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PC RES 4466
RESOLUTION NO. 4466 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, DENYING A REQUEST FOR DISABILTY- RELATED MODIFICATION OF POLICIES, PRACTICES AND/OR PROCEDURES RELATED TO A PROPOSED OUT- PATIENT TREATMENT AND COUNSELING CENTER FOR OPIOID USE DISORDER UTILIZING MEDICATED-ASSISTED TREATMENT (MAT) IN COMBINATION WITH COUNSELING AND BEHAVIORAL THERAPIES AT 535 E. FIRST STREET, SECOND FLOOR The Planning Commission does hereby resolve as follows: I. The Planning Commission finds and determines as follows: A. That California Treatment Services, a subsidiary of Acadia Healthcare Company, Inc. ("Acadia"), seeks to establish an out-patient treatment and counseling center (Comprehensive Treatment Center or CTC) for opioid use disorder utilizing medicated-assisted treatment (MAT) in combination with counseling and therapies at 535 E. First Street, Second Floor, Tustin, California (the "Property"). B. That the Property is located within Development Area DA-3 of the DCCSP and has a DCCSP General Plan land use designation. C. That the proposed CTC use is not expressly listed as a permitted use in in the DCCSP. D. That in a zoning letter dated February 17, 2022, the Community Development Director ("Director") preliminarily determined that the proposed use was more closely related to a listed category of clinics for out-patients only services, which requires a CUP. E. That on March 18, 2022, Acadia requested that the Director reconsider the zoning letter determination, urging her to determine that the proposed use be categorized the same as medical and dental offices and labs, which are permitted by right. F. That on April 12, 2022, pursuant to Tustin City Code (TCC) Section 9298b and DCCSP Section 6.1.7, the Director issued a formal "Use Determination" determining that the proposed CTC use is similar to the medical land use category that includes clinics for out-patients only, including medical clinics, healthcare centers, and urgent care, which is allowed in the DCCSP - DA-3 zone with the approval of a CUP. G. That on April 19, 2022, Acadia submitted a Conditional Use Permit (CUP) application for the proposed CTC. H. That in accordance with TCC section 9294, the Use Determination letter informed Acadia that it could appeal the determination by filing an appeal by 1743997.1 Resolution No. 4466 Appeal of Denial of Request for Disability-Related Reasonable Modification January 10, 2023 Page 2 April 22nd (within ten (10) calendar days of the April 12, 2022, determination). No appeal was filed during that time. I. That the Americans with Disabilities Act ("ADA") (42 USC Section 12131 et. seq) prohibits public entities from discriminating against qualified individuals on the basis of disability. Persons receiving treatment for Opioid Use Disorder, who are not currently engaged in illegal drug use, are classified as persons with a disability under the ADA. A public entity must make reasonable modifications to its policies, practices, or procedures — including land use planning and zoning regulations — when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. J. That on September 20, 2022, Acadia and the owner of the Property, Atomic Investments, Inc. ("Atomic") submitted a written request for a "disability-related reasonable modification to the City of Tustin's ... policies, practices, and/or procedures to allow Acadia to operate an outpatient treatment and counseling center..." (the "Request for Disability-Related Reasonable Modification"). The September 20 letter also requested that the City again revisit the Use Determination and determine that the proposed use is permitted by right because, in the applicant's view, the proposed use is akin to "medical and dental offices, including labs", which are permitted by right in the DCCSP. (Attachment 1.) K. That on October 21, 2022, the Community Development Director responded in writing to the Request for Disability-Related Reasonable Modification and determined that a modification of the City's policies, practices, and/or procedures to treat the use as permitted by right is not necessary to avoid discrimination on the basis of disability. (Attachment 2.) L. That on October 28, 2022, pursuant to Tustin City Code (TCC) § 9294(a), Acadia filed a formal appeal to the Planning Commission of the Director's denial of the Request for Disability-Related Reasonable Modification. (Attachment 3.) The relief sought in the appeal is described by Acadia as follows: "The relief Acadia is seeking is reversal of the Directors denial of Acadia's request, or in the alternative, any other path forward that will allow Acadia to operate its much-needed CTC at the Property." M. On November 28, 2022, the Director responded in writing with a detailed response to Acadia's October 28, 2022 appeal letter. (Attachment 4.) J N. That the Planning Commission considered said appeal at a duly noticed public meeting on January 10, 2023. 1743997.1 Resolution No. 4466 Appeal of Denial of Request for Disability-Related Reasonable Modification January 10, 2023 Page 3 O. That at this public meeting, Acadia, Acadia's representatives, and members of the public were provided the opportunity to present written and oral testimony. P. That the Planning Commission has carefully reviewed and considered all of the evidence presented in connection with the appeal, including, but not limited to, the agenda report, and all written and oral testimony presented. II. The Planning Commission hereby denies the Request for Disability-Related Reasonable Accommodation, upholding the Community Development Director's October 21, 2022 determination, and finding that a modification of the City's policies, practices, and/or procedures is not necessary to avoid discrimination on the basis of disability. III. The Planning Commission recognizes that persons receiving treatment for Opioid Use Disorder are "qualified individual[s] with a disability" afforded full protection under the ADA, and that the ADA prohibits the City and the Planning Commission from discriminating against qualified individuals in making land use decisions. IV. The Planning Commission also recognizes that in considering the application for CUP, the City and the Planning Commission may not treat the proposed CTC differently than it would any other medical clinic. Specifically, the Planning Commission may not base its decision on the fact that patients at the CTC will be receiving treatment for Opioid Use Disorder. V. The Planning_Commission also recognizes that unsubstantiated fears, prejudice or stereotypes related to persons recovering from Opioid Use Disorder may not form the basis of the Planning Commission's decision on the application for CUP. VI, The Planning Commission finds that it can and will decide the application for a Conditional Use Permit without discriminating on the basis of disability, so a modification of the City's policies, practices, and/or procedures is not necessary to avoid discrimination on the basis of disability. PASSED AND ADOPTED by the Planning Commission of the City of Tustin, at a regular meeting on the 101h day of January, 2023, DAVID J. ME-CLO, JR. Chairperson JLl NA L. WILLKOM Planning Commission Secretary 1743997.1 Resolution No. 4466 Appeal of Denial of Request for Disability-Related Reasonable Modification January 10, 2023 Page 4 Attachments: 1. Applicant's September 20, 2022 Request for a Disability-Related Modification to the City of Tustin's Policies, Practices, and/or Procedures. 2. Community Development Director's October 21, 2022 Response to Request for Disability- Related Modification to the City of Tustin's Policies, Practices, and/or Procedures. Submitted Plans 3. Applicant's October 28, 2022 Appeal of the Director's Denial of the Request for Disability-Related Modification to the City of Tustin's Policies, Practices, and/or Procedures. 4. Community Development Director's November 28, 2022 Response to Appeal Letter. STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, JUSTINA L. WILLKOM, the undersigned, hereby certify that I am the Planning Commission Secretary of the Planning Commission of the City of Tustin, California, that Resolution No. 4466 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 10th day of January 2023. PLANNING COMMISSIONER AYES: Higuchi, Kozak, Mason, Mello (4) PLANNING COMMISSIONER NOES: u PLANNING COMMISSIONER ABSTAINED: PLANNING COMMISSIONER ABSENT: JUS NA L. WILLKOM Planning Commission Secretary 1743997,1 Brian Spalding ATTACHMENT 1 Direct Dial:(828)421-6833 E-mail:Brian.Spalding@AcadiaHealthcare.com September 20, 2022 VIA E-MAIL Justina L. Willkom Mariam Madjlessi City of Tustin City of Tustin Community Development Director Community Development ADA Liaison JWillkom@tustinca.org MMadjlessi@tustinca.org Erica N. Yasuda David E. Kendig City of Tustin City of Tustin City Clerk& ADA Compliance Officer City Attorney EYasuda@tustinca.org DKendig@wss-law.com Re: Request for Disability-Related Reasonable Accommodation - Comprehensive Treatment Center at 535 E. First Street, Second Floor, Tustin, CA Dear Gentlepersons: By this letter, and pursuant to Section 35.130(b)(7)(i) of Title 28 of the Code of Federal Regulations, wet are formally requesting a disability-related reasonable modification to the City of Tustin's ("City" or "Tustin") policies, practices, and/or procedures to allow Acadia to operate an outpatient treatment and counseling center, commonly referred to as a "comprehensive treatment center" or"CTC" ("Project") at 535. E. First Street, Second Floor(the "Property"). The comprehensive treatment center would serve members of the community who rely on medicated- assisted treatment ("MAT"), counseling, and/or behavioral therapies to recover from Opioid Use Disorder. The City's Planning Commission is scheduled to resume its public hearing on our Project on September 27, 2022. In light of this reasonable modification request, we anticipate we will submit another written request for a continuance of that hearing, but we would like to discuss our options with the City's Project team before we make a decision. In addition,we have not received confirmation from the City that it has provided a complete response to a Public Records Act request we submitted on July 21,2022. Specifically,we requested records that will help us understand the basis for staff's concerns about our Project. The records the City has provided to date do not include any written opposition from any Tustin employee to our Project. Nevertheless, we are told staff plans to recommend the Planning Commission deny our request for a Conditional Use Permit because it believes the Project is incompatible with 1 In this letter, "we" and"our" collectively refers to California Treatment Services (a subsidiary of Acadia Healthcare Company,Inc.)("Acadia")(the prospective tenant)and Atomic Investments, Inc. ("Atomic") (the owner of the Property). 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 2 surrounding uses and will be detrimental to the health, safety, and general welfare "based upon law enforcement data received relative to a similar use operated by [Acadia] in an adjacent city." (Attachment 17.) As discussed in more detail below, staff's anticipated denial recommendation is based on a misunderstanding about the number of calls for service Acadia's CTC in the City of Santa Ana generates. The reality is that Acadia's Santa Ana CTC generates very few calls for service approximately 10 calls in a 2.5 year period. (See Attachment 23.) The City has not divulged any valid basis to deny our request for a CUP. Moreover, in our unique circumstance,the CUP process itself is deeply flawed because the members of the community that our CTC will serve and employ i.e., individuals in recovery from addiction and those who provide services to them face profound fear and animosity from the public at large. Without a reasonable modification, we are concerned denial of our CUP is a foregone conclusion. Background on the Opioid Epidemic In the late 1990s, healthcare providers began to prescribe opioid pain relievers at greater rates. (HHS._gov/opioids.)This led to widespread misuse of both prescription and non-prescription opioids before it became clear that these medications could be highly addictive. (Id) "Opioid addiction is a chronic disease, like heart disease or diabetes. A chronic disease is a medical condition for life. It cannot be cured, but it can be managed. A person with addiction can regain a healthy, productive life." ("Medication-Assisted Treatment for Opioid Addiction — Facts for Families and Friends,"p. 3 [pg. 5 of pdf].) In 2016, "Opioid overdoses accounted for more than 42,000 deaths," which was "more than any previous year on record." (HHS._gov/opioids.) In 2017, the United States Department of Health and Human Services ("HHS") declared a public health emergency to address the nationwide opioid crisis. (HHS Press Release, Oct. 26,2017.)One of the stated priorities of HHS's declaration is to "[i]mprove access to prevention, treatment, and recovery support services." (Id.) HHS recognizes that "[m]edication-assisted treatment is one way to help those with opioid addiction recover their lives." ("Medication-Assisted Treatment for Opioid Addiction —Facts for Families and Friends,"p. 2 of pdf.)"Medication-assisted treatment" (or"MAT")"is treatment for addiction that includes the use of medication along with counseling and other support." (Id, at p. 4 [pg. 7 of pdf] [emphasis added].) HHS recognizes that"[t/reatment that includes medication is often the best choice for opioid addiction." (Id [emphasis added].) Residents of Orange County have been hit particularly hard by the opioid epidemic. In or around 2018, the Orange County Alcohol and Drug Advisory Board ("ADAB") released a report 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 3 titled"The Opioid Crisis: A Community Input Anal." Among other things, ADAB found that "Orange County has a higher per capita rate of overdose deaths than the state of California(Figure 1) and all of the surrounding southern California counties (Figure 2)." (Id, at p. 11.) Opioid Overdose Death Rate Trends(US,CA&CC) ® Opioid Overdose Mortality Irate 1s (200-20(7;15-64 Yr olds) 12 m © m s 8 b�b 6 6 G C d Ce A Y � F E 1 a � m11 m1E m1. m1d —s 2M 2— m1H O OnrgR San VRmw18 Santa —d. les San LMfbmla —Iingetl States California ,. Orange Courcy Courcy Olega BarEan Angela germartllne 5uwrn.COC ftderf VSandL'allf iaro-res;Callf i,C Mhe..1wL MFiief 0—V Cowwry Same OpiaidNlsurr Coweweuniry Aueumrwr lbol Argx./JoplaEmisuteroof nart.mgr ADAB surveyed 326 consumers of opioids in Orange County. (Id, at p. 16.) The majority (60%) reported they first started using prescription opioids, and nearly 4 in 10 (37%) started with prescription opioids and then moved on to heroin. (Id, at p. 18.) Nearly one-third (28%) of the consumers reported having overdosed on opioids and 43% had witnessed someone else overdose on opioids. (Id, at p. 19.)Eighty-one percent(81%) of the consumers reported that they were now abstinent from opioid use, and nine percent(9%) of the consumers reported they were undergoing medication assisted treatment (MAT). (Id, at p. 17.) One of ADAB's recommendations was to "[i]ncrease access to evidence-based Medication Assisted Treatment(MAT)." (Id, at p. 26.) Background on Acadia Healthcare Acadia is a leading provider of behavioral healthcare services across the United States. With more than 22,500 employees serving approximately 70,000 patients daily,we are the largest stand-alone behavioral health company in the U.S. We provide psychiatric and chemical dependency services to its patients in a variety of settings,including inpatient psychiatric hospitals, specialty treatment facilities, residential treatment centers, outpatient treatment and counseling centers (like the CTC proposed here), and therapeutic school-based programs. Our mission is to create a world-class organization that sets the standard of excellence in the treatment of specialty 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 4 behavioral health and addiction disorders. In 2022, seven of our facilities in five states ranked in Newsweek's list of America's Best Addiction Treatment Centers. Through our subsidiaries, we currently operate more than nine comprehensive treatment centers in the State of California (see Attachment 4, p. 45) and dozens more in other states. Our CTC in the City of Tustin would hold the following licenses, certificates, accreditations, and memberships: • A license from the California Department of Health Care Services ("DHCS") to operate a substance abuse facility using MAT modality; • A license from the United States Drug Enforcement Administration ("DEA") to allow it to administer and/or dispense specified medications (mainly, buprenorphine, methadone, and naltrexone); • A certificate from the United States Substance Abuse and Mental Health Services Administration ("SAMHSA") to allow it to use specified medications to treat Substance Abuse diagnoses; • An accreditation from the Commission on Accreditation of Rehabilitation Facilities ("CARF International"); and • A member of the National Association of Addiction Treatment Providers ("NAATP"). We have established a longstanding track record of being a good neighbor and conscientious member of the community. Many of our landlords provided letters speaking to this. (See Attachment 24.) Here are some examples of what our landlords had to say about our CTCs: • Acadia is "diligent about keeping their spaces, both interior and exterior in a clean and presentable manner." Its patients are "controlled and monitored" and its CTC is "compatible with other uses in the surrounding area, which include a Chiropractor, glass company, personal training facility and other retail and office uses in the immediate area." (Attachment 24, at p. 528 [Letter from RG Investment Real Estate Services, Inc. about Acadia's Mission Treatment CTC at 8898 Clairemont Mesa Blvd., Suites H and I in San Diego, California].) 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 5 • Acadia's CTC is "clean and attractive." Its staff is "professional and diligent whenever issues need to be addressed." They have "shown professionalism in dealing with patients and [e]nsuring that the[ir] pres[ence] at the clinics is safe and quiet for the neighborhood." (Attachment 24, at p. 529 [Letter from Terwedo Partnership about Acadia's Sacramento Comprehensive Treatment Center at 7225 East Southgate Drive in Sacramento, California.].) • "Any reservations that we, or our tenants, may have had about [Acadia] becoming a tenant have been unfounded. We haven't had any negative issues resulting from their presence." Acadia's patients as "respectful" and "come and go inconspicuously just like any other customer who comes into our plaza." Acadia's "staff members are always courteous and easily reached if we need to speak with someone." (Attachment 24, at p. 530 [Letter from Peter E. Johnson Building Supplies, Inc. about Acadia's West Lebanon Comprehensive Treatment Center (formerly, Habit OPCO) at 254 N. Plainfield Rd. in West Lebanon, New Hampshire].) • The services Acadia provides are "vital to the regional community suffering from the ill effects of substance abuse and the clients that visit the location are desperate and truly in need. ... I am so confident in [Acadia's] tenancy" that "I have in the same location [as] a liquor store and [a] 35,000 square foot indoor amusement park that caters to children" with "no problems whatsoever" and no complaints about Acadia's"staff,patients, or guests."(Attachment 24, at p. 531 [Letter from Andrew Piscatelli about Acadia's Central Jersey Comprehensive Treatment Center at 111 Hwy. 35 in Clifford, New Jersey].) • "My partners and I had some initial concerns/conversations regarding the occupancy of Acadia Health within our property," but Acadia has proven itself to be "above average in professionalism and accountability." (Attachment 24, at p. 532 [Letter from Speed Commercial Real Estate about Acadia's Jackson Comprehensive Treatment Center at 1935 Lakeland Drive in Jackson, Missouri) As we have offered in the past, we would be happy to provide City staff with a tour of one of our other CTCs,provided staff coordinate with us first so we can make arrangements to protect patient privacy and minimize disruption to our CTC's operations. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 6 Disability-Related Need for the Project Our proposed Project would exclusively serve"qualified individual[s] with a disability"as that term is defined in the federal regulations that implement the Americans with Disabilities Act ("ADA"). 28 C.F.R. § 35.108(b)(2). The individuals who rely on our CTCs unquestionably have physical or mental impairments that substantially limit major life activities, as those terms are defined in the ADA's regulations. 28 C.F.R. § 35.108. The regulations recognize"drug addiction" as a "physical or mental impairment." 28 C.F.R. § 35.108(b)(2). "Major life activities" include (among other things): caring for oneself, eating, sleeping, concentrating,thinking,interacting with others, working, and neurological functioning. 28 C.F.R. § 35.108(c)(1). To be a patient of our CTCs, an individual must have Opioid Use Disorder, but that individual cannot be actively using opioids (or any other illegal drugs). CTCs are not detox facilities. They provide services (e.g., counseling) and treatment(e.g., medication) to individuals in recovery from addiction to prescription painkillers, heroin, and other opioids. A patient needs to have stopped using opioids to be eligible for services and treatment from the CTC. Our CTCs perform regular drug screenings to ensure our patients do not have any of these substances in their system at the time they obtain services and/or treatment. For our patients, the services our CTCs provide are crucial to maintaining their recovery. We have provided testimonials from recent patients attesting to this. (Attachment 25.) Here are some examples of their experiences: • Michael became addicted to opioids when his doctors prescribed them to him for pain management following a series of surgeries for a high school wrestling injury. As a college student, Michael's addiction "steadily became worse and worse." By junior year, he had stopped attending classes, and his relationship with his family was "all but destroyed." He sought treatment at Acadia's CTC in Santa Ana. Initially, he took time off school to focus on his treatment,but he has since returned to school and has "turned [his] life around in every aspect." Michael reports: "this would not have been possible without the treatment I received at this center." (Attachment 25,p. 534.) • Jeremiah became addicted to opioids after doctors prescribed them to him for health issues.His wife and children were suffering because he could not"stay off opiates." He tried to stop on his own, but he would "relapse due to cravings and withdrawals." He says the Santa Ana CTC "has saved my life and my family." (Attachment 25,p. 535.) 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 7 • Sarah has been a patient of the Santa Ana CTC since 2014. She says she would not be able to go back to the workforce without her medication from the Santa Ana CTC, and she "truly believe[s] that [she] would not be alive today without MAT treatment." (Attachment 25,p. 536.) Expeditiously approving our Project in Tustin will make it possible for us to continue to provide treatment and services to these and many other patients without interruption. Our Project is crucial to meeting this community's urgent (and largely unmet) need for evidence-based treatments for Opioid Use Disorder. Shortage of CTCs Licensed to Provide MAT in Orange County According to DHCS records, Tustin has no CTCs that are licensed to provide MAT, and despite abundant need,there is an extreme shortage of these facilities in the greater Orange County area: Buen PF k --Anaheim Orange Garden Grove we:tr,.n.e Santa Ana a Taen Fn Valltey gRANG Iluntington Iry ine Beach Costa Mesa Ran.-ha Sana LaG F.rast. Margarita N—p- Mission View BBa Ch Laguna:.H ills All—Viejo' Laqu Nigyel - Screen Grab of DHCS's Licensed Narcotic Treatment Programs App, last visited Sept. 2, 2022 Currently, the closest CTC that is DHCS-licensed to provide MAT is our Santa Ana Comprehensive Treatment Center, located at 2101 East 1st Street in the City of Santa Ana. Our 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 8 Santa Ana CTC is at capacity, and we are in the process of closing it.2 There only three other DHCS-licensed CTCs in Orange County, but they are much farther away (in the Cities of Mission Viejo, Costa Mesa, and Stanton). The impending closure of our Santa Ana CTC is one reason Acadia is seeking approval of a new CTC in Tustin. The Tustin CTC would take the place of the Santa Ana CTC so we can continue to help members of this community who very much need our evidence-based intervention. Again, there is a tremendous need in the Orange County area especially in and around Tustin in the face of the Fentanyl pandemic. Shortage of Suitable Sites for CTCs Licensed to Provide MAT It was very difficult to find a suitable alternate location for our CTC. We have been searching for properties to relocate the Santa Ana CTC for over 1 year. We have faced ongoing logistical issues finding sites with sufficient access for our patients with mobility disabilities. Stigmas and misperceptions about individuals in recovery from addiction have made it difficult to find landlords and cities that are receptive to and supportive of our CTCs. The Property in Tustin is ideal.It is located in a safe and secure area on a major throughfare (East 1st Street) near two freeways (Interstate 5 and State Route 55) and meets all of Tustin's development standards. The CTC would be on the second floor of an existing building on a site with a parking surplus, by both the City's minimum requirements, as well as our own. The first floor of the building is currently used for medical purposes a dialysis clinic and there are many other medical and quasi-medical services uses in the surrounding area(e.g., doctors' offices, dentist offices, Botox clinics, etc.). Legal Authority for this Reasonable Modification Request We note that the City has adopted a reasonable accommodation procedure for housing- related accommodation requests (see Tustin Zoning Code § 9278),but the City does not appear to have a procedure for disability-related reasonable modification requests that do not relate to housing (like this one). Whether a city has its own procedure or not, it has a legal obligation to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, 2 As discussed in more detail below, Acadia's Santa Ana CTC is in a problematic location. It is next to a budget-style motel and what seems to be an ongoing an encampment of unsheltered individuals in a public alley, many of whom appear to regularly use illegal drugs outside Acadia's CTC. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 9 program, or activity." 28 C.F.R. § 35.130(b)(7)(i). A city's zoning-related "ordinances, and any administrative processes, hearings, and decisions ... fall squarely within the category of`policies, practices, or procedures' mentioned in the [ADA's implementing] regulations."Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 233 (S.D.N.Y. 1996), affd in part, 117 F.3d 37 (2d Cir. 1997). If you are not yet familiar with the ADA's reasonable modification requirement, the cautionary tale in Behavioral Health Services., Inc. v. City of Gardena, No. CV 01-07183 (RZ), 2003 WL 21750852 (C.D. Cal. Feb. 26, 2003) is a helpful illustration. There, Behavioral Health Services, Inc. ("BHS") sought approval from the City of Gardena ("Gardena") to operate a rehabilitation program for individuals who previously had abused alcohol or drugs. BHS's program would be in an existing three-story building in Gardena's "General Commercial (C-3)" zone. In that zone, Gardena permitted numerous intensive uses by right, including community care facilities, retail stores, medical laboratories, business and professional offices, and medical offices. Nevertheless, Gardena told BHS its proposed use would require Planning Commission approval of a conditional use permit("CUP"). As instructed, BHS applied for a CUP. Gardena's planning staff recommended denial of it. At the Planning Commission's hearing (which spanned two meetings), members of the public "expressed fear that the program would bring or exacerbate crime, and employed stereotypes associated with drug addicts or alcoholics." (Id, at Finding of Fact, ¶ 25.) The Planning Commission denied BHS's application, and BHS appealed the denial to the City Council. The City's Council's appeal hearing lasted more than three hours. The Council received a petition with 796 signatures opposing the project and speakers, again, "used stereotypes associated with addicts and alcoholics." (Id, at Finding of Fact, ¶ 27.) Faced with this overwhelming community opposition, the City Council unanimously denied BHS's appeal and upheld the Planning Commission's denial of BHS's CUP primarily on the basis that, in the Council's view, "that the use is not compatible with the surrounding area, it is too close to single family areas, will create additional burdens on Thornburg Park which already has high usage and will create an additional burden on already impacted city services." (Id, at Finding of Fact, ¶ 32.) BHS mounted a successful legal challenge that resulted in a United States District Court finding that "[i]n denying the conditional use permit, the City violated the `accommodation' provisions of the FHA, the ADA, and the Rehabilitation Act." (Id, at Conclusion of Law, ¶ 18.) The Court found that "[r]easonable accommodation of the participants' handicapped status is necessary because such accommodation will ameliorate the effects of the disability of the participants." (Id at Finding of Fact,¶42.) BHS's rehabilitation program had"been successful in returning recovering addicts and alcoholics to employment, and in developing parenting skills 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 10 which the experience of addiction or alcoholism had stifled or destroyed." (Id) At the time the City Council denied the CUP, Gardena had no other facilities that offered "recovery services for addicts and alcoholics" and "demand for such a facility is high." (Id) The Court entered an injunction "restraining the City of Gardena from denying BHS a conditional use permit to use the property as described in the application." (Id at Conclusion of Law, ¶27.) Other disability discrimination actions have resulted in large damages awards against local agencies, such as McClure v. City of Long Beach where a jury awarded a $22.5 million dollar verdict against the City of Long Beach when it bowed to pressure from neighbors to prevent the plaintiffs from providing boarding facilities for Alzheimer's patients. We do not want this request to be perceived as a threat of a legal challenge. It is not. We include this legal authority to make sure from the outset that the City understands the rights and protections the ADA affords our patients and the obligations it imposes on the City. Background on Proiect Application As you are likely aware,before making this request,we sought confirmation from the City that the proposed Project is permitted by right on the Property through a request for a zoning approval letter on January 20,2022. (Attachment 1.)The Property is in the Downtown Commercial Core Specific Plan — Development Area 3 (DCCSP — DA3) where the City allows numerous medical and service uses by right, including without limitation: • medical and dental offices, including labs; • ophthalmologists and optometry services; • physical therapy facilities; • psychiatrists,psychologists, social workers, counselors and therapists offices; • animal hospitals and clinics, including boarding; • banks, financial institutions, and credit unions; and • body art facilities. (See Downtown Commercial Core Specific Plan,pp. 64-66.) 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 11 Consistent with this zoning, the Property is already surrounded by many similar medical and service uses, including without limitation: • A dialysis center on the first floor of the building on the Property; • A medical spa at 515 East First Street, Suite B; • A dental office at 513 East First Street Suite A; • A Botox clinic at 507 East First Street, Suite A; • A senior care & wellness program at 111 Fashion Lane; • A doctor's office at 161 Fashion Lane, Suite 112; and • Several dental offices at 18102 Irvine Blvd., Suites 101, 200, and 201. On February 17, 2022, City staff responded that they disagreed with this use classification and, instead, characterized our proposed use as an"out-patient clinic or medical clinic"that would require approval of a conditional use permit ("CUP"). (Attachment 2.) On March 18, 2022, we submitted an application for a CUP but urged the City to reconsider its determination that our Project needed a CUP in the first place. (Attachment 3.) Our March 18 submittal highlighted that the term "clinic"is not defined in the Zoning Code, and also highlighted the ways that the Proj ect is more akin to "medical and dental offices, including labs" and/or "psychiatrists, psychologists, social workers,counselors and therapists offices"(all of which are permitted by right)than"clinics for out-patients only, including medical clinics, healthcare centers, urgent cares" (which require CUPs). (Id.) For example, Our proposed Project would not provide any urgent or unscheduled medical services. (Id.) Instead, our patients receive scheduled talk therapy and pick up their medication at scheduled times. The March 18 submittal highlighted that the Project would not include any new exterior construction the use would be entirely inside the second floor of an existing building. (Id.) In April of 2022, we, again, implored the City to reconsider its determination that the Project required a CUP, emphasizing that"this use is for a protected class of disabled persons and it is for a service which is sorely needed." (Attachment 5.) Additionally, on April 4, 2022,we met with members of the City's planning department via a video conference to respond to any concerns the City might have about our use classification request. The City reaffirmed that our use would require a CUP. (Attachment 7.) However, the City's Community Development Director, Justina 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 12 Willkom assured us that the City would sincerely consider approving the CUP through a staff- level, administrative review process and would be able to accommodate the our timeline. At the City's request, we provided supplemental information and documents to the City between March and June of 2022. (See, e.g., Attachments 4, 6, 8, 9, 11, 12, 13, 16.) On June 3, 2022, after four months of comments and responses, we respectfully requested the City provide any remaining comments, so our submittal could finally be deemed"complete"and the City could make a final decision on our application. (Attachment 14.) We emphasized that "[t]his project benefits disabled individuals and,ultimately,the City of Tustin and the communities it serves"and underscored that "[t]here is an urgent need." (Id.) On June 17, 2022, the City responded with additional comments and continued to deem our application "incomplete." (Attachment 15.) We promptly provided the requested information and documents on June 22, 2022. (Attachment 16.) On July 21, 2022 the City notified us that application was deemed "complete," but to our dismay informed us that "staff believes the proposed use is incompatible with the surrounding uses and will be detrimental to the health, safety and general welfare based upon law enforcement data received relative to a similar use operated by the applicant in an adjacent city" (i.e., Acadia's Santa Ana CTC that we are in the process of closing). (Attachment 17 [emphasis added].) Staff told us they"will recommend the Planning Commission deny CUP 2022-0009"and told us our Project was "tentatively scheduled for a Planning Commission hearing on August 23, 2022." (Id.) We were blind-sided by this turn of events. As outlined above and illustrated in Attachments 3 through 17, we spent more than four months responding to the City's requests for additional information that drilled down on the most minute details of the Project(e.g.,providing specifications for the microwaves in our kitchen). During that time, the only comment the City ever provided about potential law enforcement concerns was in its May 13, 2022 incompleteness letter,which said"additional comments may be forthcoming from the Tustin Police Department." (Attachment 10.) In response, we offered to meet with members of the Tustin Police Department to address any questions or concerns they may have. The Tustin Police Department never took us up on that request, nor did it request additional information about our submittal.3 3 It appears the City invited a member of the Tustin Police Department (Sergeant Sarah Fetterling)to attend an "all hands" zoom meeting with us on July 7, 2022, but Sergeant Fetterling was not in attendance. We left that meeting with the impression that City staff was supportive of our Project. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 13 The City's July 21, 2022 completeness determination letter did not say which "law enforcement data" from which "adjacent city" it was referring to, nor did it explain why the data was concerning to Tustin's staff. We immediately submitted a request under the California Public Records Act("PRA") for the law enforcement data referenced in the City's letter, as well as any other records that could elucidate staff's reasoning for recommending denial. (Attachment 18.) On August 11, 2022,the City provided over 200 pages of law enforcement data'(Attachment 19), and it later provided a SharePoint link to additional documents on August 17, 2022. On August 17, 2022, Philip Teyssier requested confirmation that the City's response to our PRA request is complete. (Attachment 22.) As of the date of this letter, the City has not responded to Mr. Teyssier's request for confirmation. If there are additional records that could help understand the City's concerns about our Project, then we renew our request that the City promptly provide them. To date, we have not received any documents where any Tustin staff member expressed a written objection to our Project. To give us sufficient time to meaningfully understand and respond to staff's concerns, we requested the Planning Commission continue the public hearing for 30 days, and the Planning Commission granted that request. (Attachment 21.) The public hearing is currently scheduled to resume September 27, 2022. Our Response to City Staff's Stated Concerns As noted above, the City's July 21, 2022 letter said "staff believes the proposed use is incompatible with the surrounding uses and will be detrimental to the health, safety and general welfare based upon law enforcement data received relative to a similar use operated by the applicant in an adjacent city" specifically, Acadia's Santa Ana CTC. (Attachment 17.) Staff's recommendation is based on a misinterpretation of Santa Ana's law enforcement data. Although the data documents over 150 calls for service to (or near)the Santa Ana CTC between January of ' Specifically, we received the City of Santa Ana's computer-aided dispatch (CAD) search criteria summary sheets and corresponding police field activity logs. These records did not identify (nor segregate)incidents attributable to Acadia's CTC. Instead,they include every incident which took place in the in the general area of the CTC over a 2.5 year period. No commentary or interpretive summary of the logs was included. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 14 2020 and June of 2022, with very few exceptions,Acadia's CTC, staff, and patients were not the reason for the calls. As set forth in the table below (and Attachment 23), the vast majority of the calls relate to the guests and visitors of a low budget motel (the Sunland Motel) on the same property and an encampment of unsheltered individuals in the public alley next to the property. Attachment 19.) Reason for Calls # of Calls Homeless Encampment/Transients/Motel 97 • Acadia's representatives called for assistance in 27(?f these instances. Acadia's CTC 11 • Problems with patients (7) • Alarm system triggered (2) • Burglary (1) • Vehicle crashed into building 1 Other 11 • Medical calls for injuries or falls (2) • Traffic enforcement& accidents (2) • Stolen or inoperable vehicles (3) • Alarm systems triggered(3) • Injured mallard duck 1 No Reason Listed 44 • No report provided(18) • Unclear what, if anything,happened 26 Total 163 To be clear, our patients are not guests of the Sunland Motel, nor are they the unsheltered individuals who are camping in the adjacent alley and loitering in the CTC's parking area. Our patients are not using narcotics (or any other drugs) on the property (or elsewhere). We routinely test our patients for such use. Our patients are members of the community who are trying to come and go from their appointments peacefully and inconspicuously so they can go on with their day. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 15 We have cooperated with law enforcement in Santa Ana to report criminal activity near our CTC. Our staff has called police nearly thirty times in two and a half years to report drug use, loitering, disturbances, and unsheltered individuals in need of medical attention. When it became clear the situation could not be improved in the near future, we started looking for a new location. Our other CTCs have never experienced these kinds of problems. (See, e.g., Attachment 24.) In light of this, we urge staff to reevaluate its proposed finding that our proposed Tustin CTC would be "incompatible with the surrounding uses" and "detrimental to the health, safety and general welfare." There is simply no evidence of this. Problems with the City's CUP Requirement in this Instance People in recovery from addiction and those who provide services to them face profound fear and animosity from the public at large. Although common, Opioid Use Disorder continues to be deeply stigmatizing and misunderstood. It is a common misconception that patients of CTCs pose a danger to the community and/or will be a drain on public resources. For each of the reasons discussed below, requiring a conditional use permit ("CUP") for our proposed Project is an unnecessary hurdle that all-but-guarantees the City of Tustin will never be home to a DHCS- licensed comprehensive treatment center. First, a CUP is entirely discretionary. Even if the proposed use fully complies with all federal and state laws and local zoning codes, the City could deny it based on nebulous concerns, such as the proposed use's alleged incompatibility with the"morals" or"comfort" of"the persons residing or working in the neighborhood." (Zoning Code § 9291(c).) This is problematic because it is very common for people to view drug addiction as a moral failing,and it is even more common for people to feel uncomfortable with the prospect of a center that treats Substance Use Disorders becoming part of their community. In this case, staff has already indicated they will recommend denial of the CUP solely based on an unfortunate misunderstanding about the number of calls for service generated by Acadia's CTC in Santa Ana. Simply put, the CUP's open-ended, subjective, discretionary criteria lend themselves to denial of this Project based on unfounded fears and prejudices about individuals in recovery. Second, the City's CUP approval procedure is problematic in this instance because it requires at least one duly-noticed public hearing where any member of the public can attend and provide input on the proceedings. While we appreciate the value of public input in most instances, the openness of this process is chilling to individuals who would otherwise attend the hearing to speak in favor of the Project, such as our patients and their loved ones. Most of our patients do not want to publicly "out" themselves as people in recovery from a stigmatizing disorder. Doing so could have devastating personal and professional repercussions and subject them to harassment 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 16 and personal attacks. In circumstances like this, the members of the public who show up to the hearing will overwhelmingly be people who are opposed to the Project, resulting in deceptively one-sided testimony. The City is unlikely to hear from our Project's supporters unless it affords them the opportunity to provide sensitive testimony in a forum that protects their privacy and dignity' (and even then, many patients and their loved ones will still be too intimidated to speak out). Third, in this case, the City has determined that our CUP would need to be approved by the City's Planning Commission, subject to a potential appeal before the City Council. These are political bodies comprised of elected and appointed officials whose continued tenure depends on their responsiveness to the concerns of their constituents, even if those concerns are unfounded or prejudicial. Having political bodies serve as the ultimate decision-makers for land use approvals that inextricably involve the rights of a protected class (i.e., people with disabilities) is difficult and unfair for both the applicant and the members of the decision-making body. Finally,our experience at the August 23,2022 Planning Commission hearing on the Project is a case-in-point on why our concerns are well-founded. Because we were requesting a continuance, staff did not release a report(nor a staff recommendation) on the merits of our CUP in advance of the hearing. Staff did not make a presentation on our application at that hearing. Nevertheless, members of the public provided written and verbal comments staunchly opposing our Project solely because we would provide treatment and counseling to individuals with Opioid Use Disorder. The members of the public who opposed our Project knew nothing about it. No information had been released yet. Their opposition was based on all-too-common fears and prejudices about individuals in recovery. Without reasonable modifications to the City's approval process,we fear denial of the CUP is a foregone conclusion. Our Reasonable Modification Request The crux of our reasonable modification request is to allow Acadia to operate a CTC at the Property in a manner that complies with the City's objective zoning standards and assuages the City's concerns. We look forward to engaging with the City in an interactive process to accomplish 5 Our Project's supporters can (and likely will) submit anonymous support letters that protect their privacy (like Michael, Jeremiah, and Sarah [see Attachment 25], but the practical reality is that people who show up in person to speak inevitably have more impact than people who provide anonymous written comments. 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 17 this, but as a starting point, we wanted to offer the following proposal determine the Project is permitted by right, like other similar uses in the zone (e.g., medical and dental offices, including labs; ophthalmologists and optometry services; physical therapy facilities; psychiatrists, psychologists, social workers, counselors and therapists offices; animal hospitals and clinics, including boarding;body art facilities). This does not require any modification to the City's zoning regulations. As noted above, the City's Zoning Code does not define the term "clinic." This accommodation merely requires the City to reevaluate and change its prior use determination, which we still contend was mistaken. This proposal would allow the City to approve the Project through at a staff-level based on objective development criteria that protect staff's and the community's interests. Again, our end goal is to find a path to Project approval so we can start providing this urgently-needed service to people with disabilities in Tustin's community at the earliest opportunity. If staff has different proposals on how to get there or conditions of approval, we are receptive to them. We thank you in advance for your consideration and look forward to discussing this with you further. Very truly yours, Acadia Healthcare Company, Inc. Brian Spalding Project Manager AP Attachments: 1. Acadia's Request for By-Right Use Determination from City, Jan. 20, 2022 2. City's Response to Acadia's By-Right Use Determination, Feb. 17, 2022 3. Atomic's Request for Reconsideration of By-Right Use Determination and Submittal of Application for Conditional Use Permit("CUP"), Mar. 17, 2022 4. Atomic's Supplemental CUP Submittal, Mar. 30, 2022 5. Atomic's Request for Reconsideration of By-Right Use Determination, Apr. 7, 2022 6. Atomic's Supplemental CUP Submittal, Apr. 11, 2022 7. City's Response to Atomic's Request for Reconsideration of By-Right Use Determination, Apr. 12, 2022 2499/037605-0001 18248045.2 a09/20/22 Justina L. Willkom Erica N. Yasuda Mariam Madjlessi David E. Kendig September 20, 2022 Page 18 8. Atomic's Supplemental CUP Submittal, Apr. 15, 2022 9. Atomic's Supplemental CUP Submittal, May 6, 2022 10. City's Incompleteness Determination, May 13, 2022 11. Acadia's Supplemental CUP Submittal, May 18, 2022 12. Atomic's Supplemental CUP Submittal, May 20, 2022 13. Acadia's Request for Zoning Administrator Review of CUP, May 26, 2022 14. Atomic's Letter to City Requesting Status Update, June 3, 2022 15. City's Incompleteness Determination, June 17, 2022 16. Atomic's and Acadia's Supplemental CUP Submittal, June 22, 2022 17. City Completeness Determination, July 21, 2022 18. Atomic's PRA Request, July 21, 2022 19. City's Initial, Partial Response to PRA Request, Aug. 11, 2022 20. City's Notice of Public Hearing for CUP, Aug. 15, 2022 21. Acadia's Request for Continuance of Public Hearing, Aug. 15, 2022 22. Atomic's Request for Status Update on City's Full Response to PRA Request, Aug. 17, 2022 23. Color-Coded Chart of Santa Ana's Calls-for-Service Records 24. Testimonials from Acadia's Landlords 25. Testimonials from Acadia's Patients (with redactions) cc: Philip Teyssier, Atomic Investments, Inc. Pamela Sapetto, Sapetto Real Estate Solutions, Inc. Irma Huitron, Assistant Director-Planning Raymond Barragan, Principal Planner Leila Carver, Planning Consultant 2499/037605-0001 18248045.2 a09/20/22 ATTACHMENT 2 Community Development Department 1. m m Re e Bering what connects us. October 21, 2022 VIA E-MAIL Brian Spalding Project Manager Acadia Healthcare Company, Inc. Brian.Spalding@AcadiaHealthcare.com Re: Request for Disability-Related Reasonable Accommodation — Comprehensive Treatment Center at 535 E. First Street, Second Floor, Tustin, CA Dear Mr. Spalding. By letter dated September 20, 2022, pursuant t0 Section 35.130(b)(7)(i) of Title 28 of the Code of Federal Regulations, you submitted a formal request for a disability-related reasonable modification to the City of Tustin's policies, practices, and/or procedures ("Request") to allow Acadia Healthcare Company ("Acadia") to operate an outpatient treatment and counseling center, commonly referred to as a "comprehensive treatment center" or "CTC" at 535 E. First Street ("Project"). The Project site is zoned Development Area 3 within the Downtown Commercial Core Specific Plan ("DCCSP") and is designated as DCCSP by the City's General Plan. The CTC would serve members of the community, who rely on medicated-assisted treatment ("MAT"), counseling, and/or behavioral therapies to recover from Opioid Use Disorder. First and foremost, we acknowledge that persons receiving treatment for Opioid Use Disorder, who are not currently engaged in illegal use of drugs, are qualified individuals afforded full protection against discrimination under the American Disabilities Act (28 C.F.R. § 35.108). Furthermore, the City is obligated to make reasonable modifications to its policies, practices, or procedures—including land use planning and zoning regulations —when the modifications are necessary to avoid discrimination on the basis of disability (28 C.F.R. § 35.130(b)(7)). Nevertheless, after thorough review of your request, we have determined that a modification of the City's polices, practices, and/or procedures is not necessary in this instance. 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 9 tustinca.org Brian Spalding —Acadia Healthcare Company, Inc. October 21, 2022 Page 12 The DCCSP does not explicitly list CTCs as a permitted land use, nor is it expressly prohibited. As you know, a formal Use Determination for the proposed CTC was issued to Acadia on April 12, 2022. In accordance with Tustin City Code ("TCC") § 9298b and DCCSP § 6.1.7, the Use Determination concluded that the proposed CTC is most analogous to the medical land use category that includes clinics for out-patients only, including medical clinics, healthcare centers and urgent care, which is allowed in the DCCSP-DA-3 zone with approval of a Conditional Use Permit ("CUP"). The Use Determination was based solely on the Project's operational characteristics and without regard to the intended patients' disability. Your Request asks the City to reverse its Use Determination and find the Project is permitted by right.To do so atthis time would be improper.You were previously advised in writing that my decision was subject to appeal per TCC § 9294, and that any such appeal needed to be filed within ten (10) calendar days of the Use Determination, or by no later than April 22, 2022. No appeal from the Use Determination was made. In fact, on April 19, 2022, Acadia submitted an application requesting approval of a CUP for the CTC. The City has relied on your filing of the CUP application — and expiration of the Use Determination appeal period — to commence entitlement proceedings, including the issuance of public notices. The public has been informed about the public process that will be implemented to evaluate the Project and was invited to participate in that process several weeks ago. In fact, many members of the public have already submitted oral and written comments. Your Request asserts thatthe CUP/public hearing process is inherently problematic, and that modification is necessary to avoid prejudice. Assuming that the City will base its determinations on improper grounds rather than proper grounds is not a basis for eliminating the public's_ right to participate in the decision-making and is based on speculation. Further,the CityofGardenacase you offered as an illustration of the ADA's reasonable modification requirement itself does not conclude that a reasonable modification request precludes a CUP process, or that a CUP itself was inherently discriminatory on the basis of disability. (Behavioral Health Services., Inc. v City of Gardena, No. CV 01-07183 (RZ), 2003 WL 21750852 (C.D. Cal. Feb. 26, 2003). Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org Brian Spalding —Acadia Healthcare Company, Inc. October 21, 2022 Page 12 TCC § 9290 (Conditional Use Permits) provides a pathway for a fair hearing, and it would be improper to assume that the City's process will ultimately yield an outcome that violates the requirements of the American Disabilities Act. Based on the foregoing, your Request is respectfully denied. The City will continue to process the CUP application for the Project. We will inform you when a public hearing is noticed, and the Project is rescheduled again for consideration by the Planning Commission. Sincerely, Justina L. Willkom Community Development Director CC: Philip Teyssier, Atomic Investments, Inc. Pamela Sapetto, Sapetto Real Estate Solutions, Inc. Irma Huitron, Assistant Director — Planning Raymond Barragan, Principal Planner Leila Carver, Senior Planner Consultant Michael Daudt, Deputy City Attorney Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 . tustinca.org RUTAN ATTACHMENT 3 Alishn Patterson Direct Dial:(714)662-4663 RUTAN &TUCKER, LLP E-mail:apatterson@rutan.com October 28, 2022 VIA E-MAIL & HAND DELIVERY City Clerk's Office City of Tustin 300 Centennial Way Tustin, CA 92780 cityclerk@tustinca.org Re: Appeal of Denial of Request for Disability-Related Reasonable Accommodation - Comprehensive Treatment Center at 535 E. First Street, Second Floor, Tustin, CA Dear Gentlepeople: Our office represents California Treatment Services (a subsidiary of Acadia Healthcare Company,Inc.) ("Acadia"). We are submitting this letter on their behalf. On September 20, 2022, Acadia submitted a formal request for a disability-related reasonable modification to the City of Tustin's ("City" or"Tustin")policies, practices, and/or procedures to allow Acadia to operate an outpatient treatment and counseling center, commonly referred to as a"comprehensive treatment center" or"CTC" ("Project") at 535. E. First Street, Second Floor (the "Property"). By this letter and pursuant to Section 9294(a) of the Tustin Municipal Code ("TMC"), Acadia is appealing the decision of the Director of Community Development("Director")to deny Acadia's request. The relief Acadia is seeking is a reversal of the Director's denial of Acadia's request, or in the alternative, any other path forward that will allow Acadia to operate its much-needed CTC at the Property. For ease of reference, we have included copies of Acadia's reasonable accommodation request and the Director of Community Development's denial letter as Enclosures A and B. A photocopy of our check paying the 2022-23 Planning Division appeal fee is included as Enclosure C. We tendered the check itself to the City Clerk's Office with this appeal letter. Due to their volume, we have emailed the three Enclosures under separate cover. Duty to Make Reasonable Modifications Like all public entities, the City has a proactive duty to "operate each service,program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities."' 28 C.F.R. § 35.150(a). However, "[m]any routine t A city's zoning-related"ordinances, and any administrative processes,hearings, and decisions ... fall squarely within the category of`policies,practices, or procedures' mentioned in the [ADA's implementing]regulations."Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, Rutan & Tucker, LLP 1 18575 Jamboree Road, 911 Floor Irvine, CA 92612 1 714-641-5100 1 Fax 714-546-9035 2499/037605-0001 Orange County I Palo Alto I San Francisco I www.rutan.com 18438923.2a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 2 policies,practices, and procedures are adopted by public entities without thinking about how they might affect people with disabilities" and "[s]ometimes a practice that seems neutral makes it difficult or impossible for a person with a disability to participate." United States Department of Justice ["DOJ"] "ADA Update: A Primer for State and Local Governments,"last updated June 8, 2015 ("DOJ Primer"). When that happens,the Americans with Disabilities Act("ADA") imposes a reactive duty on public entities"to make `reasonable modifications' in their usual ways of doing things when necessary to accommodate people who have disabilities." DOJ Primer; see also 28 C.F.R. § 35.130(b)(7)(i). When a reasonable modification is necessary to avoid discrimination on the basis of disability (as is the case here), a public entity must approve it unless the public entity can demonstrate that the requested modification would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7)(i); 28 C.F.R. § 35.150(a)(3). The public entity bears the burden of proving fundamental alternation and/or undue burden. 28 C.F.R. § 35.150(a)(3). The public entity's decision must be "accompanied by a written statement of the reasons for reaching that conclusion."Id. If the entity denies a modification request on the basis that it would result in a fundamental alteration or undue burden, then the entity has a duty to "take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity."Id. Importantly, the City has never claimed that granting Acadia's reasonable modification request to allow a CTC on the Property would result in any kind of fundamental alteration and/or undue burden. The City's denial letter expresses no concerns whatsoever about fundamental alterations or undue burdens if Acadia's CTC were permitted on the Property. (See Enclosure B.) Acadia's Reasonable Modification Request Acadia is asking the City to allow a medical use (i.e., a CTC) in an area zoned for medical uses (i.e., Development Area 3 of the Downtown Commercial Core Specific Plan ["DCCSP — DAY]) and surrounded by other medical uses (e.g., a dialysis clinic, a senior care and wellness program, medical spas, doctors' offices, dentist offices, etc.). Specifically, Acadia presented its reasonable modification request as follows: "to allow Acadia to operate a CTC at the Property in a manner that complies with the City's objective zoning standards and assuages the City's concerns." (Enclosure A, p. 16.) There are many ways to accomplish this, but as a starting point, Acadia proposed that the City determine its CTC is permitted by right like many other uses in the zone that have similar purposes and operational characteristics,such as: medical and dental offices, including labs; ophthalmologists and optometry services;physical therapy facilities;psychiatrists, psychologists, social workers, counselors and therapists offices; and animal hospitals and clinics, including boarding. (Id., at p. 17.) 233 (S.D.N.Y. 1996), affd in part, 117 F.3d 37 (2d Cir. 1997). 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 3 Acadia's request underscored that they looked forward to "engaging with the City in an interactive process" and that"[i]f staff has different proposals on how to get there or conditions of approval,we are receptive to them."(Id., at pp. 16-17.)After Acadia submitted its request, Acadia (through my office to the City Attorney's Office) made multiple requests to schedule a meeting with City staff to discuss Acadia's options. The City did not respond those requests and, instead, Acadia received the Director's denial letter approximately thirty days later. (Enclosure B.) A Reasonable Modification is Necessary to Avoid Disability Discrimination The Director's denial letter determined a "modification of the City's policies, practices, and/or procedures is not necessary in this instance"because, in the Director's view, "TCC § 9290 (Conditional Use Permits) provides a pathway for a fair hearing, and it would be improper to assume that the City's process will ultimately yield an outcome that violates the requirements of the American Disability Act [sic]." (Enclosure B,pp. 1 & 3.2) This determination disregards all of the reasons for Acadia's request. (See Enclosure A,pp. 15-16.) The members of the community that Acadia's CTC will serve i.e., individuals in recovery from opioid addiction face profound fear and animosity. Although common, Opioid Use Disorder continues to be deeply stigmatizing and misunderstood. If Acadia's comprehensive treatment center served patients with a less stigmatizing medical condition (e.g., diabetes, cancer, infertility, renal failure, sports injuries, etc.),there can be little doubt that the reaction to Acadia's application from City staff and the community would have been completely different. Indeed, the City has permitted a dialysis clinic in the same building as Acadia's proposed CTC and numerous other medical uses in the surrounding area. Before submitting a reasonable modification request, Acadia dutifully and diligently followed the City's "routine policies, practices, and procedures" to see if it could navigate them without being subjected to discrimination on the basis of disability. (DOJ Primer.)Acadia's efforts were met with conspicuously long delays, unjustified scrutiny, false assurances, and highly prejudicial procedural irregularities.'Acadia's seven-month ordeal culminated in staff unilaterally scheduling a public hearing before the Planning Commission for August 23, 2022. After the hearing date was sent, staff blind-sided Acadia with the new revelation that staff would be recommending denial of Acadia's conditional use permit("CUP"). (Enclosure A,Attachment 17.) Staff's recommendation was solely based on safety concerns that staff had never previously disclosed to Acadia. (Id.)If staff had shared those concerns with Acadia earlier in the process,they would have learned they were unfounded they were entirely based on calls for service that staff erroneously attributed to Acadia's CTC in the City of Santa Ana. (Enclosure A, Attachment 23.) 2 Page 3 of the Director's denial letter is misnumbered as a second Page 2. ' Acadia's experience with the City's land use approval process is outlined in detail in its reasonable modification request. (See Enclosure A,pp. 10-13.) 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 4 Moreover, although the City could have described the CTC as a "medical clinic for out- patients only"(which is how the Director has chosen to classify the use'),the City's public hearing notice instead described the Project as a"counseling center for Opioid Use Disorder"that will be used for"on-site opioid addictions treatment."(Enclosure A,Attachment 20.) This description put Acadia's patients' stigmatizing disabilities front-and-center and played into the community's most pernicious fears and prejudices about individuals in recovery. In light of this, it should come as no surprise that the community's response to Acadia's application has been overwhelmingly negative. A summary of the kinds of written comments the City has received is below: • "Please do not degrade the neighborhood with such as facility as the Proposed Opioid Dispensary." (Email from Chong Sang Kim, Aug. 23, 2022.) • "With the homeless issue out of control it is hard to imagine why the city of Tustin would bring in an even worse problem of active drug addicts and allow them to wander around our city at will and add criminal activity similar to what they are already causing in Santa Ana on a daily basis." (Letter from the Wellington Plaza Association, Sept. 12, 2022.) • "This is not fair to the residents to put a medical clinic with unfortunate clients near people who are fortunate and look like good`marks'." (Email from Jennifer Lipkin Dimas, Sept. 13, 2022.) • "... we do NOT want and do NOT support the Opioid Center ... We do not support the type of clientele this will bring to the heart of Tustin." (Email from Melissa Baum, Sept. 22, 2022.) • "There should not be ANY methadone clinic anywhere in the City of Tustin." (Email from Dona Evans, Sept. 23, 2022.) • "I'm concerned this CUP will bring an undesirable element to the area." (eComment submitted Sept. 26, 2022 at 8:02pm.) • "We are raising a family and primarily concerned for the safety and well-being of our children (age 6 and 9). I like to encourage my children's independence,but its hard to let them bike over to a friends house on their own or to the corner store if ' Acadia continues to dispute that this is the appropriate land use classification because the term "clinic"(which Tustin's Zoning Code does not define)implies the CTC will provide urgent and/or unscheduled medical services. That is not the proposed use. Like a"medical office,"the CTC will provide medication and/or counseling to patients on an appointment basis only. 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 5 there are unsafe people lingering around. Please send the methadone clinic to a different city, not Tustin." (Email from Dede Sabey, Sept. 26, 2022.) • "We cannot believe that such a disastrous use would be considered for one second by anyone in the City ... We do not want or need almost 1,000 active drug addicts per week walking unsupervised on the streets of Tustin." (Email from Ian Carter on behalf of 40 owners and tenants of Wellington Plaza, Sept. 16, 2022.) • "The proposed move of the OPIOID Clinic to our city means more crime and violence. Being woke and progressive might be politically correct, but it does nothing for the citizens of Tustin."(Email from Luana G. Langlois, Sept.24,2022.) • "I am informed by owners of many nearby businesses that they are ... seeking to obtain CCW licenses in order to protect their families, employees, customers, clients, as well as the residential and business premises" from Acadia's proposed CTC. (Letter from Gregory N. Morse, Esq., Sept. 20, 2022.) Acadia's experience with the City's land use approval process is a text book example of the way "routine policies, practices, and procedures" that "seem[] neutral" make it "difficult or impossible for a person with a disability to participate." (DOJ Primer.) Critically, the Director's determination does not dispute that denial of Acadia's CUP is a foregone conclusion. It does not provide any assurance that the staff will reconsider its negative recommendation. It does not offer to publicly support Acadia in correcting misinformation about the volume of calls for service attributable to Acadia's Santa Ana CTC and other misperceptions about Acadia's patients and operations (e.g., Acadia's patients are not "active drug addicts" or "unsafe people"). It does not commit to discussing concerns with Acadia before using them as a basis for a staff recommendation. It does not explain what, if anything, staff will do to mitigate the trauma and terror Acadia's employees and patients will experience if they are subjected to more discriminatory comments(and threats)from members of the community.It does not even commit to a meeting with Acadia to discuss how, under these circumstances, the City can possibly ensure a"fair hearing."Instead,the Director's determination contends that, as long as the City ultimately states a non-discriminatory reason to deny Acadia's CUP, the City will have fully complied with its obligations under the ADA and tells Acadia"[w]e will inform you when the public hearing is noticed." There was no legitimate basis for the Director to determine a reasonable modification is not"necessary"to avoid discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(7)(i). This 5 Mr. Morse's letter stating that residents and business owners near the Property plan to carry concealed firearms to protect themselves from Acadia's CTC is deeply concerning. (Letter from Gregory N. Morse, Esq., Sept. 20, 2022.) 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 6 determination ignores the discrimination Acadia has already endured and will continue to experience if it has no choice but to see the CUP process through to the end. The City's Zoning Code Cannot Abrogate the Right to be Free from Discrimination The Director's denial letter also claims she cannot reconsider her land use classification (or otherwise explore any other path to approval) because Acadia did not file a timely appeal of her land use determination.6(Enclosure B,p. 2.) This improperly conflates administrative appeals of planning and zoning decisions with ADA reasonable modifications requests and violates the ADA in at least four other respects. First, the right to be free from disability discrimination (including the right to reasonable modifications to avoid discrimination on the basis of disability) cannot be extinguished by a purported failure to exhaust a local agency's administrative remedies. See, e.g.,Daubert v. City of Lindsay, 37 F. Supp. 3d 1168, 1179 (E.D. Cal. 2014); Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1334 (S.D. Cal. 1997), aff'd, 172 F.3d 876 (9th Cir. 1999). The City cannot use local bureaucratic hurdles to infringe on or curtail the ADA's protections for individuals with disabilities. See, e.g., Mary Jo C. v. New York State & Loc. Ret. Sys., 707 F.3d 144, 163 (2d Cir. 2013); Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996). Second, Acadia's reasonable modification request is "to allow Acadia to operate a CTC at the Property in a manner that complies with the City's objective zoning standards and assuages the City's concerns."(Enclosure A,p. 16.)Reconsideration of the Director's land use classification is one way to accomplish this.It is not the only way. As discussed above,if this proposal amounted to a fundamental alteration or resulted in an undue burden (which the Director did not determine), then the next step would be to"take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity." 28 C.F.R. § 35.150(a)(3). The Director made no attempt to do this. She ignored Acadia's requests for meetings to discuss its reasonable modification request, denied the request, and told Acadia her department would, once again, unilaterally set a public hearing date for a Planning Commission hearing on Acadia's CUP application. Third, to the extent the Director is concerned that an appeal of her land use classification would be untimely, the ADA's reasonable modification requirement provides many options to alleviate this concern. For example, to grant a reasonable modification, the City could waive or extend its appeal deadline for land use determinations. See, e.g., Mary Jo C., supra, 707 F.3d at 6 As a point of clarification, the reason Acadia did not appeal the Director's land use classification was because the Director falsely assured Acadia that the City's Zoning Administrator could approve a CUP for Acadia's CTC on short order. Acadia continued to object to the land use determination, but it acquiesced to the Director's direction and submitted an application for a CUP. 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 7 161-165.It could allow Acadia to file a new use classification request. If the Director was inclined to deny Acadia's request, she had an obligation to work with Acadia to explore other options (like this) as part of the interactive process. 28 C.F.R. § 35.150(a)(3). Finally, although Acadia appreciates and understands the Director's concern for the"many members of the public"who"have already submitted oral and written comments"and values input from the community, one of the core purposes of the ADA(and other civil rights laws)is to ensure that the rights of people with disabilities are not dictated by the masses. 42 U.S.C. § 12101; see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). The community's concerns about Acadia's CTC are based on misinformation about the calls for service attributable to Acadia's Santa Ana CTC and common, but unfounded, fears and prejudices about individuals in recovery from Opioid Use Disorder(i.e., the misperception that Acadia's patients are "active drug addicts" who will pose a danger to the community). In reality, Acadia operates dozens of CTCs across the country (at least nine of which are in California) without any of the health or safety issues members of the Tustin community have raised. (See, e.g., Enclosure A, Attachment 24.) In 2022, seven of Acadia's facilities in five states ranked in Newsweek's list of America's Best Addiction Treatment Centers. But these facts are likely to be lost on the members of the community who oppose Acadia's CTC. For example, the City received a written public comment on behalf of the owner and 40+ tenants of Wellington Plaza stating in no uncertain terms that they "see nothing [Acadia] can say or do that will change the position of the residents and business owners within Tustin that vehemently object to this use being in our City." (Email from Ian Carter, Sept. 22, 2022.) In circumstances like this, the ADA requires the City to protect the rights of individuals with disabilities, even if doing so is not politically popular. Reasons for Appeal As outlined above and discussed in more detail in Acadia's reasonable modification request (Enclosure A),the City and its Director have made many prejudicial mistakes in the processing of Acadia's land use applications and reasonable modification request. A non-exhaustive list is summarized below for ease of reference. 1. The City's planning staff subjected Acadia's application to heightened level of scrutiny that it would not have used if Acadia's CTC served patients with a less stigmatizing medical condition (e.g., diabetes, cancer, infertility, renal failure, sports injuries, etc.). 2. The Director falsely assured Acadia that, if Acadia waived its right to an appeal of her land use determination, the City's Zoning Administrator could approve Acadia's CUP on an expedited basis. After Acadia acquiesced to the Director's direction, the Director held it against Acadia by denying their reasonable 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 8 modification request on the basis that Acadia declined to appeal her land use determination. 3. The City's planning staff ignored and/or denied Acadia's requests for meetings with City staff to discuss its Project. In particular, the City's planning staff declined Acadia's offers to meet with members of Tustin's Police Department to answer any questions they may have, and then later informed Acadia staff would recommend denial of Acadia's CUP based on safety concerns. 4. The City's planning staff did not communicate their concerns about the CTC to Acadia in a timely fashion, nor give Acadia any opportunity to respond to them before unilaterally scheduling and noticing a public hearing with an anticipated staff recommendation of denial. 5. The Director's rationale for recommending denial of Acadia's CUP was entirely based on a misinterpretation about calls for service data for Acadia's Santa Ana CTC. The Director erroneously believed Acadia's Santa Ana CTC had generated hundreds of calls for service in a two and a half year period. In reality, Acadia generated approximately ten calls for service during that period. 6. The City did not respond to Acadia's requests for an explanation of, information, or documents that outline the basis for staff's anticipated recommendation that the Planning Commission deny Acadia's application for a CUP.7 7. Planning staff used language in their public hearing notice that unnecessarily highlighted that Acadia's patients would be individuals in recovery from Opioid Use Disorder. This decision virtually guaranteed widespread fear of and opposition to Acadia's project. 8. The Director denied Acadia's reasonable modification request for wholly illegitimate reasons (e.g., failure to appeal the Director's land use determination and deference to members of the community opposed to the Project). 9. The Director failed to engage in any semblance of an interactive process to evaluate whether there are ways to approve Acadia's request or otherwise find a path The owner of the Property (Phillip Teyssier)has submitted requests under the California Public Records Act ("PRA") to research this. Other than the Director's July 21, 2022 completement determination (Enclosure A, Attachment 17), the City has never provided a single record memorializing any concern about Acadia's CTC. The City has never confirmed that it has provided any and all disclosable public records that are responsive to Mr. Teyssier's PRA requests. 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 9 forward that will allow Acadia to provide a much-needed service to individuals with disabilities in Tustin. 10. The Director claimed the City's CUP process can provide a "a pathway for a fair hearing" but did not explain how the City will accomplish this in light of the discrimination Acadia has already experienced and will continue to experience if Acadia sees this highly-discretionary and publicly-scrutinized process through to the end. 11. The Director did not dispute that denial of Acadia's CUP is a foregone conclusion. She merely assured Acadia that the impending denial will be based on "proper grounds." The ADA requires the City to proactively and reactively ensure its programs, services, and activities (including its zoning) accessible to people with disabilities. Viewed in its entirety, this record illustrates that the City's planning staff and Director have done the opposite in this instance. From the beginning,they have been looking for reasons to deny Acadia's request to operate a CTC in Tustin. Relief Sought As a threshold matter, Acadia acknowledges that Section 9294(a) of the Tustin Municipal Code ("TMC") states that appeals of"[a]ny decision of the Director of Community Development or the Zoning Administrator" may be heard by the Planning Commission at a public hearing, but in these unique circumstances, this appeal process is problematic for all of the same reasons the CUP process is problematic. (See Enclosure A, pp. 15-16.) For example, like Acadia's CUP, supporting Acadia's appeal of the Director's denial of Acadia's reasonable modification request would require Acadia's patients to publicly "out" themselves as people in recovery with a stigmatizing disorder. The Planning Commission is an appointed political body that,justifiably, will face tremendous political pressure to respond to the concerns of their constituents. The public comment on Acadia's CUP application(some of which is summarized above)has been particularly acrimonious. For these reasons,Acadia hereby submits another reasonable modification request that the appeal of its reasonable accommodation request be heard and decided by either: (1) a third party hearing officer with ADA expertise who Acadia has a role in selecting (with compensation split equally); or (2) a member of City staff with ADA expertise who has had no involvement whatsoever in the underlying proceedings. Acadia further requests that, if public input is taken at the appeal hearing,that the City meet and confer with Acadia on ways to protect the safety,dignity, and privacy of Acadia's supporters (staff,patients, and their loved ones). 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 10 In addition, as noted above,the relief Acadia is seeking through this appeal is a reversal of the Director's denial of Acadia's request, or in the alternative, any other path forward that will allow Acadia to operate its much-needed CTC at the Property.In the immediate short term,Acadia requests an "all hands" meeting with Acadia's team, the owner of the Property, and legal counsel for all parties to discuss Acadia's options moving forward. Legal Repercussions if Appeal is Denied Acadia has no desire to engage in litigation with the City. It wants to work cooperatively with the City to address any concerns and find a solution that will allow it to provide a much- needed service to Tustin's community. But after nearly a year, Acadia has reached a breaking point. The Director has not stated any valid basis to recommend denial of Acadia's CUP, nor to deny Acadia's reasonable modification request. If the City does not recognize and start upholding its obligations under the ADA (and related laws), Acadia will have no choice but to file a legal action to enforce its rights and ensure its patients have access to the treatment they need. To keep this process moving forward, Acadia requests the above-described "all hands" meeting by December 1, 2022, and an appeal hearing before January 1, 2023. Acadia has been seeking approval of its CTC since January of 2022. Pushing these decisions out any further amounts to denial by delay. Please do not hesitate to contact me directly if you have any questions or would like to discuss. We look forward to the City's response. Respectfully submitted, RUTAN & TUCKER, LLP Alisha Patterson AP Enclosures: A. Acadia's Reasonable Modification Request B. City's Letter Denying Reasonable Modification Request C. Photocopy of Check for $1,050 for 2022-23 Planning Division Appeal Fee cc: Via email only: Brian Spalding, Acadia Healthcare, Inc. Diana Wydo, Acadia Healthcare,Inc. 2499/037605-0001 18438923.2 a10/28/22 RUTAN RUTAN 6 TUCKER,LLP City Clerk's Office October 28, 2022 Page 11 Daniel Hymas, Acadia Healthcare, Inc. Philip Teyssier, Atomic Investments,Inc. Justina L. Willkom, Community Development Director Erica N. Yasuda, City Clerk& ADA Compliance Officer Mariam Madjlessi Community Development ADA Liaison Irma Huitron, Assistant Director-Planning Raymond Barragan, Principal Planner Leila Carver, Planning Consultant David E. Kendig, City Attorney Michael Daudt, City Attorney's Office 2499/037605-0001 18438923.2 a10/28/22 DocuSign Envelope ID: 1 D130931334C16-430E-ADAA-E2D1 E40C16CB ATTACH M ENT 4 r�"r, Community Development Department L Remembering h nn w at connects us. November 28, 2022 VIA E-MAIL Alisha Patterson apatersonPrutan.com Rutan &Tucker, LLP 18575 Jamboree Road, 9` Floor Irvine, CA 92612 Re: Appeal of Denial of Request for Disability-Related Reasonable Accommodation — Comprehensive Treatment Center at 535 E. First Street, Second Floor,Tustin, CA Dear Ms. Patterson: I am writing in response to the written appeal dated October 28, 2022 ("Appeal"), submitted by your office on behalf of California Treatment Services (a subsidiary of Acadia Healthcare Company, Inc.) ("Acadia"). To date, Acadia has submitted two formal requests for disability-related reasonable modifications related to Acadia's proposed operation of an outpatient treatment and counseling center, commonly referred to as a "comprehensive treatment center" or "CTC" ("Project") at 535 E. First Street ("Property"). As we understand them,the two requests are as follows: 1. First Request. By letter dated September 20, 2022, Acadia submitted its request to "allow Acadia to operate a CTC at the Property in a manner that complies with the City's objective zoning standards and assuages the City's concerns."Central,to this request was Acadia's proposal that the City determine the Project is permitted by right. This proposal would reverse the City's April 12, 2022 Use Determination, which concluded that the proposed CTC is most analogous to the medical land use category that includes clinics for out-patients only, including medical clinics, healthcare centers and urgent care, which is allowed with approval of a Conditional Use Permit ("CUP") in the DCSP-DA-3 zone, within which the Property is located. This First Request was denied by the Community Development Director by letter dated October 21, 2022, and is the subject of the Appeal. 2. Second Request. Acadia submitted another reasonable modification request on October 28, 2022 asking that the Appeal be heard and decided by either: (1) a third-party hearing 300 Centennial Way,Tustin, CA 92780 9 714-573-3000 9 tustinca.org DocuSign Envelope ID: 1 DB093B3-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 2 officer with ADA expertise who Acadia has a role in selecting, or (2) a member of City staff with ADA expertise who has had no involvement whatsoever in the underling proceedings. Additionally, Acadia requested that if public input is taken at the Appeal hearing,that the City meet and confer with Acadia on ways to protectthe safety, dignity, and privacy of Acadia's supporters. The aspects of the Second Request that ask the City to preclude public input or participation and to preempt decision-making by public officials tasked with hearing such appeals is both unreasonable and unnecessary. Acadia has not demonstrated that granting the request is necessary to avoid discrimination. Instead, Acadia erroneously assumes that the Tustin Planning Commission is incapable of deciding the appeal on non-discriminatory grounds. The City will articulate for the Commission the legal parameters within which a decision on this Appeal may properly be considered. Your client assumes, without evidence or basis, that the Planning Commission will be incapable of operating within legal parameters, and on the basis of that erroneous assumption, requests wholesale abandonment of the legal appeal process. Therefore, the Second Request is denied because it too seeks a broad, unnecessary waiver of the applicable process for handling of the Appeal. In addition,the City currently has no third party hearing officer under contract who has been designated with the appropriate authority, so there is no mechanism in place for referring the decisions to a third party hearing officer that doesn't itself involve an approval process conducted in a public meeting. Described in further detail below, the City will take specific steps to ensure the Appeal will be subject to a lawful review process and to avoid unlawful discrimination in the decision-makers' evaluation process. Request for All Hands Meeting As outlined in our response to your reasons for appeal below, there have been several miscommunications and conflicting recollections of past conversations between the parties. To avoid any further inconsistencies in the record, going forward, the City prefers to communicate about this project in writing to minimize further miscommunications. To this end, the following corrections of the record are provided below along with next steps. City's Response to Acadia's Reasons for Appeal The City offers the following response to Acadia's list of 11 reasons for appeal: 1. The City's planning staff subjected Acadia's application to heightened level of scrutiny that it would not have used if Acadia's CTC served patients with a less stigmatizing medical condition (e.g., diabetes, cancer, infertility, renal failure, sports injuries, etc.). Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org DocuSign Envelope ID: 1 DB093B3-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 13 This is inaccurate. Every development application is unique. Staff's assessment differs on a case-by-case basis based on the scope and operational characteristic of a proposed project. There is no uniform standard of scrutiny. 2. The Director falsely assured Acadia that, if Acadia waived its right to an appeal of her land use determination, the City's Zoning Administrator could approve Acadia's CUP on an expedited basis.After Acadia acquiesced to the Director's direction, the Directorheld it against Acadia by denying their reasonable modification request on the basis that Acadia declined to appeal her land use determination. This is inaccurate. While a possibility of consideration of the CUP by the Zoning Administrator was discussed, there was no commitment to this path. At no time was Acadia encouraged to waive its right to an appeal of the Use Determination. 3. The City's planning staff ignored and/or denied Acadia's requests for meetings with City staff to discuss its Project, In particular, the City's planning staff declined Acadia'g offers to meet with members of Tustin's Police Department to answer any questions they may have, and then later informed Acadia staff would recommend denial ofAcadia'g CUP based on safety concerns. This is inaccurate. Multiple meetings with the applicant, property owner, and applicant's consultant occurred during the course of the application review. At these meetings numerous concerns from all departments including safety concerns from the Police Department were discussed. It is typical for Community Development Department staff to convey and transmit comments to and from all operating departments and/or other agencies to an applicant. 4. The City's planning staff did not communicate their concerns about the CTC to Acadia in a timely fashion, nor give Acadia any opportunity to respond to them before unilaterally scheduling and noticing a public hearing with an anticipated staff recommendation of denial. This is inaccurate. City staff scheduled and noticed the public hearing in response to pressure from the property owner to bring the matter to hearing. Acadia was notified of staff's intent to recommend denial of the Project when the meeting date was set. Once scheduled, City staff continued the public hearing at the request of the applicant. On August 11, 2022, the City provided the property owner and applicant data related to police calls for service and incidents at Acadia's Santa Ana CTC (2101 E. 1st Street). 5. The Director's rationale forrecommending denial of Acadia's CUP was entirely based on a misinterpretation about calls for service data forAcadia's Santa Ana CTC. The Director erroneously believed Acadia'g Santa Ana CTC had generated hundreds of calls for Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org DocuSign Envelope ID: 1 DB093B3-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 14 service in a two and a half year period, In reality, Acadia generated approximately ten calls forservice during thatperiod. We dispute Acadia's interpretation of the data. Three spreadsheets and three corresponding charts are attached, which identify with specificity the calls for service attributable to Acadia's Santa Ana CTC (2101 E. 1st Street) between 1/1/20 and 6/1/22 as compared to those calls attributed to the surrounding commercial center and Sunland Motel (2031 E. 1st Street and 2111 E. 1st Street). While City staff remains open to the applicant's thoughts on the topic, Acadia's interpretation of the calls for service appears to substantially understate the calls for service attributable to its existing operations in Santa Ana. 6. The City did not respond to Acadia's requests for an explanation of, information, or documents that outline the basis for staff's anticipated recommendation that the Planning Commission deny Acadia's application for a CUP. This is inaccurate. As stated above, On August 11, 2022, the City provided the property owner and applicant data related to police calls for service and incidents at Acadia's Santa Ana CTC (2101 E. 1st Street). A further explanation and/or documentation was not provided because Acadia requested the hearing be deferred to a date uncertain and submitted its own analysis of the calls for service, so the relevant agenda materials remain in draft form and have not been finalized or released publicly. 7. Planning staff used language in theirpublic hearing notice that unnecessarily highlighted that Acadia's patients would be individuals in recovery from Opioid Use Disorder. This decision virtually guaranteed widespread fear of and opposition to Acadia's project. This is inaccurate.The language "used" by Planning staff in the public hearing notice tracked the language provided byAcadia in its application materials. The language is not City staff's; it was your client's description of the proposed use. Presumably,your client depicted it accurately, and the City's notice of the application should do so as well. 8. The Director denied Acadia's reasonable modification request for wholly illegitimate reasons (e.g., failure to appeal the Director's land use determination and deference to members of the community opposed to the Project). We dispute this assertion. As emphasized in the Director's October 21 letter itself, the Director determined that the requested modification of policies, practices and procedures is not necessary, and that the request (like the most recent request) is based on the erroneous assumption that the City will base its determinations on improper grounds rather than proper grounds. The Director's denial of the First Request was properly made. 9. The Director failed to engage in any semblance of an interactive process to evaluate whether there are ways to approve Acadia'g request or otherwise find a path forward that will allow Acadia to provide a much-needed service to individuals with disabilities in Tustin. Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org DocuSign Envelope ID: 1 DB093B3-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 15 This is inaccurate. The City maintains that the requested reasonable modification is not necessary to avoid discrimination on the basis of disability. The City continues to identify the path forward — via the CUP approval process — and your client has not established that abandoning that path is necessary to avoid discrimination on the basis of disability. The path forward sought by Acadia is a complete abrogation of the processes established by the TCC. This is unreasonable and unnecessary because the proposed use may be approved at the Property pursuant to a CUP. Acadia takes exception to the requirement for a CUP but has not shown that requiring the CTC to obtain a CUP, or any other discretionary land use approval, is prohibited by the ADA. 10. The Director claimed the City's CUP process can provide a a path way for a fair hearing" but did not explain how the City will accomplish this in light of the discrimination Acadia has already experienced and will continue to experience if Acadia sees this highly- discretionary and publicly-scrutinized process through to the end. This is inaccurate.Acadia continues to erroneously assume thatthe appointed public officials responsible for considering the CUP are incapable of making a non-discriminatory land-use decision. In an effort to provide your client further assurances, the City will offer the following admonishment prior to consideration of the appeal and, if there is a Planning Commission hearing on the CUP, prior to the hearing on the CUP: "If approved,the proposed CTC would exclusively serve persons receiving treatment for Opioid Use Disorder. To be a patient at the CTC, an individual cannot be actively using illegal drugs. Persons receiving such treatment are "qualified individual[s] with a disability" afforded full protection under the Americans with Disabilities Act ("ADA"). And the ADA prohibits the City from discriminating against qualified individuals in making land use decisions. In considering this application and the appeal, the Planning Commission may not treat the proposed CTC differently than it would any other medical clinic. It may not base its decision on the fact that patients at the CTC will be receiving treatment for Opioid Use Disorder. Nor may unsubstantiated fears, prejudice, or stereotypes related to persons recovering from Opioid Use Disorder form the basis of the Planning Commission's decision. [The following sentence will be added to the admonishment if the appeal results in a public hearing on the CUP application:] However,the Planning Commission may assess the operational characteristics of the proposed use and its potential impacts — without reference to the persons receiving treatment at the CTC — and make a determination based on the criteria set forth at TCC § 9291(c)." Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org DocuSign Envelope ID: 1 DB093B3-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 16 This admonishment will be repeated several times, and in the following manners: • Posted with the public hearing notice; • Published online with the meeting agenda; and • Read aloud by legal counsel prior to the opening of the hearing(s) for the CUP. Additionally, in an effort to assuage your client's concerns that a staff recommendation of denial may improperly prejudice the Commission, City staff will prepare its Staff Report without a recommendation for either denial or approval of the proposed CTC. Instead, the staff recommendation will identify options for the Commission to approve or deny the application. 11. The Director did not dispute that denial ofAcadia'g CUP is a foregone conclusion. She merely assured Acadia that the impending denial will be based on "proper grounds." This is inaccurate. Acadia itself is the only one suggesting that denial of Acadia's CUP is a foregone conclusion. The City maintains that the application can and will be subject to fair and non-discriminatory consideration. In other words, denial of Acadia's CUP is not a foregone conclusion. Appeal Process The Appeal will be set for consideration by the Planning Commission on December 13, 2022. Alternatively,the Appeal maybe scheduled for January 10, 2023 if that date is preferable to your client. Issues to be decided on appeal will include: 1. Whether reasonable modifications to the City's policies, practices, or procedures are necessary to avoid discrimination on the basis of disability? And if so, 2. Which modifications are necessary? The following modifications are included in the First Request: a. "to allow Acadia to operate a CTC at the Property in a manner that complies with the City's objective zoning standards and assuages the City's concerns." b. "determine the Project is permitted by right, like other similar uses in the zone (e.g., medical and dental offices, including labs; ophthalmologists and optometry services; physical therapy facilities; psychiatrists, psychologists, social workers, counselors and therapist offices; animal hospitals and clinics, including boarding; body art facilities)...allow[ing] the City to approve the Project through at a staff- level based on objective development criteria that protect staff's and the community's interests." Community Development Department 300 Centennial Way,Tustin, CA 92780 • 714-573-3000 • tustinca.org DocuSign Envelope ID: 1 D13093133-4C16-430E-ADAA-E2D1 E40C16CB 535 First Street- Response November 28, 2022 Page 17 Because the Appeal pertains to a request for disability-related reasonable modification, it will be considered without a public hearing. (TCC § 9278 d.3.). As required by the Brown Act, the meeting will be open to the public, and those members of the public who have requested notice related to the application will continue to receive notice. The admonitions identified in item 10 above will be provided, the letters submitted on behalf of your client will be included with the staff report, and your client may present evidence in support of the requests in writing and verbally. Please confirm and respond with your preference of meeting date for the Appeal to be heard by the Planning Commission by close of business on Friday December 2, 2022. If no response is received, the City will proceed with the January 10, 2023 date. Sincerely, DocuSigned by: JustiDna L62WiLikom, Director Community Development Department City of Tustin Enclosures: cc: (via e-mail only) Daniel Hymas, Acadia Healthcare, Inc. Philip Teyssier, Atomic Investments, Inc. Erica N.Yasuda, City Clerk &ADA Compliance Officer Mariam Madjlessi Community Development ADA Liaison Irma Huitron, Assistant Director - Planning Raymond Barragan, Principal Planner Leila Carver, Planning Consultant David E. Kendig, City Attorney Michael Daudt, Assistant City Attorney Community Development Department 300 Centennial Way,Tustin, CA 92780 9 714-573-3000 tustinca.org