HomeMy WebLinkAbout3.7.23 - ITEM 9Appeal of Planning Commission’s
Decision to Deny Request for
Disability-Related Modification of
City Policies, Practices, and/or
Procedures
Regular Business Item #9 –City Council Meeting –March 7, 2023
Request
Atomic Investments,Inc.(“Appellant”or “Atomic”)
appeals from the Planning Commission’s denial of a
request for a disability-related reasonable modification
of the City’s policies,practices,and/or procedures to
allow California Treatment Services,a subsidiary of
Acadia Healthcare Company,Inc.to operate an
outpatient treatment and counseling center
(“Comprehensive Treatment Center”or “CTC”)at a
commercial property owned by Appellant located at 535
E.First Street,Second Floor,Tustin,CA.
2
Americans
with
Disabilities Act
(ADA)
Advisory
Statement
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 ADA.
The ADA prohibits the City from discriminating against
qualified individuals in making land use decisions.
3
Americans
with
Disabilities Act
(ADA)
Advisory
Statement
In considering this application and the appeal,the City
Council 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 City Council’s decision.
4
Proposed Use
Operation of 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
5
Background
February 17 ,2022 –Zoning letter determination that the
CTC use is most similar to “clinics for outpatients only,”
which requires a Conditional Use Permit (“CUP”).
March 18,2022 –Acadia requested reconsideration of the
Zoning letter determination,asserting that the CTC use is
most similar to “medical and dental offices and labs,”
which are permitted by right.
April 12,2022 –Community Development Director issued
a formal land use determination that CTC is most similar
to “clinics for out-patients only,”which requires a CUP.
April 19,2022 -Applicant filed a CUP application for a CTC
at 535 East First Street.
6
Americans
with
Disabilities Act
(ADA)
Individuals receiving treatment for Opioid Use Disorder,
who are not engaged in illegal drug use,are classified as
persons with a disability under the ADA.
City must make reasonable modifications to its policies,
practices,or procedures –including land use planning
and zoning regulations –if modifications are necessary
to avoid discrimination on the basis of disability.
7
Request
for Reasonable
Modification
September 20, 2022:
Acadia and 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 September 20 th letter also requested that the
City again revisit the Use Determination and
determine that the CTC is permitted by right.
8
Director’s
Denial of the
Requested
Modification
October 21, 2022:
Requested modification is not necessary;
CUP process provides pathway for a fair
hearing.
9
Appeal to
Planning
Commission
On October 28,2022 ,Acadia filed a formal appeal to
the Planning Commission of the Director’s denial of the
request for disability-related reasonable modification
of policies,practices,and/or procedures to allow Acadia
to operate an outpatient treatment and counseling
center.
“The relief Acadia is seeking is 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.”
10
Planning
Commission
Denial of
Request
On July 10,2023 ,the Planning Commission considered
the request for disability-related reasonable
modification of City policies,practices,and/or
procedures to allow Acadia to operate an outpatient
treatment and counseling center.
4-1 Vote to deny the request for disability-related
modification,finding that a modification of City
policies,practices,and/or procedures is not necessary
to avoid discrimination on the basis of disability.
11
Appeal to City
Council
On January 19,2023 ,Philip Teyssier of Atomic Investments,
Inc.,filed a formal appeal to the City Council of the Planning
Commission’s denial of the request for disability-related
modification of policies,practices,and/or procedures
related to the proposed out-patient treatment and
counselling center for opioid use disorder utilizing
medicated assisted treatment (MAT)in combination with
counseling and behavioral therapies at 535 E.First Street,
Second Floor.
Atomic requests that “the decision [of the Planning
Commission]be reversed and that the request for disability-
related modification of policies,practices and/or procedures
be approved…”
12
Atomic’s Basis
for Appeal
13
1.“The disability accommodation request must be granted per Federal law
and the City has failed to correctly claim why it does not have to
accommodate the request.”
Response: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.A modification is not necessary
in this instance because the CUP process provides a pathway for a fair
hearing;the City is capable of considering the application without
discriminating based on the protected status of the clients of the
proposed CTC.
Atomic’s Basis
for Appeal
14
2.“City staff has out and out refused to meet with the applicant or Atomic
to discuss the request.”
Response:Multiple meetings with Acadia,Acadia’s consultant and
Appellant occurred during the course of the application review.
However,as noted in the Director’s written response to Acadia’s appeal
letter,there have been several miscommunications and conflicting
recollections of past conversations between the parties.To avoid any
further inconsistencies in the record,the City opted to communicate
about the proposed CTC in writing to minimize further
miscommunications.
Atomic’s Basis
for Appeal
15
3.“From our Request of Zoning Confirmation in February 2022 ,the City has
delayed every iteration of the planning process,erroneously made claims of
our ADA accommodation request as not being timely,and have been
prejudiced due to the type of clinic.”
Response:The City has not delayed the planning process,and
Appellant has not provided any support for this claim.Staff has not
asserted that the ADA request for disability-related modification is time
barred,and have provided for full consideration of the request as
evidenced by the Director’s October 21,2022 denial,the Planning
Commission’s July 10,2023 denial,and these proceedings before the
City Council.Appellant has not provided any support for its assertion
that it has been prejudiced due to the type of clinic proposed.
Atomic’s Basis
for Appeal
16
4.“[T]he city attorney’s office promised to provide public records as they
became available,but failed to do so.”
Response:Documents were compiled and reviewed over several
weeks in response to Appellant’s request for public records.All non-
exempt public records that are responsive to the request have been
provided to Appellant.
Atomic’s Basis
for Appeal
17
5.“After the motion to deny the proposed accommodation request,the
planning commission chair did not follow proper procedures in allowing any
discussion on the motion on the floor,instead,pushed ahead for a vote.”
Response:The Planning Commission Chairperson did not violate any
procedural requirements in calling for a vote on the motion to deny the
requested disability-related modification.Any Commissioner desiring to
discuss the motion further prior to the vote could have done so,but none
were so inclined.Furthermore,even assuming there was a procedural
error,which there was not,Appellant has failed to articulate how he was
prejudiced in any way as a result.
Appeal is
limited to the
Request for
Disability-
Related
Modification.
18
Determine whether a
reasonable modification
of the City’s policies,
practices and/or
procedures is necessary
If Yes, see options below If No, CUP required
Deem the project
“permitted by Right”
and subject to approval
by staff w/o CUP
Director to approve a
conditional permit w/o
public hearing, but with
COA
Approve other
reasonable
modifications
OPTIONS