocation.Amendments.

20.98.010 Purpose I

20.98.015 Review Authority

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In accordance with federal and state fair housing laws, it is the purpose of this Chapter to providereasonable accommodations in the City's zoning and land use regulations, policies, and practiceswhen needed to provide an individual with a disability an equal opportunity to use and enjoy adwelling.

The Hearing Offcer, as defined in Section 20.03.030, is hereby designated to approve,

conditionally approve, or deny all applications for a reasonable accommodation. If the projectfor which the request for reasonable accommodation is made requires another discretionarypermit or approval, then an applicant may request that the Hearing Offcer hear the request for areasonable accommodation at the same time as the other discretionary permit or approval. If theapplicant does not request a simultaneous hearing, then the request for a reasonable

accommodation. shall not be heard until after a final administrative decision has been maderegarding the other discretionary permit or approval.

."

20.98.020 Application for Reasonable Accommodation

A. Applicant. A request for reasonable accommodation may be made by any person with a

disability, their representative, or a developer or provider of housing for individuals with adisability. A reasonable accommodation may be approved only for the benefit of one or moreindividuals with a disability.

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B. Application. An application for a reasonable accommodation from a zoning regulation,

policy, or practice shall be made on a form provided by the Planning Department. No fee shallbe required for a request for reasonable accommodation, but if the project requires anotherdiscretionary permit, then the prescribed fee shall be paid for all other discretionary permits.

C. Other Discretionary Permits. If the project for which the request for reasonableaccommodation is made requires another discretionary permit or approval, then the applicantmay file the request for reasonable accommodation together with the application for the otherdiscretionary permit or approval. The processing procedures of the discretionary permit shallgovern the joint processing of both the reasonable accommodation and the discretionary permit.

D. Required Submittals. In addition to materials required under other applicable provisionsof this Code, an application for reasonable accommodation shall include the following:

20.98.025

1. Documentation that the applicant is: (i) an individual with a disability; (ii)applying on behalf of one or more individuals with a disability; or (iii) adeveloper or provider of housing for one or more individuals with a disability.

2. The specific exception or modification to the Zoning Code provision, policy, orpractices requested by the applicant.

3. Documentation that the specific exception or modification requested by theapplicant is necessary to provide one or more individuals with a disability anequal opportunity to use and enjoy the residence.

4. Any other information that the Planning Director reasonably concludes isnecessary to . determine whether the findings required by Section 20.98.025.B canbe made, so long as any request for information regarding the disability of theindividuals benefited complies with Fair Housing -Law protections and theprivacy rights of the individuals affected.

Decision-.

A. Hearing Offcer Action. The Hearing Offcer shall issue a written determination toapprove, conditionally approve, or deny a request for reasonable accommodation, and themodification or revocation' thereof in compliance with Section 20.98.025.B Thereasonable accommodation request shall be heard with, and subject to, the notice, review,approval, and appeal procedures prescribed for any other discretionary permit providedthat, notwithstanding Section 20.95.060, the standard of review on appeal shall not be denovo and the City Council shall determine whether the findings made by the HearingOffcer are supported by substantial evidence presented during the evidentiary hearing.The City Council, acting as the appellate body, may sustain, reverse or modify thedecision of the Hearing Officer or remand the matter for further consideration, whichremand shall include specific issues to be considered or a direction for a de novo hearing.

B. Findings. The written decision to approve, conditionally approve, or deny a request forreasonable accommodation shall be based on the following findings, all of which arerequired for approval:

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1. The requested accommodation is requested by or on the behalf of one or more

individuals with a disability protected under the Fair Housing Laws.

2. The requested accommodation is necessary to provide one or more individuals

with a disability an equal opportunity to use and enjoy a dwelling.

3. The requested accommodation wil not impose an undue financial oradministrative burden on the City as "undue financial or administrative burden" isdefined in Fair Housing Laws and interpretive case law.

4. The requested accommodation will not result in a fundamental alteration in thenature of the City's zoning program, as "fundamental alteration" is defined in FairHousing Laws and interpretive case law.

5. The requested accommodation wil not, under the specific facts of the case, resultin a direct threat to the health or safety of other individuals or substantial physicaldamage to the property of others.

In making these findings, the decision-maker may approve alternative reasonableaccommodations which provide an equivalent level of benefit to the applicant.

C. The City may consider, but is not limited to, the following factors in determining whetherthe requested accommodation is necessary to provide one or more individuals with adisability an equal opportunity to use and enjoy a dwelling.

'1. Whether the requested accommodation wil affirmatively enhance the quality of

life of one or more individuals with a disability.

2. Whether the individual or individuals with a disability wil be denied an equalopportunity to enjoy the housing type of their chòice absent the accommodation.

3. In the case of a residential care facility, whether the requested accommodation is

necessary to make facilities of a similar nature or operation economically viablein light of the particularities of the relevant market and market participants.

4. In the case of a residential care facility, whether the existing supply of facilities ofa similar nature and operation in the community is suffcient to provide

individuals with a disability an equal opportunity to live in a residential setting.

D. The City may consider, but is not limited to, the following factors in determining whetherthe requested accommodation would require a fundamental alteration in the nature of theCity's zoning program.

1. Whether the requested accommodation would fundamentally alter the character of

the neighborhood.

2. Whether the accommodation would result in a substantial increase in traffic orinsufficient parking.

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3. Whether granting the requested accommodation would substantially undermine

any express purpose of either the City's General Plan or an applicable SpecificPlan.

4. In the case of a residential care facility, whether the requested accommodation

would create an institutionalized environment due to the number of and distancebetween facilities that are similar in nature or operation.

E. Coastal Zone Properties. For housing located in the Coastal Zone, a request for

reasonable accommodation under this section may be approved by the City if it isconsistent with the requisite findings set forth in 20.98.025.B, with Chapter 3 of theCalifornia Coastal Act of .1976, and with the Interpretative Guidelines for CoastalPlanning and Permits as established by the California Coastal Commission dated

February 11, i 977, and any subsequent amendments, and the Local Coastal Program.

F. Rules While Decision is Pending. While a request for reasonable accommodation is

pending, all laws and regulations otherwise applicable to the property that is the subjectof the request shall remain in full force and effect.

G. Effective Date. No reasonable accommodation shall become effective until the decisionto grant such accommodation shall have become final by reason of the expiration of timeto make an appeaL. In the event an appeal is fied, the reasonable accommodation shallnot become effective unless and until a decision is made by the City Council on suchappeal, under the provisions of Chapter 20.95.

20.98.030 Expiration, Time Extension, Violation, Discontinuance, and Revocation

A. Expiration. Any reasonable accommodation approved in accordance with the terms of

this Chapter shall expire within twenty-four (24) ,months from the effective date ofapproval or at an alternative time specified as a condition of approval unless:

1. A building permit has been issued and construction has commenced;

2. A certificate of occupancy has been issued;

3. The use is established; or

4. A time extension has been granted.

In cases where a coastal permit is required, the time period shall not begin until theeffective date of approval of the coastal permit.

B. Time Extension. The Hearing Officer may approve a time extension for a reasonableaccommodation for good cause for a period or periods not to exceed three years. Anapplication for a time extension shall be made in writing to the Planning Director no lessthan thirty (30) days or more than ninety (90) days prior to the expiration date.

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C. Notice. Notice of the Hearing Officer's decision on a time extension shall be provided asspecified in Section 20.91.030.C. All written decisions shall give notice of the right toappeal and to request reasonable accommodation in the appeals process as set forth inParagraph D below.

D. Appeal of Determination. A time extension for a reasonable accommodation shall befinal unless appealed to the City Council within 14 calendar days of the date of mailing ofthe determination. An appeal shall be made in writing and shall be noticed and heardpursuant to the procedures established in Chapter 20.95 of this Code, as modified bySection 20.98.025.A.

E. Violation of Terms. Any reasonable accommodation approved in accordance with the

terms of this code may be revoked if any of the conditions or terms of such reasonableaccommodation are violated, or if any law or ordinance is violated in connectiontherewith.

F. Discontinuance..A reasonable accommodation shall lapse if the exercise of rightsgranted by it is discontinued for one hundred eighty (180) consecutive days. If thepersons initially occupying a residence vacate, the reasonable accommodation shallremain in effect only if the Planning Director determines that (1) the modification is

physically integrated into the residential structure and cannot easily be removed or alteredto comply with the Code, and (2) the accommodation is necessary to give anotherdisabled individual an equal opportunìty to enjoy the dwelling. The Planning Directormay request the applicant or his or her successor-in-interest to the property to providedocumentation that subsequent occupants are persons with disabilities. Failure to providesuch documentation within ten (10) days of the date of a request by the City shall

constitute grounds for discontinuance by the City of a previously approved reasonableaccommodation.

G. Revocation. Procedures for revocation shall be as prescribed by Chapter 20.96:Enforcement.

20.98.035 Amendments

A request for changes in conditions of approval of a reasonable accommodation, or a change toplans that would affect a condition of approval shall be treated as a new application. The

Planning Director may waive the requirement for a new application if the changes are minor, donot involve substantial alterations or addition to the plan or the conditions of approval, and areconsistent with the intent of the original approval."

Section 20. Paragraph "A" of Section 5.95.010 (definitions) of Chapter 5.95 (Short Term

Lodging Permit" of the Newport Beach Municipal Code is hereby amended to read as follows:

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"A. "Lodging unit" or "unit" shall mean "dwelling unit" as that term is defined in Section20.03.030 of this Code where the dwelling unit or residence, including the bedroom, kitchen' andbath, is rented or leased to a person or group of persons living as a single housekeeping unit."

Section 21. Ordinance No. 2007-16 passed by this Council on October i 7, 2007 and each andevery provision contained therein hereby are repealed, provided, however, that said repeal shallnot affect or excuse any violation thereof occurring prior to the effective date of this ordinance.

Section 22. Severability.

If any provision or clause of this ordinance or the application thereof is held unconstitutional orotherwise invalid by a court of competent jurisdiction, such invalidity shall not affect otherprovisions, clauses or applications of this ordinance which can be implemented without theinvalid provision, clause or application, and it being hereby expressly hereby declared that thisordinance, and each section, subsection, sentence, clause, and phrase hereof would have beenprepared, proposed, approved, adopted, and/or ratified irrespective of the fact that anyone ormore sections, subsections, sentences, clauses, and/or phrases be declared invalid orunconstitutionaL.

Section 23.

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The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The CityClerk shall cause the same to be published once in the offcial newspaper within fifteen (15) daysafter its adoption. .This Ordinance was introduced at a regular meeting of the City Council of the City of NewportBeach held on the 8th day of Januar, 2008 and adopted on the _ day of Januar 2008, by the'

following vote, to-wit:

AYES, COUNCILMEMBERS

NOES, COUNCILMEMBERS

ABSENT, COUNCILMEMBERS! .

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Attachment B: Opinion United States Court of Appeals forthe Ninth Circuit

5/13/2015 Item #11A

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

PACIFIC SHORES PROPERTIES, LLC, a

California limited liability company;ALICE CONNER; SEAN WISEMA;TERR BRIDGEMAN,

P laintifs- Appellants,

ANDREW BLAIR,

Plaintif

v.

CITY OF NEWPORT BEACH, aCalifornia municipal corporation,

Defendant-Appellee.

NEWPORT COAST RECOVERY LLC, a

California Limited LiabilityCompany; YELLOWSTONE WOMEN'SFIRST STEP HOUSE, INC.,

P laintifs- Appellants,

v.

CITY OF NEWPORT BEACH, aCalifornia municipal corporation,

Defendant-Appellee.

No. 11-55460

D.C. No.8:08-cv-00457-

JVS-RNB

No. 11-55461

D.C.No.8 :09-cv-0070 1-

JVS-RNB

OPINION

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2 PAC. SHORES PROPERTIES V.CITY OF NEWPORT BEACH

Appeal from the United States District Courtfor the Central District of California

J ames V. Selna, District Judge, Presiding

Argued and SubmittedNovember 6, 20l2-Pasadena, California

Filed September 20, 2013

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt

SUMMARY*

Housing Discrimination

The panel reversed the district court's orders grantingsummary judgment in favor of the City ofN ewport on claimsthat a City ordinance violated the Fair Housing Act, the

Americans with Disabilities Act, the California FairEmployment and Housing Act, and the Equal ProtectionClause by having the practical effect of prohibiting newgroup homes for recovering alcoholics and drug users fromopening in most residential zones.

The panel held that the district court erred in disregardingthe evidence that the City's sole objective in enacting and

* This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

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PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH 3

enforcing its ordinance was to discriininate against personsdeemed to be disabled under state and federal housingdiscrimination laws. The panel held that the plaintiffs werenot required to identify similarly situated individuals whowere treated better than themselves in order to survivesummary judgment. It held that where there is direct orcircumstantial evidence that the defendant has acted with adiscriminatory purpose and has caused harm to members ofa protected class, such evidence is sufficient to permit theprotected individuals to proceed to trial under a disparatetreatment theory.

The panel also held that the district court erred inconcluding that the plaintiffs failed to create a triable issue offact as to whether the losses that their businesses sufferedwere caused by the enactment and enforcement of theordinance when the plaintiffs presented evidence that theyexperiencéd a significant decline in business after theordinance's enactinent, that the publicity surrounding theordinance greatly reduced referrals, and that current andprospective residents expressed concern about whether thegroup-home plaintiffs would close. In addition, the panelheld that the costs borne by the plaintiffs to present theirpermit applications and the costs. spent assuring the publicthat they were still operating despite the City's efforts toclose them were compensable. Finally, the panel held that thedistrict court erred in dismissing one plaintiffs claim foremotional distress, but correctly dismissed another plaintiff ssimilar claim.

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4 PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH

COUNSEL

Elizabeth Brancart (argued) and Christopher Brancart,

Brancart & Brancart, Pescadero, California; and Steven G.Polin, Law Offices of Steven G. Polin, Washington, D.C.; forPlaintiffs- Appellants.

T. Peter Pierce (argued), Saskia T. Asamura, and Toussaint S.Bailey, Richards Watson & Gershon, P.C., Los Angeles,California; and Aaron Harp, City Attorney ofN ewport Beach,Newport Beach, California; for Defendant-Appellee.

Thomas E.Perez, Assistant Attorney General, Dennis 1.Dimsey, Teresa Kwong (argued), United States Departmentof Justice, Civil Rights Division, Appellate Section,

Washington, D.C., for Amicus Curiae United States.

Chris M. Amantea and Alexandrea H. Young, Hunton &Williams LLP, Los Angeles, California; and Paula D.Pearlman, Shawna L. Parks, and Umbreen Bhatti, DisabilityRights Legal Center, Los Angeles, California, for AmiciCuriae Disability Rights Legal Center, Disability RightsCalifornia, Western Center on Law and Poverty, andDisability Rights Education & Defense Fund.

Kira L. Klatchko and Jeffrey V. Dunn, Best Best & KriegerLLP, Indian Wells, California, for Amicus Curiae League ofCalifornia Cities.

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OPINION

REINHARDT, Circuit Judge:

Prior to 2008, "group homes"-i.e., homes in whichrecovering alcoholics and drug users live communally andmutually support each other's recovery-were generallypermitted to locate in residential zones in the City ofN ewportBeach ("the City") and they did so freely.! By 2008, anumber of residents of the City launched a campaign torestrict or eliminate group homes in their neighborhoods.After enacting several moratoria, the City enacted an

Ordinance ("the Ordinance") which had the practical effect ofprohibiting new group homes from opening in mostresidential zones. Even in the few areas where they werepermitted to open, new group homes were required to submitto a permit process. Existing group homes also had tö

undergo the same permit process in order to continue theiroperations. Among the factors to be considered whengranting or denying a permit to any group home was thenumber of other such facilities in the neighborhood.

On its face, the Ordinance did not single out grouphomes; persons recovering from addiction are protected fromhousing discrimination under state and federal anti-discrimination laws. Instead, the Ordinance facially imposedrestrictions on some other tyes of group living arrangementsas well. At the same time, the City did not impose similar

1 We follow the parties' convention in referring to addiction recovery

facilities as "group homes." The term "group homes" is not defined in theOrdinance or in any relevant statute, however. As used by the parties andin this opinion, the term refers only to addiction recovery facilities and notto any other sort of communal living arrangement.

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regulations on properties rented by homeowners tovacationing tourists, despite the fact that such rentalproperties may cause similar social problems as group homes.On advice of counsel, the City had initially planned toregulate such rental properties in order to avoid theappearance of discriminating against group homes, but itbacked down from doing so in the face of opposition from anumber of City residents.

Taken in the light most favorable to the non-iiiovingparty, Plaintiffs' evidence shows that the City's purpose inenacting the Ordinance was to exclude group homes frommost residential districts and to bring about the closure ofexisting group homes in those areas. The evidence alsoshows that the Ordinance regulated other tyes of group

residential arrangements primarily for the purpose ofmaintaining a veneer of neutrality. Several existing group

homes, which, as a result of the Ordinance, were required toapply for a use permit in order to continue operating in

residential areas, sued the City, alleging that the Ordinancediscriminated against them as facilities that provide housingopportunities for disabled individuals recovering from

addiction. The district court acknowledged the evidence thatthe City acted with a discriminatory iiiotive but found thatevidence "irrelevant" because, it. stated, the City had nottreated group homes any worse than certain other groupliving arrangements.

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We reverse and hold that the district court erred indisregarding the evidence that the City's sole objective inenacting and enforcing its Ordinance was to discriminateagainst persons deemed to be disabled under state and federalhousing discrimination laws. Although plaintiffs in an anti-discrimination lawsuit may survive summary judgment by

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identifying similarly situated individuals who were treatedbetter than themselves, this is not the only way todemonstrate that intentional discrimination has occurred.Where, as here, there is direct or circumstantial evidence thatthe defendant has acted with a discriminatory purpose and hascaused harm to inembers of a protected class, such evidenceis sufficient to permit the protected individuals to proceed totrial under a disparate treatment theory. This is no less truewhere, as here, the defendant is willing to harm certainsimilarly-situated individuals who are not members of thedisfavored group in order to accomplish a discriminatory

objective, while preserving the appearance of neutrality.

We also hold that the district court erred in concludingthat the Plaintiffs failed to create a triable issue of fact as to

whether the losses that their businesses suffered were causedby the enactment and enforcement of the Ordinance. ThePlaintiffs presented evidence that they experienced asignificant decline in business after the Ordinance's

enactment, that the publicity surrounding the Ordinance

greatly reduced referrals, and that current and prospectiveresidents expressed concern about whether the group homePlaintiffs would close. By requiring the Plaintiffs to provemore, the district court failed to draw all reasonable

. inferences in their favor, as it was required to do at summaryjudgment. In addition, we hold that the costs borne by thePlaintiffs to present their permit applications and the costsspent assuring the public that they were still operating despitethe City's efforts to close them are compensable. Finally, wehold that the district court erred in dismissing PlaintiffWiseman's claim for emotional distress, but correctlydismissed Plaintiff Bridgeman's similar claim.

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FACTUAL BACKGROUND

I

Newport Beach ("the City") is a Southern Californiabeachfront community with about 80,000 residents and is oneof the wealthiest cities in the United States.2 In the late 1990s"group homes" began opening in increasing numbers in theCity, particularly in the beachfront neighborhoods of WestNewport and Balboa Park. Group homes are residentialfacilities in which individuals recovering from drug andalcohol addiction temporarily reside. They provide acommunal living environment in which residents help eachother to recover from their addictions. In order to preserve asubstance- free environment, group homes limit occupancy topersons who are sober; a resident who uses drugs or alcoholis immediately evicted. Because individuals recovering fromaddiction need to stay for varying lengths of time, they do not

typically sign written leases. Typically, group homeoperators meet with and screen potential residents in advanceto ensure that they are serious about pursuing a sober

lifestyle.

By April 2007, the City contained 73 group homes, 48 ofwhich were licensed treatment facilities and 25 ofwhich wereunlicensed sober houses.3 At that time the City also had 801

2 It is also the setting for the popular television show The 0. c., now

playig on secondary runs. Also currently showing on Netflix is Arrested

Development.

3 There are two types of group homes. Unlicensed "sober houses," also

known as "sober living homes," are group homes occupied by persons inrecovery with no formal substance abuse treatment program. Licensed

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outstanding short-term lodging permits, which were issued toowners of properties that were regularly offered for rental forshort periods of time. These homes are usually rented forprofit for a period of 30 days or fewer to tourists who electNewport Beach as a beach vacation destination. Like grouphomes, short-term lodgings cater to a revolving clientele thatcan cause strains on neighborhood resources. In NewportBeach, "short term lodgings" are generally referred to as"vacation homes," and we use the terms interchangeably.

The three group home Plaintiffs, Pacific Shores PropertiesLLC ("Pacific Shores"), Newport Coast Recovery LLC("NCR"), and Yellowstone Women's First Step House, Inc.("Yellowstone") (collectively, "the Group Homes") were partof the influx of group homes into Newport Beach during themid-to-late 1990s and the early 2000s. The individualPlaintiffs are, respectively, one of the owners and two formerresidents of Pacific Shores. Pacific Shores and Yellowstoneoperate unlicensed sober houses, while NCR is a state-licensed facility. Each Group Home spent hundreds ofthousands of dollars purchasing and renovating the homes itoperates.

The increasing number of group homes in Newport Beachgenerated escalating hostilitY on the part of some Cityresidents who, in a series of public meetings, repeatedly

described the persons in recovery as "not true handicapped,""criminals," "gang members," and "druggies," among other

California Alcohol and Drug Program ("ADP") facilities, by contrast,provide substance abuse treatment on site.

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derogatory terms.4 In response to these concerns, the Citypassed a series of inoratoria in 2007-0rdinances 2007-8,2007 -10, and 2007 -16 (collectively, the "Moratoria")-followed by a new permanent zoning Ordinance 2008-5 ("theOrdinance"). Because the City's intent in passing thesemeasures is central to this appeal, we recount their history indetaiL.

II

The City's attempts to formally address group hoines

began at a City Council meeting on January 23, 2007. At thatmeeting, members of the public expressed their displeasurewith group homes and submitted a petition signed by 88residents asking the City Council to address the issue.Shortly before that meeting, in an email to a concerned

citizen, then-Mayor Rosansky wrote, "I suspect that these(group home) facilities do nothing to really solve the problembut only serve as wherehouses (sic) for alcoholics and drugaddicts until they really hit bottom."

The City Council decided to fonn an Intense ResidentialOccupancy Committee ("IROC") "to review and understandthe state and federal laws and regulations that limit (the)City's ability to regulate" and "to research and identifysolutions to the problems and make. . . recoinmendations tothe (C)ity (C)ouncil for changes to regulations applicable toall residential. uses in a manner that preserves the residential

4 One City resident described the attitude in Newport Beach towards

group homes in particularly stark terms: "the idea of the guys with torchesand pitchforks coming off the bridge is much closer to the sentiment (inone neighborhood) than the oh, ho-hum we want to help some poordruggy for the tenth time go through the system."

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PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH i i

character of our neighborhoods." Eight members wereappointed to the IROC, including then-Mayor Rosansky,

another council member, and Planning Commissioner

Michael Toerge, as well as several private citizens.

The IROC's work culminated in a proposed ordinancethat imposed a moratorium on establishing or operating anynew "transitory uses" in a residential district for a period of45 days, including group homes and short term lodgings.Angry citizens protested the freeze on the latter category, i.e.,vacation homes. Craig Batley, a realtor and a member of theIROC, e-mailed City Council members to express the viewthat "the focus needs to be on Group Homes and only GroupHomes." At a City Council meeting on April 24, 2007,citizens submitted a 400-signature petition against includingshort term lodgings in the moratorium. The City neverthelessenacted the moratorium as drafted. In a newspaper articlepublished shortly thereafter, the City Attorney expressed theview that regulating only group homes would bediscriminatory absent a showing that they caused differentsocial problems than short-term lodgings.

In order to demonstrate that group homes did causedifferent social problems than vacation homes, the Cityconducted a citizen survey on the respective impacts of eachtype of housing. The City had never conducted a survey inconnection with legislation before. The survey wasdistributed to four neighborhoods, three of which were the"(nJeighborhoods that seemed to generate the mostcomplaints about (group hoines J." One citizen opposed to

group homes had one hundred surveys left on her doorstep topersonally distribute.

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The City Attorney prepared a report suinmarizing the 47survey responses the City received and recommending thatthe City Council lift the moratorium with respect to vacationhomes. The City Attorney's report also suggested amendingthe City Code to separately address problems caused by

short-term lodgings, although the proposed amendments werenever enacted. On May 30, 2007, the City Council passedOrdinance 2007-10 ("the revised Moratorium"), whichfollowed the report's recommendation to lift the freeze onshort-term lodging permits, but continued to prohibit newgroup homes. The revised Moratorium was renewed for anadditional year on October 30,2007. The district court foundthat the revised Moratorium was facially discriminatorybecause it singled out group homes for adverse treatment.

Around spring or fall of 2007, the City created an"Interdepartmental Group Homes Task Force," headed byAssistant City Manager David Kiff to "verify" the numberand location of group homes in the City, and to enforce codeviolations against them, including violations of the then-

applicable moratorium. The City hired James Sinasek towork with Kiff. During the second half of 2007, Sinasekinvestigated group homes by searching the internet to locatethem and posing as a potential client. He visited suspectedgroup home sites, observed the properties, and photographedresidents, vehicles, and license plates at or around theproperties. Both Kiff and Sinasek attended meetings at the

homes of members of the Concerned Citizens of NewportBeach ("CCNB"), a citizen advocacy group opposed to grouphomes, atwhich CCNB members provided lists of additionalsuspected group home sites for Kiff and Sinasek to

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investigate. 5 As a result of this investigation, three group

homes, including Pacific Shores, were cited for violating therevised Moratorium.

Meanwhile, City officials worked to amend the City'smunicipal zoning code. At a Planning Commission meetingon June 21, 2007, the City Planner and outside counsel,Goldfarb & Lipman ("Goldfarb") presented a draft ordinanceto the Commission; The draft regulated both group homesand short-term lodgings because Goldfarb advised that doingso was necessary to avoid enacting an unlawfuldiscriminatory ordinance. Commissioner Toerge, a memberof the IROC, argued that the City needed to "be moreaggressive" because it was "inundated" with group homes; heendorsed an alternate draft prepared by attorneys employedby the CCNB. Goldfarb subsequently prepared amemorandum explaining why the CCNB ' s proposedordinance would be discriminatory.

Nonetheless, the City Planner prepared a revised

ordinance that did not regulate short-term lodgings. OnSeptember 20, 2007, an attorney from Goldfarb testified tothe City Council that not regulating vacation homes mightraise concerns about discrimination, and stated that "( t Jhereare still other non-conforming uses that are not necessarilyresidential care facilities (i.e., group homes J. We seem to notknow exactly how many of those there are. . . but I think yougrasp the situation that it does-it does change the overallimpression." Most public comments from City residentsexpressed frustration that the Commission had rejected asfacially discriminatory the CCNB' s more aggressive

5 These lists included the meeting sites for members of Alcoholics

Anonymous and Narcotics Anonymous.

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14 PAC. SHORES PROPERTIES V. CiTY OF NEWPORT BEACH

ordinance. Commissioner Toerge suggested that theCommission should not be, considering legal discriminationconcerns: "I mean save that for the courtroom." ThePlanning Commission approved the revised draft.

While the Planning Commission was considering draftsof the Ordinance, the City Council formed an Ad HocCommittee on Group Residential Legal Review whose solepurpose was to replace Goldfarb, the firm advising the Citythat failure to regulate short-term lodgings would bediscriminatory, with new special counseL. This Committee'swork resulted in the city hiring new counsel, Richards,

Watson, & Gershon PC, the firm that represents the City inthis appeaL.

On October 9, 2007, the City Council formed anadditional Ad Hoc Committee on Group Residential Uses towork with new counsel on revising the draft ordinance thathad been recommended by the Planning Commission. Thecommittee was chaired by Council Member Henn andincluded two other council members. No such Committeehad ever been formed by the city before and its meetingswere not open to the public.

On January 8, 2008, the Committee proposed another

draft ordinance to the City CounciL. . Unlike the draftapproved by the Planning Commission, this one provided thathearing officers who were to adjudicate group homes' usepermit applications were to consider as a factor theconcentration of group homes in the neighborhood. CouncilMember Henn defended the Ordinance against residents whowanted to limit the density of group homes even moreexplicitly. He explained that the Ordinance had four

objectives. The first was to ensure that no new group homes

5/13/2015 Item #11A

PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH i 5

would open in Newport Beach: "Do you get my drift? Nonew ones anywhere unless an applicant can somehow provea need for special accommodation under federal law." Thesecond objective was to "assure that those homes that dooperate in (the J community must meet the requirements of thestringent process and agree to strict operational guidelines ortheir permit will be revoked." Third, the City would "assurethat there will be strict enforcement of the new ordinancesgoing forward." The fourth objective was "to substantiallyrelieve the existing overconcentration of group homes andtheir adverse impacts."

Henn continued: "We have carefully evaluated the idea ofsimply banning all unlicensed (group J homes in all but themultifamily areas of the Peninsula. The siren song of thatsolution was carefully evaluated, and unfortnately, as in so

many facets of life, our ideal must be tempered by reality."He explained that "to do so would risk an immediately

successful court challenge that would immediately enjoin theCity from executing the ordinance . . . while we fight it incourt." He concluded saying, "I believe that taken togetherthese findings and requirements will, in fact, result in asubstantial reduction in the number of group homes on thePeninsula. . . . I ask you judge us by our actual results.,,6

On January 22,2008, the City Council met to approve theOrdinance and yet again confronted citizens who felt that theOrdinance should be even stricter and expressly regulate theconcentration of group homes. Outside counsel explainedthat the approach adopted by the Ordinance-case-by-case

6 Although Henn at one point stated that the City wished to ban

unlicensed homes, the larger context of his remarks suggests that the Citypreferred to ban all group homes, both licensed and unlicensed.

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16 PAC. SHORES PROPERTIEs V. CITY OF NEWPORT BEACH

analysis of each facility by a Hearing Officer-was harder tochallenge in court than a strict limit on the density of grouphomes. Counsel assured the public that the Ordinanceallowed "plenty of. . . hooks and standards for a (HJearing(OJfficer to apply (to deny a permit applicationJ." CouncilMember Henn described the use permit process imposed bythe Ordinance as "a very substantive attack" on the "issue ofoverconcentration (of group homes. J" Henn also pointed outthat he was "not aware' of any other city in the State ofCalifornia that has adopted an ordinance that's as aggressiveas (the City'sJ in tenns of the location of new (group

homesJ." Then, immediately after Henn's cOlnments, theCity Council approved the Ordinance, which prohibits newgroup homes in most residential areas, requires existing grouphomes in those areas to submit to a burdensome permit

process, and subjects those seeking to establish group homesin the limited areas in which they are still permitted to operateto the same onerous permit process.

III

The Ordinance is codified as part of Title 20 of the Cityof Newport Beach Municipal Code ("NBMC"). Prior to theOrdinance's enactment, the City treated group homes as"single housekeeping units.'" "Single housekeeping units" aregenerally permitted to locate in all residential zones withoutany special permit. The Ordinance's key innovation was toamend the definition of "single housekeeping unit" to excludegroup homes. This was accomplished in two critical ways:the amended definition added the requirements that (1) asingle housekeeping unit have a single, written lease and (2)the residents themselves must decide who will be a memberof the household. As a result of these amendments, grouphomes no longer qualify as "single housekeeping units"

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because the residents do not sign written leases and arechosen by staff (instead of by each other) to ensure themaintenance of a sober environment.7

Instead, under the Ordinance, group homes are nowregulated as "residential care facilities"-i.e., facilities inwhich disabled individuals reside together but not as a "singlehousekeeping unit."s NBMC § 20.05.030(H)-(J). As"residential care facilities," group homes now face significantrestrictions on location, and otherwise, to which they werenot subject prior to the Ordinance's enactment when theytyically qualified as "single housekeeping units" and wereable to operate freely in all residential areas. Under theOrdinance, as "residential care facilities," new group homesmay not locate in most residential zones under anycircumstances, although they may locate in "multi-family"residential zones if they obtain a special use permit. NBMC§ 20.1 0.020. Group homes that already existed in any

7 A very small number of facilities are run by the residents alone,

without the supervision of an operator, and thus may stil qualify as"single housekeeping units." Those few facilities might thereforeremainunegulated by the Ordinance. None of the Group Home Plaintiffs herefall in that category.

8 The NBMC distinguishes between "general" residential care facilities

(those with more than six residents) and "small" residential care facilities(those with six or fewer residents), although the difference is not relevanthere. California law requires that licensed facilities with six residents orfewer be treated as single-family dwellings for zoning purposes by allmunicipalities. As a result such facilities are classified as "small licensedresidential care facilities" under the NBMC and treated the same as singlefamily homes. All unlicensed residential care facilities, on the other hand,are "general residential care facilities" subjectto the Ordinance, regardlessof size. Similarly, all licensed facilities with more than six residents are"general residential care facilities."

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residential zone when the Ordinance was enacted and whichwere rendered nonconforming by the Ordinance, were

required to apply for a special use permit within 90 days of itsenactment in order to continue operating. NBMC§§ 20.62.080(A)(4), 20.62.090, 20.91A.020. Thus, thepractical result of the Ordinance is that group homes aretreated far less favorably than they were prior to theOrdinance's enactment.9

The extensive conditions and findings that a hearingoffice must make in order to issue a special use permit in aresidential zone are set forth in NBMC § 20.9IA. Amongother factors, the hearing officer must consider whethergranting a permit to a particular residential care facility wouldbe "compatible with the character of the surrounding

neighborhood" and whether granting the use permit willresult in a concentration of more than roughly 1-2 such

9 As we explain in more detail, infra, the district court mistakenly relied

on the fact that the Ordinance imposes even more restrictive regulationson other types of "group residential" living arrangements. "Groupresidential" living arrangements, a classification that was newlyintroduced by the Ordinance, are "( s Jhared living quarters, occupied bytwo or more persons not living together as a single housekeeping unit" and"include(J, without limitation, boarding or rooming houses, dormitories,fraternities, sororities, and private residential clubs." NBMC§ 20.05.030(C). Such living arrangements, whether new or pre-existing,àre flatly prohibited from existing in any residential zone. There is noevidence, however, that more than a minimal number of "groupresidential" living arrangements existed in residential zones at the timethat the Ordinance was enacted. NBMC §§ 20.05.030(C), 20.10.020. Inany event, it seems unlikely that any significant number of suchestablishments would have existed in the residential areas of NewportBeach.

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facilities per block,10 NBMC § 20.91A.060(D). Use permitdenials may be appealed to the City Council under asubstantial evidence standard of review. NBMC§ 20.91A.040.

Finally, the Ordinance also provides that the rulesdescribed above can be waived if a residential care facilitycan deinonstrate that such waiver is a necessary "reasonableaccommodation" for the disabled under federal or state fairhousing laws. NBMC, Chapter 20.98. As with use permits,the Ordinance requires the hearing officer to consider whetherthe requested accommodation would "alter the character ofthe neighborhood," and the concentration of facilities in theneighborhood in question and the City as a whole. NBMC§ 20.98.025(C)-(D)

iv

Council Member Henn had encouraged the public tojudge the city by its results, and the results were significant.On May 23, 2008, three days after the 90-day deadline forpre-existing group homes to file a use permit application, theCity served "abatement notifications" on every group homein the City that had not yet applied, including Pacific Shores.No abatement notices were sent to any other non-conformingbusiness or individual although the City was aware of certain

10 Because the Plaintiffs do not directly challenge the legality of

permitting the hearing officer to consider the concentration of such

facilities when granting or denying permts, we do not address thatquestion. But see, e.g., Larkin v. State of Mich. Dep 't of Social Servs.,89 F.3d 285,289-90 (6th Cir. 1996) (invalidating a spacing requirementfor housing for the disabled); Children's Allance v. City of Bellevue,

950 F. Supp. 1491, 1499 (W.D. Wash. 1997) (similar).

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non-conforming cOlnmercial entities located in residentialareas.u

Because they each had more than six residents, PacificShores, NCR, and Yellowstone were all classified by the Cityas "residential care facilities, general," and were thereforerequired to obtain a use permit or a . reasonable

accOlnmodation in order to continue operating in residentialzones. NBMC § 20.91A.020. The managers of all threefacilities testified that the permit application process wasburdensome, time-consuming, and costly, requiring hundredsof hours of staff time as well as tens of thousands of dollarsin legal assistance to prepare and present the permit

applications. The public hearings held regarding the GroupHomes' permit applications were attended by City residentswho repeated the same slurs and stereotypes about persons inrecovery that had been common during prior publicgatherings and yelled at the Group Homes' managers andattorneys.

On April 14, 2009, after two public hearings, the hearingofficer denied Yellowstone's use permit and reasonable

accommodation applications in their entirety, finding thatYellowstone was not qualified for a special use permitbecause it had not fully complied with zoning laws when itwas first opened; the City Council affirmed that deniaL.

NCR's applications for a use permit and reasonable

accommodation were denied on September 17, 2009, in partbecause of its proximity to another group home, as well as a

11 The City did serve abatement notices on some of these commercial

entities on July 12, 2010, shortly after the Plaintiffs relied on the City'sfailure to enforce the Ordinance against these entities in their oppositionto the City's summary judgment motion.

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school, a day care facility, and a liquor store. NCR appealedto the City Council, obtained a remand, was denied again, andthen appealed a. second time, but was forced by economicpressures to close prior to having its second appeal heard.

On September 23, 2008, Pacific Shores submitted areasonable accommodation application for 18 beds at each ofits facilities, but did not apply for a use permit. Theapplication was denied, and before its appeal could be heard,Pacific Shores submitted an amended reasonable

accommodation request seeking to be allowed to continueoperations at two of its three houses with a maximum of 12residents per facility, instead of 18. That request was granted.

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The Ordinance shut down other group homes. On July30, 2008, Kiff gave a public presentation defending the

Ordinance's efficacy. Kiff explained that the Ordinance hadforced group homes "to fight, stay, or leave," and noted thatof just over 600 group home beds in the City prior to theOrdinance, 220 were at facilities that would soon be requiredto close. According to Kiff, housing opportnities in grouphomes were set to decline by 40% cityide "with all of theuse permit hearings yet to come." He commented that PacificShores was the City's "most aggressive challenger" and that"they (we Jre not going quietly." Kiff ended his presentationstating that anti-discrimination laws "make(J me iliad, too"but that "as long as I'm here, you have my commitment-andI know you do of the City Council-to trying to bring owner-

occupied back to West Newport."

As Kiff predicted, by February 2009, more than 25 GroupHomes-about one third of the number of Group Homes thathad existed in 2007-had either closed or were pendingclosure. By March 2010, only four group homes had been

5/13/2015 Item #11A


granted use permits; five others had obtained reasonable

accommodations, including the two granted to Pacific Shores.No new group homes had opened since the Ordinance'senactment. 12

The City's enforcement of the Ordinance against grouphoines was widely publicized in the press, on the internet, viaa public letter from the City to residents, and on the City'swebsite. The City's actions were particularly well knownwithin the community of providers and therapists in OrangeCounty and Southern California, and the City acknowledgedas much in its communications with citizens. The managersand staff at the Group Homes spent substantial portions oftheir time contacting referral. sources to assure them that,despite negative publicity, the Group Homes were notclosing. Both Pacific Shores and NCR hired web consultantsto improve their web ranking so that their webpages

"appeared above web pages about the City's actions to close"them.

Each of the Group Homes experienced a dramatic declinein revenues of between 40% and 50% in the two years afterthe Ordinance's enactment. NCR closed in 2009 as a resultof its declining business. In addition, as the City

acknowledged at oral argument, prior to reducing itsreasonable accommodation request to only 12 beds perhomes, Pacific Shores had a higher occupancy rate at both ofthe two homes for which its request was granted, so it lostsubstantial revenue as a result of the new 12 bed limitation.

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12 Doing so would have been difficult. Under the limitations imposed

by the Ordinance, only 33 out of 16,811 residential parcels in the City arepossible sites for a new group home.

5/13/2015 Item #11A

PAC. SHORES PROPERTIESV. CITY OF NEWPORT BEACH 23

PROCEDUR HISTORY

This is a consolidated appeal of two separate lawsuits

resulting from the Ordinance's enactment and enforcement.Pacific Shores, its owner Alice Connor, and two PacificShores residents sued the City alleging discrimination underthe federal Fair Housing Act ("FHA"), the Americans withDisabilities Act ("ADA"), California Fair Employment andHousing Act ("FEHA"), and the Equal Protection Clause, aswell as assorted other state' and federal statutory andconstitutional claims not at issue here. NCR and Yellowstonefiled a separate suit alleging nearly identical claims. All ofthe Plaintiffs sought damages as well as declaratory andinjunctive relief. The district court disposed of most of thePlaintiffs' claims in two separate suminary judgment rulings.

First, the district court granted summary judgment to theCity "with respect to (all of the J Plaintiffs' disparatetreatment and selective enforcement claims brought under theFHA, ADA, FEHA, and the Equal Protection Clause,"because the Plaintiffs failed to show that they were "treateddifferently than similarly situated non-disabled individuals inthe enforcement of Ordinance 2008-5." In so doing, the courtacknowledged "the large amount of evidence. . . regardingNewport Beach's allegedly discriminatory intent," butconcluded that it was "irrelevant." However, the districtcourt denied the City suminary judgment as to Pacific Shores'claim that the Revised Moratorium was discriminatory,holding that it was facially discriminatory against group

homes.13

13 Pacific Shores was the only plaintiff to challenge the enforcement ofthe Revised Moratorium because it was the only plaintiff against whom itwas enforced.

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In a second summary judgment order, the district courtdismissed all of the Group Homes' remaining claims fordamages, determining that none of the Group Homes haddemonstrated that any of the harm they suffered was caused. by the Revised Moratorium or the Ordinance as opposed toother causes for which the City was not responsible, such asthe downturn in the economy or hostility of City residents

towards group homes. The district court also dismissed thetwo individual residents' damages claims, concluding thatneither produced any evidence of having sufferedcompensable emotional distress.

In order to obtain a final judgment, the Plaintiffsvoluntarily dismissed their remaining claims with prejudice,including their claims to injunctive relief under a disparateimpact theory and their challenges to the City's adjudicationof each Group Home's particular use permit and reasonableaccommodation applications. The district court entered finaljudgment in favor of the City on March 14, 2011.

The Plaintiffs timely appealed for review of two issues:'(1) "whether the district court erred in granting summaryjudgment against plaintiffs on their intentional discriminationclaims despite substantial evidence that the City enacted azoning ordinance for the purpose of discriminating againsthousing for disabled persons and enforced that ordinance toeffect its discriminatory purpose" and (2) "whether thedistrict court erred in granting summary judgment againstplaintiffs, who were the targets of the discriminatoryordinance enacted and enforced by the City, on the groundsthat plaintiffs could not show that the City was the cause ofany of their injuries." We have jurisdiction pursuant to

28 U.S.C. § 1291.

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STANAR OF REVIEW

A district court's grant of summary judgment is reviewedde novo. Balvage v. Ryderwood Improvement and Servo

Ass'n, Inc., 642 F.3d 765,775 (9th Cir. 2011). We mustdetermine, viewing the evidence in the light most favorableto the nonmoving part, whether there are any genuine issuesof material fact and whether the district court correctlyapplied the relevant substantive law. Olsen v. Idaho State Bd.

ofMed.,363 F.3d 916,922 (9th Cir. 2004). Whenplaintiffsallege intentional discrimination under the ADA, FHA, orFEHA,14 "any indication of discriminatory motive maysuffice to raise a question that can only be resolved by a fact-finder." McGinest v. GTE Servo Corp., 360 F.3d 1103, 1124

(9th Cir. 2004) (internal quotations marks and ellipsesomitted).

ANALYSIS

I

A

The Fair Housing Act renders it unlawful "(t)o.discriminate in the sale or rental, or to otherwise makeunavailable or deny, a dwelling to any buyer or renter

14 We do not separately discuss the Plaintiffs' state law fair housing

claims from this point on because we "apply the same standards to FHAand FEHA claims." Walker V. City of Lakewood, 272 F.3d 1114, 1131 n.8(9th Cir. 2001).

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because ofa handicap(.J"15 42 U.S.C. § 3604(£)(1). It is wellestablished that persons recovering from drug and/or alcoholaddiction are disabled under the FHA and therefore protectedfrom housing discrimination. City of Edmonds v. WashingtonState Bldg. Code Council, 18 F.3d 802, 803, 804 (9th Cir.1 994); see 42 U.S.C. § 3602(h). It is equally well establishedthat zoning practices that discriminate against disabled

individuals can be discriminatory, and therefore violate§ 3604, if they contribute to "mak(ingJ unavailable or

deny(ingJ" housing to those persons. See id. at 805; see alsoCasa Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d252,257 n.6 (1st Cir. 1993) (collecting cases and discussinglegislative history); H.R. Rep. No. 100-711, at 24 (1988)(stating that amendments to the FHA to include protectionsagainst disability discrimination "also apply to state or localland use or health and safety laws, regulations, practices, ordecisions which discriminate against individuals withhandicaps"). Finally, group homes such as the ones at issuehere are "dwellings" under 42 U.S.C. § 3602(b), and

therefore the FHA prohibits discriminatory actions thatadversely affect the availability of such group homes. See,e.g., Schwarz v. City of Treasure Island, 544 F.3d 1202,1213-16 (11 th Cir. 2008); Lakeside Resort Enters., LP v. Bd.of Superiors of Palmyra Twp., 455 F.3d 154, 160 (3d Cir.2006); Larkin, 89 F.3d at 289.16

15 Although the FHA refers to "handicap," hereinafter "we use the

preferred term, 'disabled,' except when referring to the statutorylanguage." Budnick v; Town of Carefree, 518 F.3d 1109, 1114 n.5 (9thCir. 2008). .

16 The Group Homes have a cause of action, even though they are not

themselves disabled individuals, because the FHA permits suit by anyone"aggrieved" by housing dis~rimination against the disabled. See San

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The Americans with Disabilities Act provides that "noqualified individual with a disability shali, by reason of suchdisability, be excluded from participation in or be denied thebenefits of the services, programs, or activities of a publicentity, or be subjected to discrimination by any such entity."42 U.S.C. § 12132. Like the FHA, this provision prohibitsgovernmental entities from discriminating against disabledpersons through zoning. See Bay Area Addiction Research &Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730-32 (9thCir. 1999). Also like the FHA, the AD A's protections extendto persons recovering from drug or alcohol addiction.17

Hernandez v. Hughes Missile Systems Co., 362 F.3d 564,568

(9th Cir. 2004). The standards regarding disparate treatmentclaims under the ADA are typically identical, and courtsaccordingly "interpret them in tandem," as we do here.Tsombanidisv. West Haven Fire Dep 't., 352 F.3d 565, 573nA (2d Cir. 2003).18

Pedro Hotel Co. v. City of Los Angeles, 159F.3d470,475 (9thCir.1998);42 U.S.C. § 3613 (same).

17 The ADA provides the Group Homes with a cause of action, even

though they are not themselves disabled. See, e.g., MX Grp., Inc. v. Cityof Covington, 293 F.3d 326, 334 (6th Cir. 2002); 42 U.S.C. § 12133(extending a cause of action to "any person alleging discrimination on thebasis of disability").

18 In addition to prohibiting intentional discrimination, both the FHA and

the ADA also require public entities to grant such "reasonableaccommodations" as are necessary to provide equal housing opportities

to disabled individuals. See, e.g., id. at 573; McGaryv. City of Portland,386F.3d 1259, 1261-62

(FHA), 1269 (ADA)(9thCir. 2004). Onappeal,presumably because they challenge the Ordinance as a whole rather thanthe City's failure to grant their individual reasonable accommodationrequests, the Plaintiffs have proceeded primarily based upon a disparatetreatment theory.

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28 PAC. SHORES PROPERTffS V. CITY OF NEWPORT BEACH

Quite properly, the City does not challenge any of thesefoundational principles. histead, the primary liability-phasequestion presented here is whether the district court properlydismissed the Plaintiffs' disparate treatment claims for failureto demonstrate that any similarly situated entity was treatedworse than the Plaintiffs under the Ordinance. The Plaintiffsargue that it was error to disregard the large amount ofevidence in the record suggesting that the Ordinance wasenacted for the discriminatory' purpose of harming grouphomes and thereby limiting the housing opportnitiesavailable to individuals recovering from addiction. We nowtum to that question.

B

Our cases clearly establish that plaintiffs who allegedisparate treatment under statutory anti-discrimination lawsneed not demonstrate the existence of a similarly situatedentity who or which was treated better than the plaintiffs inorder to prevaiL. See, e.g., Budnick, 518 F.3d at 1114;McGinest v. GTE Servo Corp., 360 F.3d 1103, 1122 (9th Cir.2004) (same in Title VII context).19 Proving the existence ofa similarly situated entity is only one way to survivesummary judgment on a disparate treatment claIin. See

19 The standards of proof required for the Plaintiffs' FHA, ADA, and

FEHA disparate treatment claims are identical, and are all drawn largelyfrom Title VII cases.. See Budnick, 518 F.3d at 1114 (Title VII standardsapply to FHA claims); Walker, 272 F.3dat 1 131 n.8 (FHA standards applyto FEHA claims); Hernandez, 362 F.3d at 568 (Title VII standards applyto ADA claims).

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).20A plaintiff does not, however, have to rely on the McDonnellDouglas approach to create a triable issue of fact regardingdiscriminatory intent in a disparate treatment case. See Costav. Desert Palace, Inc., 299 F.3d 838,855 (9th Cir. 2002) (enbanc), aff'd, 539 U.S. 90 (2003). Instead, he may "simplyproduce direct or circumstantial evidence demonstrating thata discriminatory reason more likely than not motivated" thedefendant and that the defendant's actions adversely affectedthe plaintiff in soine way. McGinest, 360 F.3d at 1122; seealso Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,121 (1985) ("(TJhe McDonnell Douglas test is inapplicablewhere the plaintiff presents direct evidence ofdiscrimination."); Lowe v. City of Monrovia, 775 F.2d 998,1006-07 (9th Cir. 1985), amended on other grounds,784 F .2d 1407 (9th Cir. 1986).

When plaintiffs rely on the "direct or circumstantialevidence" approach, instead of McDonnell Douglas, tosurvive summary judgment, we tum to the "sensitive" multi-factor inquiry articulated by the Supreme Court in ArlingtonHeights v. Metropolitan Housing Corp., 429 U.S. 252,266(1977), to determine whether the plaintiffs have created atriable issue of fact that the defendant's actions were

motivated by discriminatory intent. See Gay v. Waiters' &

20 In McDonnell Douglas, the Supreme Court set forth a burden shiftingmechanism explaining how a plaintiff could surive summary judgmentbased on the treatment of a similarly situated entity. Under McDonnellDouglas, a plaintiff establishes a prima facie case of discrimination byshowing that he was treated worse than such an entity. Id. at 1824. Theburden then shifts to the defendant to present a legitimate reason for theallegedly discriminatory action. Id. Finally, the plaintiff bears theultimate burden of demonstrating the explanation is pretextual. Id. at1824-25.

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Dairy Lunchmen's Union, 694 F.2d 531,550 (9th Cir. 1982)(applying Arlington Heights).21 Under Arlington Heights, acourt analyzes whether the defendant's actions were

motivated by a discriminatory purpose by examining (1)statistics demonstrating a "clear pattern unexplainable ongrounds other than" discriminatory ones, (2) "(tJhe historicalbackground of the decision," (3) "(tJhe specific sequence ofevents leading up to the challenged decision," (4) thedefendant's departures from its normal procedures orsubstantive conclusions, and (5) relevant "legislative oradministrative history." 429 U.S. at 266-68; see Comm.Concerning Cmty. Improvementv. City of Modesto, 583 F.3d

690, 703 (9th Cir. 2009) (applying the Arlington Heightsfactors). These factors are non-exhaustive. Arlington

Heights, 429 U.S. at 268. When a plaintiff opts to rely on theArlington Heights factors to demonstrate discriminatory

intent through direct or circumstantial evidence, the plaintiffneed provide "very little such evidence. . . to raise a genuineissue of fact. . . ; any indication of discriminatory motive. . .may suffice to raise a question that can only be resolved by afact-finder." Schnidrig v. Columbia Mach, Inc., 80 F.3d1406, 1409 (9th Cir. 1996) (quoting Lowe, 775 F.2d at 1009).

21 The Arlington Heights test was developed to detect discriminatory

animus in the context of a Foureenth Amendment equal protection claim.However, it is well established that the Arlington Heights factors alsoprovide one way for a plaintiff who alleges statutory discrimination toestablish discriminatory intent. See id.; accord Gallagher v. Magner,619 F.3d 823,833 (8th Cir. 2010) (applying the Arlington Heights factorsto discern whether a county acted with discriminatory intent in the FHAcontext); Hallmark Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276,1283-84 (11 th Cir. 2006) (same); Tsombanidis, 352 F.3d at 579 (same inFHA and ADA contexts).

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The district court nonetheless refused to consider the"large amount of evidence submitted by Plaintiffs regardingNewport Beach's allegedly discriminatory intent." Althoughit purported to acknowledge that plaintiffs in an anti-discrimination lawsuit need not demonstrate the existence ofa similarly situated entity, we see no way of interpreting thedistrict court's position as anything other than a suggestionthat a plaintiff can establish a prima facie case of intentionaldiscrimination only by using the McDonnell-Douglas burdenshifting construct. As described above, we have

unambiguously rejected this position previously, and we doso again now. McDonnell-Douglas simply permits a plaintiffto raise an inference of discrimination by identifying asimilarly situated entity who was treated more favorably. Itis not a straightjacket requiring the plaintiff to demonstratethat such similarly situated entities exist.

This case demonstrates why requiring anti -discriminationplaintiffs to prove the existence of a better-treated entitywould lead to unacceptable results. According to the districtcourt's theory, Plaintiffs in anti-discrimination suits would beunable to demonstrate the discriminatory intent of adefendant that openly admitted its intent to discriminate, solong as the defendant (a) relies on a facially neutral law orpolicy and (b) is willing to "overdiscriminate" by enforcingthe facially neutral law or policy even against similarly-

situated individuals who are not members of the disfavoredgroup. Such a rule presents the "grotesque scenario where aU

(defendant J can effectively immunize itself from suit if it isso thorough in its discrimination that all similarly situated

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(entities) arevictimized."22 Abdu-Brisson v. Delta Air Lines,

Inc., 239 F.3d 456,468 (2d Cir. 2001).

This "grotesque scenario" is not the law. Id. A

willingness to inflict collateral damage by harming some, oreven all, individuals from a favored group in order tosuccessfully harm members of a disfavored class does notcleanse the taint of discrimination; it simply underscores the

. depth of the defendant's animus. See, e.g., Grifn v. Cnty.Sch. Bd. o/Prince Edward Cnty., 377 U.S. 218,231 (1964)(holding that although a county has the legal power to closeall of its public schools, it could not do so for the purpose ofpreventing children from attending desegregated schools). Asone district court observed in a case quite similar to this one,"that an ordinance also discriminates against individualsunprotected by the FHA does not eliminate a FHA violation."Children's Alliance, 950 F. Supp. at 1496 n.8.23

22 Another possibility where no similarly situated entity wil be available

is where the nature of the defendant's discrimination is such that no suchentity could exist. For example, inPyke v. Cuomo, 258 F.3d 107, 109 (2d

. Cir. 2001), Native Americans alleging that state police officialsdeliberately provided reduced police services on reservations were notrequired to show that similarly situated groups were better treated becauseit would be impossible to identify any other group "whose situation issimilar to Native Americans living on a reservation and exercising asubstantial measure of self-governent independent ofN ew York State."

23 Children's Allance involved the use of a "proxy classification," a

variation on the overdiscrimination theme. Proxy discrimination is a formof facial discrimination. It arises when the defendant enacts a law orpolicy that treats individuals differently on the basis of seemingly neutralcriteria that are so closely associated with the disfavored group thatdiscrimination on the basis of such criteria is, constructively, facialdiscrimination against the disfavored group. For example, discriminatingagainst individuals with gray hair is a proxy for age discrimination

because "the 'fit' between age and gray hair is sufficiently close."

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The principle that overdiscrimination is prohibited

undergirds all of constitutional and statutory anti-discrimination law, although it often goes unsaid preciselybecause it is so foundationaL. Discriminatory laws, policies,or actions will often have negative effects (whether intendedor not) on individuals who do not belong to the disfavoredgroup. This does not, however, change the fact that suchlaws, policies, or actions are discriminatory when they areundertaken for the purpose of harming protected individuals.

Arlington Heights itself relies on the assumption thatoverdiscrimination is illegaL. The issue in Arlington Heightswas whether a Chicago suburb's denial of a rezoningapplication for construction of an affordable housing complexwas racially motivated. Arlington Heights, 429 U.S. at 259.Although on the facts of the case the Court held that theevidence did not support the Plaintiffs' allegations that adiscriminatory motive was at work, the Court's analysispresumed that the Plaintiffs would have prevailed if they haddemonstrated that Arlington Heights denied the rezoning

application in order to limit housing opportunities for

minorities. See id. at 270. This would have been so eventhough the racial minorities who were denied housingopportnities would not have been treated any worse than the

McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992). Thedifference between proxy discrimination and facially neutraloverdiscrimination is merely one of degree. In a case of proxydiscrimination the defendant discriminates against individuals on the basisof criteria that are almost exclusively indicators of membership in thedisfavored group. By contrast, facially neutral overdiscrimination ariseswhen the defendant. exhibits a wilingness to distinguish amongst

individuals on the basis of facially neutral criteria, knowing (butaccepting) that some individuals who are not members of the disfavoredgroup wil suffer alongside the targeted individuals.

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low-income white individuals who would also have beendeprived of the same housing opportnities.

Similarly, in Hunter v. Underwood, 471 U.S. 222 (1985),the Supreme Court unanimously struck down a provision ofthe Alabama constitution that disenfranchised individualsconvicted of crimes involving moral turpitude. The provisionwas facially neutral because it applied to persons of all races.Id. at 227. However, there was compelling evidence that theprovision was adopted at the turn of the 20th century for thepurpose of disenfranchising black voters who were convictedof such crimes at a far higher rate than white voters.

Assuming, arguendo, that the disenfranchisement provisionwould be constitutional if it were passed in modem timeswithout the intent to discriminate against racial minorities, theCourt nonetheless held that because it had been enacted for adiscriminatory purpose it "violates equal protection underArlington Heights." Id. at 233. The 1903 Alabamalegislature's willingness ( or intent) to also disenfranchisewhite individuals convicted of crimes of moral turpitude wasirrelevant; all that mattered was that the act "would not havebeen adopted. . . in the absence of the racially discriminatorymotivation.,,24 Id. at 231.

24 The City's and its amicus' reliance on United States v. 0 'Brien,

391 U.S. 367 (1968), for the proposition that courts may not invalidate alaw that was motivated by animus purely on the basis of the legislature'sintent is therefore misplaced. 0 'Brien does not apply to equal protectioncases or cases involving statutory anti-discrimination law where the verynature of the legal inquiry is whether an action taken by the legislaturewas motivated by animus. See City of Columbia v. Omni OutdoorAdvertising, Inc., 499 U.S. 365, 377 n.6 (1991) (making this point andciting Arlington Heights); see also Church of the Lukumi Babalu Aye, Inc.

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More recently, in City of Modesto, this court held thatseveral unincorporated majority-Latino neighborhoods hadcreated a triable issue of fact that they had been victims ofdisparate treatment on account of their racial composition.The communities had not been included in a tax sharingagreement between the county in which they were locatedand the City of Modesto while communities with a majority-white populations were included in the agreement. City ofModesto, 583 F.3d at 697. Neighborhoods party to theagreement were more likely to be annexed by Modesto atsome point in the future. ¡d. at 703-04. Modesto argued thatthe excluded neighborhoods could not maintain an intentionaldiscrimination claim because the excluded communities hadsignificant white populations, and those white residentswould also suffer as a result of the alleged discrimination.We rejected that argument, concluding that the relevantquestion was whether the excluded neighborhoods were

treated differently because of their overall racial composition,not whether Modesto's discriminatory actions would affectonly racial minorities. See id. at 704. In other words,

Modesto's willingness to discriminate against both minoritiesand white citizens living in majority-minority communitiesdid not cleanse it of any discriminatory intent that it may haveharbored.

Other Circuits have similarly condemned instances ofoverdiscrimination. For example, in Town of Clarkton v.NAACP, 682 F.2d 1055 (4th Cir. 1982), the Fourth Circuitheld that Clarkton had intentionally discriminated againstAfrican Americans when it withdrew from a multi-county

v. City of Hialeah, 508 U.S. 520, 535 (1993) (subjecting to heightenedscrutiny a law whose "object" was to discriminate on the basis ofreligion).

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affordable housing project in response to white residents'racially driven hostility to the project. This analysis was notchanged by the fact that the abandonment of the proj ect had"an effect touching upon all citizens" of the county. Id. at1066. Rather, because "it is the black population that willsuffer. . . in a disproportionate manner," the town's actionswere still discriminatory. Id. at 1066 (emphasis added).

Similarly, in Abdu-Brisson, the Second Circuit held that anairline could be guilty of age discrimination if it intentionallyimposed unfavorable employment conditions upon all of theemployees it inherited after its purchase of a competitorairline in order to discriminate against the portion of theinherited employees who were elderly. 239 F.3d at 467-68.

Here, the district court relied on Gamble v. City ofEscondido, 104 F.3d 300 (9th Cir. 1997); Schwarz v. City ofTreasure Island, 544 F.3d 1201 (11 th Cir. 2008); and OxfordHouse-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), inconcluding that plaintiffs in disparate treatment suits mustidentify a similarly situated entity. None of these casessupports such a proposition. In Gamble, we relied in part onthe absence of a similarly situated entity to dismiss a caseproceeding under a McDonnell Douglas theory. 104 F.3d at305. Gamble therefore has no application here. As toSchwarz and Oxford House, both cases, unlike this one,involved the enforcement of pre-existing, facially neutralzoning laws against group homes, and neither case involvedany suggestion that the zoning laws in question had beenenacted with a discriminatory purpose. Schwarz, 544 F .3d at1206-11, 1216; Oxford House-C, 77 F.3d at 252.

Accordingly, again, neither case is relevant here.

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In fact, Schwarz expressly acknowledged that its "analysismight have been different if (the group home J claimed thatthe City enacted the (zoning law J in order to discriminateagainst people with disabilities." Id. at 1217. This precisesituation arose shortly thereafter. In Caron Found. of FloridaInc. v. City of Delray Beach, 879 F.Supp. 2d 1353 (S.D. Fla.2012), a district court confronted exactly the circumstancesforeseen in Schwarz. In Caron, the City of Delray enacted azoning ordinance much like the one in Schwarz, but there wasevidence that Delray's ordinance was enacted in reaction toan increase in group homes and with the intent to discriminateagainst them. Caron, 879 F.Supp. 2d at 1361-63, 1367-70.Applying Schwarz, the district court in Caron correctly, inour view, determined that the zoning laws in question werediscriminatory in light of their apparent discriminatory

purpose. The circumstances in Caron are nearly identical tothe ones alleged in this case. See also Nevada Fair HousingCtr.v. Clark Cnty., 565 F. Supp. 2d 1178 (D. Nev. 2008).

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Had the district court applied the proper analysis underArlington Heights, it would have necessarily concluded thatthe Plaintiffs' claims survive summary judgment. Taken inthe light most favorable to the non-moving party, the

legislative history indicates that the Ordinance was enactedfor the purose of eliminating or reducing the number of

group homes throughout the City. The Plaintiffs have comeforward with statistics, provided by the City, that theOrdinance had the effect of reducing group home beds by40%. The Plaintiffs also provided evidence that group homeswere specifically targeted for enforcement.' The City createda task force to locate group homes, undertake surveillance ofthem, and enforce the zoning code strictly against them.

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After the Ordinance was enacted, every nonconforming grouphome in the City that did not apply for a use permit wasserved with an abatement notice within three days of the 90-day use permit application deadline, whereas no abatementnotices were sent to any other entities engaged in anonconforming use until the Plaintiffs pointed out thoseentities during the litigation.

All of the circumstances surrounding the enactment of theOrdinance compel the conclusion that the Plaintiffs haveraised a triable issue of fact as to whether the Ordinance wasmotivated by the desire to discriminate against the disabled.The Ordinance was designed to replace the amended

Moratorium, which the district court held to be faciallydiscriminatory because it expressly treated group homesworse than short-term lodgings. Although the Ordinance,

unlike the amended Moratorium, was facially neutral, thePlaintiffs have provided evidence that it had (and, accordingto Council Member Renn, was designed to have) the sameeffect on group homes as the Moratorium: It ensured as apractical matter that no new group homes opened in NewportBeach.

Council Member Renn also promised that the Ordinancewould reduce the number of pre-existing group homes. Atthe same meeting, Council Member Renn explained that thedrafters of the Ordinance would have preferred to simply banall group homes, but that only a facially neutral Ordinancestood any hope of surviving the anticipated legal challenge.In response to criticism from residents ,that the Ordinance wasnot a blunt enough instrument to rapidly expel group homesfrom the City, Renn urged the critics to "judge us by ouractual results." Nonetheless, because of pressure from

citizens who owned short-term lodgings, the City Council

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made the ordinance narrower than outside counsel, Goldfarb,had initially advised. Goldfarb was fired, and the finalOrdinance was drafted with the assistance of new counselwho consulted with the CCNB to develop an Ordinance thatapplied to a much narrower selection offacilities. Cf Churchof the Lukumi Babulu Aye, Inc. v. City of Hialea, 508 U.S.508,538-41 (1993) (describing as a "religious gerrander"a city's enactment of facially neutral regulations regardinganimal slaughter that had the (intended) effect of prohibitingSanteria worship, while simultaneously permitting exceptionsthat allowed other tyes of animal slaughter carried out by

more favored groups).25 In short, a jury could find, based onthe record before us, that the primary purpose of the

Ordinance was to shut down group homes and prevent newones from opening in Newport Beach, but to do so in faciallyneutral terms to avoid invalidation by a court.

26

25 Although Lukumi Babulu was a Free Exercise case, rather than a

statutory discrimination challenge under the FHA, the Court's analysis ofdiscriminatory intent in Lukumi Babulu was guided in part by theArlington Heights factors. Lukumi Babalu, 508 U.S. at 540.

26 The foregoing account of the City's legislative motive does not

examine the role that City residents' animus played in bringing about theOrdinance. Every public meeting leading up to the City Council'sultimate enactment ofthe Ordinance was marked by angry comments fromcitizens who referred to the disabled residents of the group homes as"criminals," "gang members," "drggies," "not true handicapped" andother derogatory terms. The record suggests that City Council memberswere responsive to the public's views.

It is beyond dispute that legislatues may not "defer(J to the(discriminatory J wishes or objections of some fraction of the bodypolitic." City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432,448 (1985). A jury could certainly infer from this record that privatecitizens' "hostility motivated the City in initiating and continuing itsenforcement efforts." Tsombanidis, 352 F.3d at 580; see also Metoyer v.

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A jury could also conclude that the Ordinance was

designed to eliminate group homes rather than to serve as aneutral amendment to the City's zoning laws. The Ordinanceamended the definition of "single housekeeping unit" toexclude living arrangements in which residents (1) are not allsignatories to a single written lease and (2) do not choosetheir own housemates. NBMC § 20.03.030. Thesecharacteristics subject group homes, but not vacation homes,to a more restrictive zoning regime. To be sure, theOrdinance affects adversely some other facilities that are notgroup homes. "Group residential" arrangements such as"boarding or rooming houses, dormitories, fraternities,sororities, and private residential clubs" are now completelyprohibited in residential zones. NBMC § 20.05.030(C). Therecord, however, includes evidence that this aspect of theOrdinance has been enforced against few, if any, facilities.Therefore it appears either to be the case that very few "groupresidential" facilities that were not group homes existed whenthe Ordinance was enacted, or if such facilities existed, theCity did not enforce the Ordinance against them. In eithercase, all group homes were ultimately affected by theOrdinance and few other facilities were.

Finally, the City engaged in three notable proceduralirregularities leading up to the enactment of the Ordinance.First, it created an ad hoc committee that met privately andoff the record, something the City had never done before, to

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Chasman, 504 F.3d 919, 938 (9th Cir. 2007) (noting that discriminationarises in the Title VII context when a third-part's animus "affected" thedecisionmaker) .

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PAC. SHORES PROPERTIES V. CITY OF NEWPORT BEACH 4 i

work with new counsel to draft the Ordinance.27 Second, theCity conducted a survey that was distributed primarily toindividuals opposed to group homes, to justify regulatinggroup homes differently from short-term lodgings?S Third,even prior to the Ordinance's enactment, a City task forcewas formed to work with City residents to strictly enforce thezoning code against group homes.

In short, applying the Arlington Heights factors to theevidence in this record, it is clear that the Plaintiffs have mettheir burden to create a triable issue of fact as to whether theOrdinance was enacted with a discriminatory purpose ofharming group homes and, therefore lirniting the housing

27 The Plaintiffs suggest that having committee meetings in private

violated California's open meeting law, CaL. Gov't Code § 54952.2. Thisappears to be incorrect. Section 54952.2 prohibits private meetings of a

"majority of members ofa legislative body." ¡d. The ad hoc committeehad three members, whereas the Newport Beach City Council appears tohave seven members (one of whom serves as Mayor). Seehtt://ww.newportbeachca.gov/index.aspx?page=74 (last visited Oct. 27,2012).

28 The City did not rely on objective measures, such as the number of

formal police complaints about activities at group homes, as a basis forenacting the Ordinance. In fact, a memo from Goldfarb states thatvacation homes generate more calls to the police than group homes, anda letter submitted to the City by a group home that is not a plaintiff hereprovided statistics showing that its facility had generated fewer calls forservice than other residential units on the same block and fewer calls forservice than had been the case at the same property prior to the openingof the group home.

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options available to disabled individuals recovering fromaddiction.29

D

The City argues that the Plaintiffs cannot show that theysuffered any adverse effects as a result of its actions, even ifthose actions were motivated by discriminatory intent,because, on appeal, the Group Homes have not challenged theCity's denial of their individual permit applications. The Cityfails to appreciate that it was the imposition of the Ordinanceitself that triggered the Plaintiffs' alleged injuries. We haverecognized that it is unlawful discrimination to subject

individuals to "the rigors of the governental oradministrative process. . . with an intent to biirden, hinder, orpunish them by reason of their (membership in a protectedclass.)" Flores v. Pierce, 617 F.2d 1396, 1391 (9th Cir.1980) (Kennedy, 1.), cert. denied, 449 U.S. 875 (1980).

That is what is alleged to have happened here. Prior tothe Ordinance, group homes were classified as singlehousekeeping units and therefore were able to operate freelyin residential zones, subject only to the restrictions thatgoverned other residences. After the Ordinance's enactment,however, every group home was required to submit a detailedapplication for a special use permit and/or reasonable

accommodation in order to continue operating and to attend

29 For similar reasons, we also agree with the Plaintiffs that they created

a triable issue of fact with respect to their discriminatory enforcementclaims. The evidence that the Ordinance was enacted with discriminatoryintent also provides support for the Plaintiffs' claim that the City'senforcement strategy was similarly calculated to accomplish adiscriminatory goal, as does the City's actual enforcement strategy.

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PAC. SHORES PROPERTffS V. CITY OF NEWPORT BEACH 43

public hearings at which those applications were subjected topublic comment,30 Subjecting an entity protected by anti-discrimination laws to a permit or registration requirement,when the requirement is imposed for a discriminatorypurpose, has obvious adverse impacts upon that entity, andbeing forced to submit to such a regime is sufficient toestablish injury in a disparate treatment claim. See Flores,617 F.2d at 1391. This would be true even if such permitswere granted freely, which is decidedly not the case here.

Plaintiffs have introduced evidence that the Ordinancehad at least two kinds of adverse effects upon them, either ofwhich would be sufficient to allow them to maintain an actionunder the FHA or ADA. First, the unrebutted evidence showsthat the Group Homes expended substantial time, effort, andresources applying for special use permits and reasonableaccommodations, none of which would have been necessaryhad the Ordinance not been enacted. See, e.g., Walker,272 F.3d at 1124-25 (staff time spent responding tointentionally discriminatory actions by a municipality is aninjury sufficient to confer standing under the FHA andFEHA). Second, Plaintiffs have produced evidence that theOrdinance led to the closure of approximately one third of theCity's Group Homes and barred new group homes from beingestablished in all but multi-family residential zones. Thisresulted in a reduced diversity of housing options for thedisabled individuals served by group homes. See Olmstead

30 Although the reasonable accommodation process ostensibly allowed

exceptions to the City's zoning policy that would be consistent with stateand federal anti-discrimination laws, it was as complex, time-consuming,and restrictive as the special use permit process. Compare NBMCChapter 20.91A (use permit application process), with NBMC Chapter20.98 (reasonable accommodation application process).

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v. L.C. ex reo Zimring, 527 U.S. 581, 599-600 (1999)

(recognizing that segregation of the disabled is an injury

protected by the ADA). For these reasons, the City's waiverargument based upon the fact that the Group Homes nolonger challenge the City's denial of their permit applicationsis irrelevant. The Plaintiffs show they were harmed by theiinposition of the discriminatory permit regime, and this ismore than sufficient for them to maintain a claim fordisparate treatment based upon the imposition of the permitrequirement itself.31

The City's argument that the Plaintiffs cannot usestatistical evidence to demonstrate that the Ordinancediscriminated against them simply because they voluntarilydismissed their disparate impact claims is also unavailing.First, the City misdescribes the posture of this case. ThePlaintiffs voluntarily dismissed their claim to injunctive reliefunder a disparate impact theory, but. did not dismiss theirclaims to damages under that theory. Those damages claimswere dismissed by the district court in the second summaryjudgment order relating to damages, and the Plaintiffs haveappealed that ruling. Second, even if the Plaintiffs hadwaived their disparate impact claims in their entirety, the City

31 The City's argument as to Pacific Shores is slightly different, but

equally without merit. According to the City, Pacific Shores did not sufferany adverse effects as a result of the Ordinance because it was granted areasonable accommodation for twelve beds. This argument suffers fromthe same defect: the very requirement to apply for a reasonable

accommodation adversely affected Pacific Shores. Just as plaintiffs in adiscrimination action need not have applied for a permt in order to allegethat a permit requirement is discriminatory, see City of Modesto, 583 F.3d

at 705 n. 7, so too may plaintiffs challenge a discriminatory permit regimeeven if they begrudgingly apply for a permit in order to minimize the harmthey suffer under that regime.

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is plainly wrong that their waiver of those claims wouldprevent them from using statistical evidence that also wouldhave been helpful to prove disparate impact to demonstratediscriminatory intent. See Arlington Heights, 429 U.S. at 265

(noting that disparate impact "is not irrelevant" to provingintentional discrimination); Metoyer v. Chassman, 504 F.3d919, 937 (9th Cir. 2007) (discriminatory acts towards thirdparties may be used to show actions taken against the plaintiffwere iTIotivated by discrimination); Lowe, 775 F.2d at 1008

(9th Cir. 1985) (statistical evidence can be used to showdisparate treatment); Costa, 299 F.3d at 860 (noting thatmotive can "in some situations be inferred from the mere factof differences in treatment" (internal quotation marIes

omitted)). A single piece of evidence can support multiple

theories of liability. Thus, all of the City's waiver argumentsfaiL.

II

Finally, we tum to the district court's second summaryjudgiTIent order, in which it dismissed all of the Plaintiffs'claims for damages on the ground that they "cannot establishthat any action taken by the City was the actual and

proximate cause" of any economic harm suffered by thePlaintiffs. The Group Homes argue that they submittedsufficient evidence to survive summary judgment withrespect to whether the City caused them to incur threeseparate categories of damages: (1) costs of complying withthe Ordinance, i.e., diverted staff time and legal expenses; (2)lost income as a result of the business climate resulting fromthe Ordinance; and (3) costs associated with counteracting theimpression that the Group Homes were being shut down bythe City. In addition, the individual Plaintiffs argue that theycreated a triable issue of fact as to whether they suffered

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compensable emotion distress. Because most of the Plaintiffs

created a triable issue of fact regarding each tye of damage,we reverse, except with respect to the district court'sdetermination that Bridgeman failed to create a triable issueof fact as to whether she suffered compensable emotionaldistress.

A

The Group Homes' respective managers provided sworndeclarations indicating that hundreds of hours of their owntime and their staffs' time was diverted to preparing thecomplex applications necessary to request a use permit and/orreasonable accommodation. Each of the Group Homes alsoexpended significant legal fees preparing its applications andchallenging the denials of those applications to the City

CounciL. These expenditures were plainly caused by theenactment and enforcement of the Ordinance, and they are

recoverable.

Diverted staff time is a compensable injury. See Walker,272 F.3d at 1124-25; see also Convoy Co. v. Sperry RandCorp., 672 F.2d 781, 785-86 (9th Cir. 1982); cf FairHousing of Marin v. Combs, 285 F.3d 899, 903-04 (9th Cir.2002) (holding that an organizational plaintiff suffered injurysufficient to confer Article III standing where it diverted staffresources to combating FHA violations). As we explained inConvoy Company, "(t)he issue is not whether (the Plaintiffs)would have paid the (employees') salaries" absent thedefendant's wrongdoing, but, rather, whether the Plaintiffswere "deprived of the services (they) paid for" because of theneed for the employees to divert their attention to minimizethe damage from the defendant's misconduct. 672 F.2d at785. The staff time spent preparing and presenting permit

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PAC. SHORES PROPERTIES V. CiTY OF NEWPORT BEACH 47

applications under the Ordinance would have otherwise beenspent promoting the Group Homes' business and serving theirresidents. This diversion of time therefore represents a loss

for which the Group Homes may recover. Walker, 272 F.3dat 1124-25.

The Group Homes may also recover the legal costs theyspent preparing their permit and reasonable use applicationsand presenting those applications before City hearing officersand the City CounciL. The district court's conclusion thatsuch costs were "better resolved" through an application forattorney's fees was, therefore, erroneous. We have held thatattorney's fees may be recovered as damages in a civil rightsaction where the fees were necessary to obtain a permit in aproceeding that only occurred as a result of city officials'discriminatory animus. See Flores, 617 F.2d at 1392 (9th Cir.1980); accord Sherwin Manor Nursing etr. v. McAulife,37 F.3d 1216, 1221-22 (7th Cir. 1994). In Flores, Judge(now Justice) Kennedy upheld an award of attorney's fees, asdamages, to § 1983 plaintiffs for the legal services necessaryto combat the city's challenge to the plaintiffs' liquor licenseapplication where city officials had deliberately delayed theapplication because of racial animus. 617 F.2d at 1388, 1392;see also Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir.1991) (holding that a § 1983 plaintiff could recover attorney'sfees as damages where those fees were incurred defendingagainst criminal charges that directly resulted from thedefendant police officer's wrongful arrest of the plaintiff).Just as the plaintiffs in Flores and Barlow were entitled toattorneys fees spent combating wrongfully instituted legalproceedings, so too may the Group Homes here recover theattorney's fees necessary to comply with the use permitrequirement that the City imposed for an allegedlydiscriminatory reason.

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B

The district court acknowledged that the Group Homesexperienced a dramatic decline in business shortly after theenactment of the Ordinance. It found, however, that thePlaintiffs did not adequately raise a triable issue of fact as towhether the City's actions caused these business losses. Inreaching this determination, the district court misappliedwell-established principles of causation and failed to drawevery inference in the Group Homes' favor, as it was requiredto do at the summary judgment stage.

We begin with the principle that a "damages action underthe FHA sounds basically in tort-the statute merely definesa new legal duty, and authorizes the courts to compensate aplaintiff for the injury caused by the defendant's wrongfulbreach." Garcia v. Brockway, 526 F.3d 456, 464 (9th Cir.2008) (en banc) (brackets omitted) (quoting Curtis v. Loether,415 U.S. 189, 195 (1974)); see also Henrietta D v.Bloomberg, 331 F.3d 261,278-79 (2d Cir. 2003) (applyingcommon law tort principles of causation to the ADA).Accordingly, general tort principles of causation usuallygovern statutory discrimination cases except when there is astatutory command to the contrary. See, e.g., Silver SagePartnersv. City of Desert Hot Springs, 251 F.3d814, 819-21,

824-25 (9th Cir. 2001) (applying general tort principles to thecalculation of damages under the FHA); Samaritan Inns, Inc.v. District of Columbia, 114 F.3d 1227, 1234-35 (D.C. Cir.1997) (same).

At tort, plaintiffs bear the burden of demonstrating thatthe defendant's conduct caused some harm suffered by theplaintiffs. However, the plaintiffs are "not required toeliminate entirely all possibility that the defendant's conduct

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was not a cause. It is enough that (they) introducer) evidencefrom which reasonable men may conclude that it is moreprobable that the event was caused by the defendant than thatit is not." Restatement (Second) of Torts § 433B, cmt. b(1965) (hereinafter "Restatement"). Moreover, "(t)heplaintiff doesn't have to prove a series of negatives; hedoesn't have to 'offer evidence which positively excludes(s)every other possible cause of the accident.'" BCS Servs., Inc.v. Heartwood 88, LLC, 637 F.3d 750, 757 (7th Cir. 2011)(quoting Carlson v. Chisholm-Moore Hoist Corp., 281 F.2d766, 770 (2d Cir. 1960) (Friendly, J.)), cert. denied,132 S. Ct. 253 (2011). Rather, plaintiffs can demonstrate

. causation by proving that the defendant's wrongful conductwas a "substantial factor" in bringing about the harm inquestion. Restatement § 431(a); see also Benefiel v. ExxonCorp., 959 F.2d 805, 807 (9th Cir. 1992) (describing the"substantial factor" test as a "uniformly accepted principle()of tort law"). The doctrine of proximate cause serves merelyto protect defendants from unforeseeable results of theirnegligence when "too many unexpected things (have)happen( ed) between the defendant's wrongdoing and theplaintiffs injury."32 BCS Services, 637 F.3d at 754.

32 The fact that FHA plaintiffs' injuries must be proximately caused by

the defendant's discrimiatory acts does not, of course, mean that

defendants are not liable for foreseeable, but indirect, effects ofdiscrimiation. For example, in Silver Sage we held that a city thatwrongfully withheld its approval of a fair housing project could be heldliable not just to the developers ofthe project for their lost profits, but alsoto a real estate broker and a businessman who, respectively, did notreceive broker's fees and syndication fees that would have been paid hadthe project gone forward. 251 F.3d at 822-23; see also San Pedro HotelCo., 159 F.3d at 475.

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Causation is an intensely factual question that shouldtypically be resolved by a jury. See, e.g., White v. Roper,

901 F.2d 1501, 1505-06 (9th Cir. 1990) (citing W. Prosser &W. Keeton, The Law of Torts, §§ 41, 42, 45 (5th ed. 1984));

Restatement § 434(2). Juries are expected to rely on theircommon sense in resolving questions of causation. Indeed,it is jurors' "common experience of living on a populatedplanet" that renders them at least as reliable, if not more so,than a single judge at assessing issues of causation. David W.Robertson, The Common Sense of Cause In Fact, 75 Tex. L.Rev. 1765, 1769 (1997). As the Seventh Circuit hasrecognized, "(0 Jnce a plaintiff presents evidence that hesuffered the sort of injury that would be the expectedconsequence of the defendant's wrongful conduct, he hasdone enough to withstand summary judginent on the groundof absence of causation." BCS Services, 637 F.3d at 758.Contrary to the Plaintiffs' suggestion, these principles are nota matter of burdenshifting-plaintiffs always bear the burden

of proving that the defendant's actions caused their

injuries-but rather a simple recognition that making

reasonable inferences about causation is one of the things thatjuries do best.

We applied these principles in Mead v. Retail Clerks IntlAssoc., Local Union No. 839,523 F.2d 1371 (9th Cir. 1975),when we held that a trier of fact could infer that a union'sillegal strike had "materially contributed" to the employer'slost sales (and therefore was a substantial factor in bringingthe loss about) because the "injury alleged. . . was preciselythe type of loss that the claimed violations. . . would be likelyto cause." Id. at 1378 (quoting Zenith Radio Corp. v.Hazeltine Research, Inc., 395 U.S. 100, 125 (1969)). Thiswas so even though the union, much like the City in this case,argued that it was equally likely that the lost sales were

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attributable to adverse business conditions and negativepublicity regarding the employer's labor practices. ¡d. at1376.

Although Mead drew this principle from cases arising inthe anti -trust context, we reco gnized that these anti -trust casesmerely "incorporat( e J common law principles of causation,"albeit with appropriate modifications. ¡d. Further, just as in.Mead, here, there is "an exact parallel between the problemfaced by a plaintiff attempting to show that lost profitsresulted from anti-competitive activity rather than from otherfactors affecting the business," and the problem faced by theGroup hOlnes in attempting to prove that their losses werecaused by the defendant's alleged intentional discrimination.¡d. at 1378. In both kinds of cases, "damage issues. . . arerarely susceptible of the kind of concrete, detailed proof ofinjury which is available in other contexts." ¡d. at 1377

(quoting Zenith Radio Corp., 395 U.S. at 123.)

Here, as in Mead, we ask not whether the Group Homeshave proven that all of their business losses were attributableto the Ordinance's enactment and enforcement, but rather, weexamine whether they created a triable issue of fact that theCity's actions "materially contributed" to these losses.Although the City and the district court are correct that theGroup Homes did not submit declarations from particularresidents stating that they left because of the City's actions,there was no requirement that they do so. Drawing allinferences in the Group Homes' favor as we are required todo, we conclude that they submitted ample evidence that theCity contributed to their losses.

Just like the employer in Mead, the Group Homessubmitted evidence that their business declined and that the

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resulting losses were both a predictable, and desired, result ofthe City's actions. The Group Homes' managers stated thatthey attract new residents primarily through referrals fromcare providers and their websites. There was evidence thatboth referral sources were affected by the Ordinance. TheCity's enforcement of the Ordinance was widely publicizedin the care provider community and "(fJew counselors andtherapists wanted to refer their clients to (the Group HomesJbecause of the City's actions" as a result. NCR's managerdescribed its referrals as "dr(yingl up completely" after theCity's second denial of its permit application. The managersalso explained that "our internet presence was drowned outby other web pages concerning the City's actions." Inaddition, current and prospective residents expressed concernto the managers about whether the Group Homes wouldclose. A jury could infer from these facts that prospectiveresidents were not referred to or deliberately stayed awayfrom the Group Homes, and opted to reside elsewhere, as aresult of the Ordinance's enactment and enforcement, withouthearing any particular individual testify that he did so.

Indeed, prior to taking the opposite stance in litigation,city officials themselves credited the Ordinance with harminggroup homes. At a public meeting, Kiff stated that theOrdinance had been responsible for a reduction in bed countsof as much as 40% and described it as a key step to"bring(ingJ owner-occupied back." In enacting the

Ordinance, Council Member Henn promised City residentsthat it would "result in a substantial reduction in the

number of group homes on the Peninsula" and asked to be"judge(dJ . . . by our actual results."

Each of the Group Homes presented evidence that itexperienced a precipitous decline in business after the

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passage of the Ordinance. Yellowstone'8 revenues declinedover 50% between 2007 and 2009. NCR's dropped over 40%between 2007 and 2008; it closed in 2009 due to insufficientbusiness.33 Pacific Shores' business also declined nearly 50%in 2008. Furthermore, it served fewer residents than itotherwise would have due to the i 2-bed occupancy limitationit accepted in order to secure approval of its reasonable

accommodation application.34

In sum, a jury could easily infer that the City's actionsmaterially contributed to the Group HOlnes' losses. Themanagers all stated that the Ordinance's enactment andenforcement led to reduced referrals, evidence showed thatclosing group homes was one of the Ordinance's primarygoals, and the Group Homes' revenues plummeted in theimmediate aftermath of the Ordinance's enactment.

This conclusion is not altered by the fact that some of thenegative publicity about the Group Homes, which may havecontributed to their business losses, was generated by theCCNB and other third-part sources. At least some of thenegative publicity that allegedly harmed the Group Homes'

33 The City also argues that because NCR's permit application was not

finally denied until January 2009, it could not have suffered any lossesprior to that time. This argument is simply wrong. A jury could certainlyconclude that the threat of eventual closure contributed to NCR's declinein business even prior to the final denial of its permit application.

34 There is no merit to the City's contention that these losses are not

recoverable because Pacific Shores itself requested the 12-bed limitation.This argument disregards the fact that Pacific Shores' request for a 12-bedlimitation was a result of the Hearing Officer's two prior denials of itsrequest for an 18-bed reasonable accommodation. In any event, as wehave already explained, no such limitation would have applied if the Cityhad not adopted the Ordinance in the first place.

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businesses was generated by the City itself, including on itsown website and in a letter circulated to all residents ofNewport Beach. In addition, the press coverage from third-party sources was a foreseeable result of the enactment andenforcement of the Ordinance, and therefore a jury could findthat it was proximately caused by the City. See Restatement§§ 431,440,441, 442A; see also Farr v. NC Mach. Co.,186 F.3d 1165, 1169-70 (9th Cir. 1999) (applying theRestatement); Johnson v. Duff, 588 F.2d 740, 743-44 (9thCir. 1978). In other words, the Group Homes have producedsufficient evidence that "the (discriminatory J policy at issueand the particular injury alleged are not only closely related,they are cause and effect." Harper v. City of Los Angeles,

533 F.3d 1010, 1027 (9th Cir. 2008) (internal quotation marksand citation omitted).

Given that a jury could conclude that the City materiallycontributed to the Group Homes' decline in business, theGroup Homes were not obligated to prove their losses withprecision. As the Supreme Court has explained:

Where the tort itself is of such a nature as topreclude the ascertainment of the amount ofdamages with certainty it would be aperversion of fundamental principles ofjustice to deny all relief to the injured person,and thereby relieve the wrongdoer frommaking any amend for his acts. In such case,while the damages may not be determined bymere speculation or guess, it will be enough ifthe evidence show the extent of the damagesas a matter of just and reasonable inference,although the result be only approximate.

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PAC. SHORES PROPERTffS V. CITY OF NEWPORT BEACH 55

Story Parchment Co. v. Paterson Parchment Paper Co.,282 U.S. 555, 563 (1931); see BCS Services, 637 F.3d at 759.The City argues that this principle is confined to the anti-trustcontext, but this view is undermined by cases from this courtand others. The D.C. Circuit has described Story Parchmentas a "seminal" case that "states the Ainerican rule ondamages," Hill v. Iraq, 328 F.3d 680, 684 (D.C. Cir. 2003),and it has been relied on to lower plaintiffs' burden of proofregarding the quantum of damages in FHA cases, see SilverSage, 251 F.3d at 820 n.6; Samaritan, 114 F.3d at 1235, andin countless other statutory tort-like contexts. See, e.g., Hill,328 F.3d at 684 (Foreign Sovereign Immunities Act); FidelityInterior Const., Inc. v. S.E. Carpenters Reg'l Council ofUnited Bhd. of Carpenters and Joiners, 675 F.3d 1250,

1264-65 (lIth Cir. 2012) (Labor Management Relations

Act); Comcast of Illinois X v. Multi- Vision Elec., Inc.,491 F.3d 938, 947 (8th Cir. 2007) (Cable CommunicationsPolicy Act); Yonkers Branch-NA.A.C.P. v. City of Yonkers,251 F.3d 31,40 (2d Cir. 2001) (apportionment of liability indesegregation funding order); Adray v. A dry-Mart, Inc.,76 F.3d 984, 988-89 (9th Cir. 1995) (trademark

infringement); Starceski v. Westinghouse Elec. Corp., 54 F.3 d

1089, 1100-01 (3d Cir. 1995) (employment discriminationunder the Age Discrimination in Employment Act); Brock v.Seto, 790 F.2d 1446, 1448 (9th Cir. 1986) (Fair LaborStandards Act). Because the Group Hoines submitted ampleevidence from which a jury could infer that they lost somebusiness as a result of the Ordinance, a jury would be entitledto determine the precise quantum of damages by drawing"just and reasonable" inferences from the evidence, given thatthe City's enactment of the Ordinance was an act that"preclude

( dJ the ascertainment" of what portion of the Group

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Homes' decline in business was attributable to other causes.35Story Parchment, 282 U.S. at 563; see, e.g., Gilchrist v. JimSlemons Imports, Inc., 803 F.2d 1488, 1501 (9th Cir. 1986)(holding that a jury reasonably estimated a terminated

employee's lost commissions by relying on the commissionshe earned the previous year, even though that year had beenabnormally profitable).

c

F or similar reasons, the Group Homes also created atriable issue of fact regarding causation as to the expensesthey incurred contacting referral sources and advertising tocombat the widespread impression that the City was forcingthem to close. The Group Homes' managers each testifiedthat they expended substantial amounts of time combating theperception that they were on the verge of closure. As weexplained above, diverted staff time is a compensable harmunder the FHA and ADA. As to causation, the managersthemselves explained that their promotional efforts were notundertaken because of a general, unexplained, drop inbusiness, but rather because their referral sources were

concerned whether they could remain open and provide ahealthy atmosphere as a result of the Ordinance. Similarly,Pacific Shores increased its advertising expenditures in 2008for the purpose of "inform(ingJ the public that its NewportBeach houses were open and provided a safe place for soberliving." In addition, Pacific Shores and NCR each hired aweb consultant to assist them with promoting their presenceon the internet because publicity surrounding the City's

35 The City, of course, would be free at trial to present proof to the jury

that a significant portion of the Group Homes' losses were attributable toother causes such as the downtu in the economy.

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enforcement efforts appeared proininently in response tointernet searches. The Group Homes' managers' testimony,which a reasonable jury could certainly credit, creates atriable issue of fact as to whether these expenses wereincurred as a result of the Ordinance and the district courtclearly erred in concluding otherwise.

D

Finally, the individual Plaintiffs also challenge the districtcourt's disinissal of their damages claims for emotionaldistress. Damages are available under the FHA for anyunusual level of anxiety, embarrassment, or humiliation

suffered by plaintiffs as a result of a defendant's

discriminatory actions, and a plaintiff s testimony Íssufficient to create a triable issue of fact as to such emotionaldistress. See 24 C.F.R. § 180.670(b)(3)(i) (HUD regulationsrecognizing availability of damages for "humiliation andembarrassment"); see also Krueger v. Cuomo, 115 F.3d 487,492 (7th Cir. 1997) (tenant's testimony sufficient to establishFHA lìability for emotional distress where her landlord'sdiscriminatory actions made her "feel 'real dirt,' 'like a badperson,' and 'scared' her"); Banai v. Sec'y ofHUD, 102 F.3d1203, 1207 (lIth Cir. 1997) (damages "clearly" availableunder FHA for "anger, embarrassment, and emotionaldistress" suffered by spumed tenant); Morgan v. Sec'y ofHUD, 985 F.2d 1451, .1459 (lOth Cir. 1993) (damagesavailable under FHA for any emotional distress "whichexceeds the normal transient and trivial aggravation attendantto securing suitable housing"); cf Phifer v. Proud ParrotMotor Hotel, Inc., 648 F.2d 548, 552-53 (9th Cir. 1980)

(damages available to § 1982 plaintiff for "humiliation anddistress" resulting from landlord's discriminatory refusal torent coinmercial space).

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58 PAC. SHORES PROPERTffS V. CITY OF NEWPORT BEACH

Wiseman, a resident at Pacific Shores, testified at hisdeposition that he experienced anxiety as a result of PacificShores' potential closure. The anxiety was sufficiently acutethat he visited a doctor and was prescribed medication tomanage his symptoms. This testimony created a triable issueof fact as to whether he suffered compensable emotional

distress. The City argues that Wiseman waived his damagesclaim based on statements made at his deposition that he didnot believe the City owed him damages. In context, thosestatements constitute an expression of Wi seman ' s resentmenttowards the City rather than a "voluntary, deliberate, and

informed" declaration of waiver. See Stroman v. West Coast

Grocery Co., 884 F.2d 458,462 (9th Cir. i 989) (recognizingthat waivers of civil rights claims must be "voluntary,

deliberate, and informed" (citation omitted)).I

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We agree with the district court, however, that Bridgemandid not create a triable issue of fact as to whether she sufferedcompensable emotional distress. Bridgeman-a resident atPacific Shores-stated only that she was "kind of upset"about the possible closure of Pacific Shores. However, shealso stated that she did not feel any stress as a result.Although an FHA plaintiff can certainly recover for distress,even if that distress does not physically manifest itself ornecessitate pscyhological counseling, Bridgeman's mildannoyance at the Ordinance is insufficient to support a claimfor emotional distress damages.

CONCLUSION

For the foregoing reasons we reverse the district court'sdismissal of the Plaintiffs' disparate treatment claims. ThePlaintiffs have created a triable issue of fact that theOrdinance was enacted in order to discriminate against them

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on the basis of disability, and that its enactment and

enforcement harmed them. We also reverse the districtcourt's dismissal of all of the Plaintiffs' damages claiins,except for its dismissal of Terri Bridgeman's claim foremotional distress.

REVERSED AND REMANDED.

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Attachment C: Costa Mesa Ordinance

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ORDINANCE NO. 14-13

AN ORDINANCE OF THE CITY COUNCIL OF THECITY OF COSTA MESA AMENDING SECTION 13-6(DEFINITIONS) OF ARTICLE 2 (DEFINITIONS) OFCHAPTER I (GENERAL), ADDING CHAPTER XV(GROUP HOMES), AND REPEALING ANDREPLACING ARTICLE 15 (REASONABLEACCOMMODATIONS) OF CHAPTER IX (SPECIALLAND USE REGULATIONS), OF TITLE 13 (ZONINGCODE) AND AMENDING THE CITY OF COSTAMESA LAND USE MATRIX - TABLE NO. 13-30 OFCHAPTER IV. (CITYWIDE LAND USE MATRIX) OFTHE COSTA MESA MUNICIPAL CODE RELATINGTO GROUP HOMES

THE CITY COUNCil OF THE CITY OF COSTA MESA MAKES THEFOllOWING FINDINGS WITH RESPECT TO THE ADOPTION OF THEFOllOWING ORDINANCE:

WHEREAS, under the California Constitution, Article XL, Section 7, theCity has been. granted broad police powers. to preserve the single-familycharacteristics of its single-family neighborhoods, which powers have beenrecognized by both the California Supreme Court arid United States SupremeCourt, the latter of which has stated that, "'It is within the power of the legislature todetermine that the community should be beautiful as well as healthy, spacious aswell as clean, well-balanced as well as carefully patrolled"; and

WHEREAS, both the California Supreme Court and United StatesSupreme Court have held that cities have the right to regulate both the number ofpeople who may reside in asingle family home and the manner in which the singlefamily is used as long as such regulations do not unfairly discriminate or impair anindividual's rights of privacy and association; and

WHEREAS, individuals and families often purchase homes in single-family neighborhoods for the relative tranquility and safety that often accompaniessuch neighborhoods and with the expectation of establishing close and long-standing ties with their neighbors; and

WHEREAS, with these expectations, individuals and families commit tomaking what will be, for most of them, the single largest financial investment oftheir lives, as well as one of the most significant emotional investments; and

WHEREAS, the Federal Fair Housing Act Amendments ("FHAA") and theCalifornia Fair Employment Housing Act ("FEHA") prohibit enforcement of zoning

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ordinances which would on their face or have the effect of discriminating againstequal housing opportunities for the handicapped; and

WHEREAS, a core purpose of the FHAA, FEHA and California's LantermanAct is to provide a broader range of housing opportunities to the handicapped; tofree the handicapped, to the extent possible, from institutional style living; and toensure that handicapped persons have the opportunity to live in normal residentialsurroundings and use and enjoy a dwelling in a manner similar to the way adwelling is enjoyed by the non-handicapped; and

WHEREAS, to fulfil this purpose the FHAA and FEHA also require that theCity provide reasonable accommodation to its zoning ordinances if suchaccommodation is necessary to afford a handicapped person an equal opportunityto use and enjoy a dwelling; and

WHEREAS, the Lanterman Act fulfills this purpose in part by requiring citiesto treat state licensed residential care facilities serving six or fewer as a residentialuse; and

'WHEREAS, in enacting this Ordinance the City Council of the City of CostaMesa is attempting to strike a balance between the City's and residents' interestsof preserving the single family characteristics of single-family neighborhoods andto provide opporturiities for the handicapped to reside in single-family R1 zonesthat are enjoyed by the non-handicapped; and

WHEREAS, over the past several years the City, County and State haveseen a significant increase in the number of single-family homes being utilized asalcohol and drug recovery faciliies for large numbers of individuals (hereafter,"sober living homes"); and

WHEREAS, the increase appears to be driven in part by the SubstanceAbuse and Crime Prevention Act of 2000 (hereafter, "the Act") adopted byCalifornia voters which provides that specified first-time drug and alcohol offendersare to be afforded the opportunity to receive substance abuse treatment ratherthan incarceration; and

WHEREAS, the Affordable Care. Act has significantly expanded theavailability of health care coverage for substance abuse treatment; and

WHEREAS, the City of Costa Mesa has seen a sharp increase of soberliving homes, which has generated community outcry and complaints including,but not limited to overcrowding, inordinate amounts of second-hand smoke, andnoise; and the clustering of sober living facilities in close proximity to each othercreating near neighborhoods of sober living homes; and

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WHEREAS, this significant increase in sober living homes has become anrising concern for cities statewide as local offcials are in some cases beingbombarded with complaints from residents about the proliferation of sober livinghomes; conferences drawing local officials from around the state are being helddiscussing what to do about the problems associated with sober living homes; ithas been the topic of several League of California Cities meetings; there havebeen numerous city-sponsored attempts at legislative fixes that have failed incommittee; and litigation is spreading across the state as cities attempt to addressthe problem; and

WHEREAS, as of the date of adoption of this Ordinance, it is estimated thatthe City of Costa Mesa is home to 1,214 alcohol and drug recovery beds, dividedas follows: 40 licensed residential facilities/certified alcohol and drug programs inresidential zones, providing 398 beds; 94 unlicensed sober living homes inresidential zones, providing 740 beds; and 1 sober living home on two separateparcels, providing 76 beds in a non-residential zone; and 28 nonresidential

services facilities, providing support services such as administrative offices,therapy etc.; and

WHEREAS, the number of sober living homes in the City of Costa Mesa israpidly increasing, leading to an overconcentration of sober living homes in theCity's R1 neighborhoods, which is both deleterious to the single-family characterof the R1 neighborhoods and may also lead to the institutionalization of suchneighborhoods; and

WHEREAS, the purpose of sober living homes is to provide a comfortableliving environment for persons with drug or alcohol addictions in which they remainclean and sober and can participate in a recovery program in a residential,community environment, and so that they have the opportunity to reside in the

. single family neighborhood of their choice; and

WHEREAS, recovering alcoholics and drug addicts, who are not currentlyusing alcohol or drugs, are considered handicapped under both the FHAA andFEHA; and

WHEREAS, concentrations of sober living homes and/or the placement ofinordinately large numbers of recovering addicts in a single dwelling canundermine the benefits of home ownership in single-family neighborhoods forthose residing nearby and undermine the single-family characteristics ofneighborhoods; and

WHEREAS, in some cases, operators of sober living homes have attemptedto house inordinately large numbers of recovering addicts in a single-familydwelling in Costa Mesa; for example, in one case an operator has placed 15 bedsin a single-family home; and there has been a tendency for sober living homes to

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congregate in close proximity (for example, five sober living homes are locatednext to each other on one street in a R 1 zone); and

WHEREAS, the City has experienced situations in which single-familyhomes are remodeled to convert common areas such as family rooms, dressingrooms, and garages into bedrooms (in one case a patio was converted to a roomwhere 6 beds were found) or to add multiple bedrooms for the sole purpose ofhousing large numbers of recovering addicts in a single dwelling; and

WHEREAS, it has been the City's experience that most, if not all, operatorsof sober living homes have taken the stance that the FHAA and FEHA prohibit theCity from regulating them in any fashion, that they are free to house as manyrecovering addicts in a single home as they desire, and that they are not requiredto make any showing to obtain an accommodation from the City's zoningordinances, which allow a sober living home to house up to six recovering addictsas a matter of right; and

WHEREAS, based on the City's experience it has become clear that atleastsome operators of sober living homes are driven more by a motivation to profitrather than to provide a comfortable living environment in which recovering addictshave a realistic potential of recovery, or to provide a living environment whichremotely resembles the manner in which the non-disabled use and enjoy adwelling; and

WHEREAS, this Ordinance and the balance of the City's zoning schemehave built in an accommodation for group homes to locate in the R1 neighborhoodsas long as they are serving six or fewer tenants, whereas a similarly situated andfunctioning home with non-handicapped tenants would be defined as a boardinghouse and only be allowed three residents; and

WHEREAS, this Ordinance will provide a mechanism for a group home toseek additional accommodation above the six residents upon making a showing,as required by state and federal law, that such additional accommodation is

reasonably necessary to afford the handicapped the right to use and. enjoy adwelling in a manner similar to that enjoyed by the non-handicapped; and

WHEREAS, permitting six or fewer residents in a sober living home andestablishing distance requirements is reasonable and non-discriminatory and notonly helps preserve the single family characteristic of single family neighborhoods,but also furthers the purpose for which sober living homes are established: (1)theState legislature in establishing licensed residential care facilities as a residentialuse, including group homes serving recovering addicts, found that six residentswas a sufficient number to provide the supportive living environment that expertsagree is beneficial to recovery; (2) Group Homes serving six or fewer have existedand flourished in the State for decades and there has been no significant efforts orsuggestions to increase the number; (3) the City has received expert testimony

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stating that six is a reasonable number for a sober living facility and is sufficient toprovide the supportive living environment that is beneficial to recovery and thatlarger numbers can actually reduce the chances of recovery; (4) a 2005 UCLAstudy found that 65-70% of recovering addicts do not finish the recovery programsinto which they are placed and a comfortable living environment is a factor inwhether recovering addicts wil finish their programs; (5) drug and alcohol addictionis known to affect all income levels and there is no evidence in the record thatindividuals residing in sober living homes are financially unable to pay market raterents and certainly the experience in the City of Newport Beach, where rents andproperty are among the most expensive in Orange County, is evidence that suchaddiction has a profound effect on the wealthy; (6) in any event, receiving rent fromup to six individuals wil provide sufficient income for operators of sober livinghomes and result in revenue which is well above market rate rents; (7) theevidence inthe record indicates that in general operators of sober living homes donotincur significant costs over and above what landlords of other similarly-situated. homes may incur; and (8) limiting the number of recovering addicts that can be

placed in a single-family home enhances the potential for their recovery; and

WHEREAS, sober living homes do not function as a single-family unit nordo they fit the City's zoning definition of a single-family for the following reasons:(1) they house extremely transient populations (programs are generally about 90days and as noted, the 2005 UCLA study found that 65-70% of recovering addictsdon't finish their recovery programs); (2) the residents generally have noestablished ties to each other when they move in and typically do not mingle withother neighbors; (3) neighbors generally do not know who or who does not residein the home; (4) the residents have little to no say about who lives or doesn't livein the homè; (5) the residents do not generally share expenses; (6) the residentsare often responsible for their own food, laundry and phone; (7) when residentsdisobey house rules they are often just kicked out of the house; (8) the residentsgenerally do not share the same acquaintances; and (9) residents often paysignificantly above-market rate rents; and

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WHEREAS, the size and makeup of the households in sober living homes,even those allowed as a matter of right under the Costa Mesa Municipal Code, isdissimilar and larger than the norm, creating impacts on water, sewer, roads,parking and other City services that are far greater than the average household, inthat the average number of persons per California household is 2.90 (2.74 in CostaMesa's R1 zones according to the City's General Plan), while a sober living facilityallowed as a matter of right would house six, which isin the top 5% of householdsin Orange County according to the most recent U.S. federal census data; and

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WHEREAS, all of six individuals residing in a sober living facility aregenerally over the age of 18, while the average household has just 2.2 individualsover the age of 18 according to the most recent federal census data; and

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WHEREAS, the City utilizes federal census data and other informationrelating to the characteristics of single-family neighborhoods for among otherthings: (1) determining the design of residential homes, residential neighborhoods,park systems, library systems, transportation systems; (2) determining parking andgarage requirements of single-family homes; (3) developing its General Plan andzoning ordinances; (4) determining police and fire staffing; (5) determining impactsto water, sewer and other services; and (5) in establishing impacts fees thatfairlyand proportionally fund facilties for traffic, parks, libraries, police and fire; and

WHEREAS, because of their extremely transient populations, above-normal numbers of individuals/adults residing in a single home and the lack ofregulations, sober living facilities present problems not typically associated withmore traditional single-family uses, including: the housing of large numbers ofunrelated aduit who mayor may not be supervised; disproportionate numbers ofcars associated with a single-family home which causes disproportionate trafficand utilization of on-street parking; excessive noise and outdoor smoking, whichinterferes with the use and enjoyment of neighbors' use of their property; neighborswho have little to no idea who does and does not reside in the home; little to nointeraction with the neighborhood; a history of opening facilties in completedisregard of the Costa Mesa Municipal Code and with little disregard for impactsto the neighborhood; disproportional impacts from the average dwelling unit tonearly all City services including sewer, water, parks, libraries, transportationinfrastructure, fire and police; a history of congregating in the same general area;and the potential influx of individuals with a criminal record; and

WHEREAS, a 650-foot distance requirement provides a reasonable marketfor the purchase and operation of a sober living home within the City and stillresults in preferential treatment for sober living homes in that non-handicappedindividuals in a similar living situation (Le., in boardinghouse-style residences)cannot reside in the R1 zone; and

WHEREAS, housing inordinately large numbers of unrelated adults in asingle-family home or congregating sober living homes in close proximity to eachother does not provide the handicapped with an opportunity to "live in normalresidential surroundings," but rather places them into living environments bearingmore in common with the types of institutional/campus/dormitory living that theFEHA and FHAA were designed to provide relief from for the handicapped, andwhich no reasonable person could contend provides a life in a normal residentialsurrounding; and

WHEREAS, notwithstanding the above, the City Council recognizes thatwhile not in character with a single-family neighborhood, that when operatedresponsibly, a group homes, including sober living homes, provide a societalbenefit by providing the handicapped the opportunity to live in single-family

neighborhoods, as well as providing recovery programs for individuals attemptingto overcome their drug and alcohol addictions, and that therefore providing greater

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access to R1 zones to group homes, including sober living homes, than toboardinghouses provides a benefit to the City and its residents; and

WHEREAS, without some regulation there is no way of ensuring that theindividuals entering into a group home are handicapped individuals and entitled toreasonable accommodation under local and state law; that a group home isoperated professionally to minimize impacts to the surrounding neighborhood; andthat the secondary impacts from over concent~ation of both group homes in aneighborhood and large numbers of unrelated adults residing in a single facility ina single home are lessened; and

WHEREAS, in addition to group homes locating in single-familyneighborhoods other state-licensed residential care facilities for six or fewerpersons who are mentally disordered or otherwise handicapped or supervised, arealso taking up residence in single-family neighborhoods; and

WHEREAS, the purpose of group homes for the handicapped is to providethe handicapped an equal opportunity to comfortably reside in the single familyneighborhood of their choice; and

WHEREAS, this Ordinance has been reviewed for compliance with theCalifornia Environmental Quality Act (CEQA), the CEQA guidelines, and the City'senvironmental procedures, and has been found to be exempt pursuant to Section15061 (b)(3) (General Rule) of the CEQA Guidelines, in that the City Councilhereby finds that it can be seen with certainty that there is no possibilty that thepassage of this Ordinance wil have a significant effect on the environment.

NOW, THEREFORE, THE CITY COUNCil OF THE CITY OF COSTAMESA DOES ORDAIN AS FOllOWS:

Section 1: The following definitions in Section 13-6 (Definitions) of Article 2(Definitions) of Chapter I (General) of Title 13 (Planning, ZOning and Development)are hereby repealed, amended or added as follows:

Alcoholism or drug abuse recovery or treatment facilty means adult alcoholism ordrug abuse recovery or treatment facilities that are licensed pursuant to Section11834.01 of the. California Health & Safety Code. Alcoholism or drug abuserecovery or treatment facilties are a subset of residential care facilities.

Boardinghouse A residence or dwelling, other than a hotel, wherein rooms arerented under three or more separate written or oral rental agreements, leases orsubleases or combination thereof, whether or not the owner, agent or rentalmanager resides within the residence. Boardinghouse, small means two or fewerrooms being rented. Boardinghouse, large means three or more rooms beingrented.

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Development Services Department means the Development Services Departmentof the City of Costa Mesa.

Disabled shall have the same meaning as handicapped.

Fair housing laws means the Federal Fair Housing Act, the Americans withDisabilities Act, and the California Fair Employment and Housing Act, as eachstatute may be amended from time to time, and each statute's implementingregulations.

Group home. A facilty that is being used as a supportive living environment forpersons who are considered handicapped under state or federal law. A grouphome operated by a single operator or service. provider (whether licensed orunlicensed) constitutes a single facility, whether the facility occupies one or moredwelling units. Group homes shall not include the following: (1) residential carefacilities; (2) any group home that operates as a single housekeeping unit.

Handicapped. As more specifically defined under the fair housing laws, a personwho has a physical or mental impairment that limits one or more major lifeactivities, a person who is regarded as having that type of impairment, or a personwho has a record of that type of impairment, not including current, illegal use of acontrolled substance. i

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Household includes all the people occupying a dwelling unit, and includes peoplewho live in different units governed by the same operator.

Integral facilities. Any combination of two or more group homes which mayor maynot be located on the same or contiguous parcels of land, that are under the controland management of the same owner, operator, management company or licenseeor any affiliate of any of them, and are integrated components of one operationshall be referred to as Integral Facilities and shall be considered one facility forpurposes of applying federal, state and local laws to its operation. Examples ofsuch Integral Facilities include, but are not limited to, the provision of housing inone facility and recovery programming, treatment, meals, or any other service orservices to program participants in another facility or facilities or by assigning staffor a consultant or consultants to provide services to the same program participantsin more than one licensed or unlicensed facilty.

Integral uses. Any two or more residential care programs commonly administeredby the same owner, operator, management company or licensee, or any affiliateof any of them, in a manner in which participants in two or more care programsparticipate simultaneously in any care or recovery activity or activities so commonlyadministered. Any such integral use shall be considered one use for purposes ofapplying federal, state and local laws to its operation.

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Operator means a company, business or individual who provides residentialservices, i.e., the placement of individuals in a residence, setting of house rules,and governing behavior of the residents as residents. Operator does not include aproperty owner or property manager that exclusively handles real estatecontracting, property management and leasing of the property and that does nototherwise meet the definition of operator.

Planning division. The planning division of the Development Services Departmentof the City of Costa Mesa.

Referral faciliy. A residential care facility or a group home where one (1) or moreperson's residency in the facility is pursuant to a court order or directive from anagency in the criminal justice system.

Residential care facílty. A residential facility licensed by the state where care,services, or treatment is provided to persons living in a supportive communityresidential setting. Residential care facilities include but may not be limited to thefollowing: intermediate care facilities for the developmentally disabled (Health &Saf. Code §§ 1267.8, 1267.9); community care facilities (Health & Saf. Code §§1500 et seq.); residential care facilities for the elderly (Health & Saf. Code §§1569et seq.); residential care facilities for the chronically ill (22 C.C.R. § 87801(a)(5);Health & Saf. § 1568.02); alcoholism and drug abuse facilities (Health & Saf. Code§§ 11834.02-11834.30); pediatric day health and respite care facilities (Health &Saf. Code §§ 1760 et seq.); residential health care facilities, including congregateliving health facilities (Health & Saf. Code §§ 1265-1271.1, 1250(i), 1250(e), (h));family care home, foster home, group home for the mentally disordered orotherwise handicapped persons or dependent and neglected children (WeI. & Inst.Code §§ 5115-5120).

(Residential services facílties is hereby deleted.)

Single housekeeping unit means that the occupants of a dwelling unit haveestablished ties and familarity with each other, jointly use common areas, interactwith each other, share meals, household activities, and expenses andresponsibilities; membership in the single housekeeping unit is fairly stable asopposed to transient, members have some control over who becomes a memberof the household, and the residential activities of the household are conducted ona nonprofit basis. There is a rebuttable presumption that integral facilities do notconstitute single housekeeping units. Additional indicia that a household is notoperating as a single housekeeping unit include but are not limited to: theoccupants do not share a lease agreement or ownership of the property; membersof the household have separate, private entrances from other members; membersof the household have locks on their bedroom doors; members of the householdhave separate food storage facilities, such as separate refrigerators.

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Sober living home means a group home for persons who are recovering from adrug and/or alcohol addiction and who are considered handicapped under state orfedèrallaw. Sober living homes shall not include the following: (1) residential carefaciliies; (2) any sober living home that operates as a single housekeeping unit.

Section 2: Chapter XV (Group Homes) of Title 13 (Planning, Zoning andDevelopment) is hereby added as follows:

Chapter XV: Group homes.

13-310 Purpose.

This chapter is intended to preserve the residential character of single-familyresidential neighborhoods and to further the purposes of the FEHA, the FHAA andthe Lanterman Act by, among other things: (1) ensuring that group homes areactually entitled to the special accommodation and/or additional accommodationprovided under the Costa Mesa Municipal Code and not simply skirting the City'sboarding house regulations; (2) limiting the secondary impacts of group homes byreducing noise and traffic, preserving safety and providing adequate on streetparking; (3) providing an accommodation for the handicapped that is reasonàbleand actually bears some resemblance to the opportunities afforded non-handicapped individuals to use and enjoy a dwelling unit in a single-familyneighborhood; and (4) to provide comfortable living environments that wil enhancethe opportunity for the handicapped and for recovering addicts to be successful intheir programs.

13-311 Special use permit required.

(a) A group home that may otherwise be considered an unpermitted use maylocate in an R1 zone with a special use permit provided:

1. An application for a group home is submitted to the director by theowner/operator of the group home. The application shall provide thefollowing: (1) the name, address, phone number and driver's licensenumber of the owner/operator; (2) the name, address, phone numberand driver's license number of the house manager; (3) a copy of thegroup home rules and regulations; (4) written intake procedures; (5)the relapse policy; (6) an affirmation by the owner/operator that onlyresidents (other than the house manager) who are handicapped asdefined by state and federal law shall' reside at the group home; (7)blank copies of all forms that all residents and potential residents arerequired to complete; and (8) a fee for the cost of processing of theapplication as set by Resolution of the City CounciL. No person shallopen a group home or begin employment with a group home until

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this information has been provided and such persons shall beresponsible for updating any of this information to keep it current.

2. The group home has six (6) or fewer occupants, not counting a housemanager, but in no event shall have more than seven occupants. Ifthe dwelling unit has a secondary accessory unit, occupants of bothunits will be combined to determine whether or not the limit of six (6)occupants has been exceeded.

3. The group home shall not be located in an acces~)Ory secondary unitunless the primary dwelling unit is used for the same purpose.

4. The group home has a house manager who resides at the grouphome or any multiple of persons acting as a house manager who arepresent at the group home on a 24-hour basis and who areresponsible for the day-to-day operation of the group home.

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5. All garage and driveway spaces associated with the dwelling unitshall, at all times, be available for the parking of vehicles. Residentsand the house manager may each only store or park a single vehicleat the dwelling unit or on any street within 500 feet of the dwellingunit. The vehicle must be operable and currently used as a primaryform of transportation for a resident of the group home.

6. Occupants must not require and operators must not provide "careand supervision" as those terms are defined by Health and SafetyCode Section 1503.5 and Section 80001(c)(3) of title 22, CaliforniaCode of Regulations. I

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7. Integral group home facilities are not permitted. Applicants shalldeclare, under penalty of perjury, that the group home does notoperate as an integral use/facility.

8. If the group home operator is not the property owner, written approvalfrom the property owner to operate a group home at the property.

9. The property must be fully in compliance with all building codes,municipal code and zoning code

1 O.ln addition to the regulations outlned above, the following shall alsoapply to sober living homes:

i. The sober living home is not located within 650 feet, asmeasured from the closest property lines, of any other sober

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living home or a state licensed alcoholism or drug abuserecovery or treatment facility.

ii. All occupants, other than the house manager, must beactively participating in legitimate recovery programs,

including, but not limited to, Alcoholics Anonymous orNarcotics Anonymous and the sober living home mustmaintain current records of meeting attendance. Under thesober living home's rules and regulations, refusal to activelyparticipate in such a program shall be cause for eviction.

iii. The sober living home's rules and regulations must prohibitthe use of any alcohol or any non-prescription drugs at the

sober living home or by any recovering addict either on or offsite. The sober living home must also have a written policy

regarding the possession, use and storage of prescriptionmedications. The facility cannot dispense medications butmust make them available to the residents. The possessionor use of prescription medications is prohibited except for theperson to whom they are prescribed, and in theamounts/dosages prescribed. These rules and regulationsshall be posted on site in a cómmon area inside the dwellingunit. Any violation of this rule must be cause for eviction underthe sober living home's rules for residency and the violatorcannot be re-admitted for at least 90 days. Any secondviolation of this rule shall result in permanent eviction.

Alternatively, the sober living home must have provisions inplace to remove the violator from contact with the otherresidents until the violation is resolved.

iv. The number of occupants subject to the sex offender

registration requirements of Penal Code Section 290 does notexceed the limit set forth in Penal Code Section 3003.5 anddoes not violate the distance provisions set forth in PenalCode Section 3003.

v. The sober living home shall have a written visitation policy thatshall preclude any visitors who are under the influence of any .drug or alcohoL.

vi. The sober living home shall have a good neighbor policy thatshall direct occupants to be considerate of neighbors,

including refraining from engaging in excessively loud,profane or obnoxious behavior that would unduly interferewith a neighbor's use and enjoyment of their dwelling unit. Thegood neighbor policy shall establish a written protocol for the

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house manager/operator to follow when a neighbor complaintis received.

vii. The sober living home shall not provide any of the followingservices as they are defined by Section 10501(a)(6) of Title 9,

California Code of Regulations: detoxification; educationalcounseling; individual or group counseling sessions; andtreatment or recovery planning.

11. An applicant may seek relief from the strict application of this Sectionby submitting an application to the director setting forth specificreasons as to why accommodation over and above this section isnecessary under state and federal laws, pursuant to Section 13-200.62.

(b) . The special use permit shall be issued by the director as a ministerial matter

if the applicant is in compliance or has agreed to comply with subsections(a)(1) through (a)(9) above. The special use permit shall be denied, and ifalready issued, any transfer shall be denied or revoked, upon a hearing bythe director under any of the following circumstances:

1. Any owner/operator or staff person has provided materially false ormisleading information on the application or omitted any pertinentinformation;

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2. Any owner/operator or staff person has an employment history inwhich he or she was terminated during the past two years becauseof physical assault, sexual harassment, embezzlement or theft;falsifying a drug test; and selling or furnishing illegal drugs or alcohoL.

3. Any owner/operator or staff person has been convicted of or pleadednolo contendere, within the last seven to ten years, to any of thefollowing offenses:

i. Any sex offense for which the person is required to register asa sex offender under California Penal Code Section 290 (last10 years);

ii. Arson offenses - violations of Penal Code Sections 451-455(last seven years); or

iii. Violent felonies, as defined in Penal Code Section 667.5,which involve doing bodily harm to another person (last 10years).

iv. The unlawful sale or furnishing of any controlled substances(last seven years).

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4. Any owner/operator or staff person is on parole or formal probationsupervision on the date of the submittal of the application or at anytime thereafter.

5. The owner/operator accepts residents, other than a house manager,who are not handicapped as defined by the FHAA and FEHA.

6. A special use permit for a sober living home shall also be denied,

and if already issued, any transfer shall be denied or revoked, upona hearing by the director under any of the following additionalcircumstances:

i. Any owner/operator or staff person of a sober living home is arecovering drug or alcohol abuser and upon the date ofapplication or employment has had less than one full year ofsobriety.

ii. The owner/operator of a sober living home fails to immediatelytake measures to remove any resident who uses alcohol or

ilegally uses prescription or non-prescription drugs, or who isnot actively participating in a legitimate recovery program fromcontact with all other sober residents.

iii. The sober living home, as measured by the closest propertylines, is located within 650 feet of any other sober living homeor state licensed alcoholism or drug abuse recovery ortreatment facility. If a state licensed alcoholism or drug abuserecovery or treatment facility moves within 650 feet of anexisting sober living home this shall not cause the revocationof the sober living home's permit or be grounds for denying atransfer of such permit.

7. For any other significant and/or repeated violations of this Sectionand/or any other applicable laws and/or regulations.

8. Revocation shall not apply to any group home, which otherwisewould cause it to be in violation of this Ordinance, that has obtaineda reasonable accommodation pursuant to Section 13-200.62.

13.312 Compliance.

(a) Existing group homes must apply for a special use permit within 90days of the effective date of this ordinance.

(b) Group homes that are in existence upon the effective date of thisordinance shall have one (1) year from the effective date of this ordinance to comply

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with its provisions, provided that any existing group home, which is serving morethan six residents, must first comply with the six resident maximum.

(c) Existing group homes obligated by a written lease exceeding one yearfrom the effective date of the ordinance, or whose activity involves investment ofmoney in leasehold or improvements such that a longer period is necessary toprevent undue financial hardship, are eligible for up to one additional years graceperiod pursuant to planning division approvaL.

13-313 Severabilty.

Should any section, subsection, clause, or provision of this Ordinance for anyreason be held to be invalid or unconstitutional, such invalidity orunconstitutionality shall not affect the validity or constitutionality of the remainingportions of this Ordinance; it being hereby expressly declared that this Ordinance,and each section, subsection, sentence, clause and phrase hereof would havebeen prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declaredinvalid or unconstitutionaL. This Ordinance shall be prospective in application fromits effective date.

13-314 - 13-350 (Reserved.)

Section 3: Article 15 (Reasonable Accommodations) of Chapter iX (Special LandUse Regulations) of Title 13 (Planning, Zoning and Development) is herebyrepealed and replaced with the following:

13-200.60 Purpose.

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It is the city's policy to provide reasonable accommodation in accordance withfederal and state fair housing laws (42 USC § 3600 et seq. and Government Code§ 12900 et seq.) for persons with disabilities seeking fair access to housing in theapplication of the city's zoning laws. The term "disability" as used in this articleshall have the same meaning as the terms "disability" and "handicapped" asdefined in the federal and state fair housing laws. The purpose of this article is toestablish the procedure by which a person may request reasonableaccommodation, and how the request is to be processed.

13-200.61 Applicabilty.

Any person seeking approval to construct and/or modify residential housing forperson(s) with disabiliies, and/or operate a residential care facility, group home,or referral facility, which will substantially serve persons with disabilities may applyfor a reasonable accommodation to obtain relief from a Zoning Code provision,

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regulation, policy, or condition which causes a barrier to equal opportunity forhousing.

13-200.62 Reasonable accommodations - procedure.

(a) Application required. An application for a reasonable accommodation shallbe filed and processed with the Planning Division. The application shallinclude the following information and be subject to the determinant factorsrequired by this section.

(b) Submittal requirements. The application shall be made in writing, and shallinclude the following information:

1. The zoning code provision, regulation, policy, or condition from whichaccommodation is being requested;

2. The basis for the claim that the individuals are considered disabledunder state or federal law, and why the accommodation is necessaryto provide equal opportunity for housing and to make the specifichousing available to the individuals;

3. Any other information that the director reasonably determines isnecessary for evaluating the request for reasonable accommodation;

4. Documentation that the applicant is: (a) an individual with a disability;(b) applying on behalf of one or more individuals with a disability; or(c) a developer or provider of housing for one or more individualswith a disability;

5. The specific exception or modification to the Zoning Code provision,policy, or practices requested by the applicant;

6. Documentation that the specific exception or modification requestedby the applicant is necessary to provide one or more individuals witha disabiliy an equal opportunity to use and, enjoy the residence;

7. Any other information that the Hearing Officer reasonably concludesis necessary to determine whether the findings required by Section(e) can be made, so long as any request for information regardingthe disability of the individuals benefited complies with fair housinglaw protections and the privacy rights of the individuals affected;

(c) Fees. No application fee is required.

(d) Director action. Within 60 days of receipt of a completed application, thedirector shall issue a written determination to approve, conditionally

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approve, or deny a request for reasonable accommodation, and the

modification or revocation thereof in compliance with this chapter. Anyappeal to reasonable accommodation request denial or conditionalapproval shall be heard with, and subject to, the notice, review, approval,and appeal procedures prescribed for any other discretionary permitprovided that, notwithstanding any other provision to the contrary, thestandard of review on appeal shall not be de novo and the planning

commission shall determine whether the findings made by the director aresupported by substantial evidence presented during the evidentiaryhearing. The planning commission, acting as the appellate body, maysustain, reverse or modify the decision of the director or remand the matterfor further consideration, which remand shall include specific issues to beconsidered or a direction for ade novo hearing.

(e) Grounds for reasonable accommodation. The following factors shall beconsidered in determining whether to grant a reasonable accommodation:

1. Special needs created by the disabilty;

2. Potential benefit that can be accomplished by the requestedmod ification;

3. Potential impact on properties within the vicinity;

4. Physical attributes of the property and structures;

. 5. Alternative accommodations that may provide an equivalent level ofbenefit;

6. In the case of a determination involving a single family dwelling,

whether the residents would constitute a single housekeeping unit;

7. Whether the requested accommodation would impose an unduefinancial or administrative burden on the City;

8. Whether the requested accommodation would require a fundamentalalteration in the nature of a City program;

9. Whether granting the request would be consistent with the City'sGeneral Plan; and,

10. The property will be used by an individual with disability protectedunder fair housing laws.

(f) Findings. The written decision to approve, conditionally approve,.or deny arequest for reasonable accommodation shall be based on the following

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findings, all of which are required for approval. In making these findings, thedirector may approve alternative reasonable accommodations which

provide an equivalent level of benefit to the applicant.

1. The requested accommodation is requested by or on the behalf ofone or more individuals with a disability protected under the fairhousing laws.

2. The requested accommodation is necessary to provide one or moreindividuals with a disability an equal opportunity to use and enjoy adwelling.

3. The requested accommodation wil not impose an undue financial oradministrative. burden on the city, as "undue financial oradministrative burden" is defined in fair housing laws and interpretivecase law.

4. The requested accommodation is consistent with the whether or notthe residents would constitute a single housekeeping unit.

5. The requested accommodation will not, under the specific facts ofthe case, result in a direct threat to the health or safety of otherindividuals or substantial physical damage to the property of others.

6. Whether the requested accommodation is necessary to makefaciliies of a similar nature or operation economically viable in lightof the particularities of the relevant market and market participants.

7. Whether the existing supply of facilities of a similar nature andoperation in the community is sufficient to provide individuals with adisability an equal opportunity to live in a residential setting.

8. The requested accommodation will not result in a fundamentalalteration in the nature of the City's zoning program.

(g) The City may consider, but is not limited to, the following factors indetermining whether the requested accommodation would require afundamental alteration in the nature of the City's zoning program.

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1. Whether the requested accommodation would fundamentally alterthe character of the neighborhood.

2. Whether the accommodation would result in a substantial increasein traffic or insufficient parking.

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3. Whether granting the requested accommodation would substantiallyundermine any express purpose of either the city's General Plan oran applicable Specific Plan.

4. Whether the requested accommodation would create aninstitutionalized environment due to the number of and distancebetween facilities that are similar in nature or operation.

5. Any other factors that would cause a fundamental alteration in theCity's zoning program, as may be defined in the Fair Housing Law.

13-200.63 Severabilty.

Should any section, subsection, clause, or provision of this Ordinance for anyreason be held to be invalid or unconstitutional, such invalidity orunconstitutionality shall not affect the validity or constitutionality of the remainingportions of this Ordinance; it being hereby expressly declared that this Ordinance,and each section, subsection, sentence, clause and phrase hereof would havebeen prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declaredinvalid or unconstitutionaL. This Ordinance shall be prospective in application fromits effective date.

13-200.64 - 13.200.69 (Reserved.)

Section 4. Inconsistencies. Any provision of the Costa Mesa Municipal Code orappendices thereto inconsistent with the provisions of this Ordinance, to the extentof such inconsistencies and no further, is hereby repealed or modified to that extentnecessary to affect the provisions of this Ordinance.

Section 5. Severabilty. If any chapter, article, section, subsection, subdivision,sentence, clause, phrase, word, or portion of this Ordinance, or the applicationthereof to any person, is for any reason held to be invalid or unconstitutional by thedecision of any court of competent jurisdiction, such decision shall not affect thevalidity of the remaining portion of this Ordinance or its application to otherpersons. The City Council hereby declares that it would have adopted thisOrdinance and each chapter, article, section, subsection, subdivision, sentence,clause, phrase, word, or portion thereof, irrespective of the fact that anyone ormore subsections, subdivisions, sentences, clauses, phrases, or portions of theapplication thereof to any person, be declared invalid or unconstitutionaL. No

portion of this Ordinance shall supersede any local, state, or federal law,regulation, or cod~s dealing with life safety factors.

Section 6. This Ordinance shall take effect and be in full force thirty (30) days fromand after the passage thereof, and prior to the expiration of fifteen (15) days from

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its passage shall be published once in the ORANGE COAST DAILY PILOT, anewspaper of general circulation, printed and published in the City of Costa Mesaor, in the alternative, the City Clerk may cause to be published a summary of thisOrdinance and a certified copy of the text of this Ordinance shall be posted in theoffice of the City Clerk five (5) days prior to the date of adoption of this Ordinance,and within fifteen (15) days after adoption, the City Clerk shall cause to bepublished the aforementioned summary and shall post in the office of the City Clerka certified copy of this Ordinance together with the names and member of the CityCouncil voting for and against the same.

Adopted this day of ,2014

Jim Righeimer, Mayor

ATTEST:

Brenda Green

City Clerk of the City of Costa Mesa

STATE OF CALIFORNIA)COUNTYOF COSTA MESACITY OF COSTA MESA )

I, BRENDA GREEN, City Clerk of the City of Costa Mesa, California, dohereby certify that the foregoing Ordinance was introduced at the regular meetingof the City Council held on the _ day of , 2014, and thereafter at theregular meeting of said City Council duly held on the day of ,2014,was duly passed and adopted by the following vote, to wit:

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AYES:NOES:ABSENT:ABSTAIN:

Brenda GreenCity Clerk of the City of Costa Mesa

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MEETING DATE: DEPARTMENT: SUBJECT: RECOMMENDED …

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