HomeMy WebLinkAboutACADIA LETTERRUTAN
RUTAN TUCKER, LLP
January 10, 2023
City of Tustin Planning Commission
phi I
Alisha Patterson
Direct Dial: (714) 662-4663
E-mail: apatterson@rLltan.com
Re: Item #4 on Agenda for Planning Commission's January 10, 2023 Meeting
Conditional Use Permit 2022-009 for Comprehensive Treatment Center (CTC)
535 E. First Street, 2nd Floor, Tustin, California 92780 —
Honorable Members of the Planning Commission:
Our office represents California Treatment Services (a subsidiary of Acadia Healthcare
Company, Inc.) ("Acadia"). We are submitting this letter on their behalf regarding Item #4 on the
agenda for your meeting tonight — Acadia's Conditional Use Permit 2022-009 ("CUP") for a
comprehensive treatment center or "CTC" at 535. E. First Street, Second Floor (the "Property").
Itis important that the Planning Commission's decision on Acadia's application for a CUP
be based on accurate and complete information. Despite numerous requests, staff outright refused
to meet or have a call with Acadia's representatives to discuss their concerns about Acadia's
proposed CTC. (See, e.g., Enclosures 1, 2, and 3 to this letter.) The Agenda Report for Item #4
confirms staff s concerns are primarily based on: (1) pernicious stereotypes about people in
recovery from Opioid Use Disorder (e.g., they pose a danger to children); and (2) misinformation
about the volume of calls for service attributable to Acadia's CTC in the City of Santa Ana (i.e.,
the Agenda Report claims Acadia's Santa Ana CTC generated 164 calls for service in a 29 month
period when, in fact, the police reports show only 11 of those calls were attributable to the CTC).
This letter supplements and corrects incomplete and inaccurate information in the Agenda
Report and proposes conditions of approval that address staff's stated 'Concerns without running
afoul of the California Department of Health Care Services' ("DHCS"), licensing requirements for
CTCs, or Acadia's constitutional rights to due process and to be free from conditions that do not
bear any nexus or rough proportionality to its proposed use.
In connection with this CUP, Acadia has submitted a request for a disability -related
reasonable modification under the Americans with Disabilities Act ("ADA"). The Planning
Commission will consider Acadia's ADA request as Item. 43 on the agenda for its January 10,
2023 meeting. By this letter, Acadia incorporates Attachment D1 and Attachment F to the Agenda
Report for Item #3 (i.e., Acadia's ADA request and appeal of the Director's denial of its ADA
I With its 25 attachments, Attachment D is 554 pages long, but the pdf includes bookmarks to
help readers navigate the document.
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City of Tustin Planning Commission
January 10, 2023
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request) into the record for the CUP (Item #4). As discussed below, these Attachments contain
information and documents that are critical to the Planning Commission's deliberations on the
CUP.
Acadia is a leading provider of behavioral healthcare services across the United States. It
has a proven track record of being a good neighbor and conscientious member of the community.
It operates more than 150 CTCs across the country (at least fourteen of which are in California).
In 2022, seven of Acadia's facilities in five states ranked in Newsweek's list of America's Best
Addiction Treatment Centers.
For over a year now, Acadia has been working diligently to obtain Tustin's approval of an
outpatient treatment and counseling center, commonly referred to as a '*comprehensive treatment
center" or "CTC" on the second floor on an existing building on the Property. The path to approval
of a much-needed treatment center for individuals with disabilities should never have been this
lengthy or difficult. There is an urgent — and soon-to-be unmet' — need for a CTC in Tustin. The
Property is in an area zoned for medical uses (i.e., Development Area 3 of the Downtown
Commercial Core Specific Plan ["DCCSP – DA3"]) where the City permits medical and
counseling offices by right. The Property is surrounded by other medical uses, including a dialysis
clinic in the same building as Acadia's proposed CTC. The obvious difference between these other
medical uses and Acadia's CTC is that the CTC will serve patients with a deeply stigmatizing and
misunderstood disability — Opioid Use Disorder (i.e., people who are in recovery from opioid
addiction). If Acadia's CTC 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 very
different.
Even though a medical/counseling office is permitted by right in the DCCSP – DA3 zone,
the City's Director of Community Development deternimed the use would require a conditional
use permit (CUP). The Director's use determination is wrOD R,3 but based on staff s direction and
in an effort to cooperate with staff in good faith, Acadia Id not immediately appeal the use
determination. In connection with Acadia's ADA request (Item #3), the Planning Commission can
' As discussed in Acadia's reasonable modification request (Attachment D to the Agenda Report
for Item #3) and appeal (Attachment F to the Agenda Report for Item #3), Acadia is closing its
Santa Ana CTC, which is located in a problematic area next to a budget motel and a large
encampment of unsheltered individuals in the adjacent public alley.
3 Instead of characterizing Acadia's CTC as a medical/counseling office (which is exactly what
the CTC is), the Director characterized Acadia's CTC as a "medical clinic.," which is not defined
in the City's Zoning Code and is grouped with medical uses that see patients on an emergency or
drop-in basis (like urgent cares), rather than by appointment, like Acadia's CTC.
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(and should) determine Acadia's CTC is a "medical clinic" that is permitted by right (in which
case, approval of a CUP is not necessary).
The Agenda Report and draft denial resolution (Attachment L) focus primarily on calls for
service data from the City of Santa Ana in the area surrounding Acadia's Santa Ana CTC as the
basis for staff's concerns about compatibility with the surrounding neighborhood, safety,
nuisances, and impacts to schools. Again, staff outright refused to discuss any of these concerns
with Acadia. (See, e.g., Enclosures 1-3 to this letter.) If it had, Acadia could have shown staff there
are at least three fatal problems with staff's analysis.
First, staff disregarded uncontested evidence Acadia submitted in comiection with its ADA
request that shows Santa Ana police reports attributed very few calls — only eleven calls out of
163 in a 29 month period — to Acadia's CTC. (See Attachment D to the Agenda Report for Item
#3, pp. 13-15 and Attachments 19 and 23.)
Reason for Calfs
# of 'Cans
Homeless Erica mpmentt"Transieiitsll\-IoteI
97
-Acadia's repieseatatives called fol'
assistance ia 27 offfiese iiistances.
Acadia's CTC
11
•
Problems with patients (7)
•
Alann system triggered (2)
•
Burglaq (1)
•
V ehicle crashed into building (1)
Other
11
•
Medical calls for injuries or falls (2)
•
Traffic enforcement &- accidents (2)
•
Stolen or inoperable vehicles (3)
•
.lanai systems triggered (3)
•
tat j ared mallard duck (1)
No Reason Listed
44
•
No report provided (18)
•
TTiiclear-tA-hat.ifali7tliiikg.liappeiied(26)
Total
163
Santa Ana police reports attributed the vast majority of the calls at the site of Acadia's CTC
(at least 97) to the budget motel and homeless encampment next to the CTC. (See Attachment Q
to the Agenda Report for Item #3, p. 14 and Attachment 23.) In at least 27 of those instances,
members of Acadia's staff were the ones calling for service because people at the motel and
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encampment were committing crimes (e,g., using narcotics) or experiencing medical emergencies
(e.g., overdoses). (1d.) Those individuals are not Acadia's staff or patients. Acadia has a strict
loitering policy that it enforces with private security.
Second, the Agenda Report acknowledges that other properties near Acadia's Santa Ana
CTC (i.e., the motel and shopping center next door) are also linked to high numbers of calls for
service. For example, there are a substantial number of calls for service linked to the former Flame
Broiler in the shopping center next to Acadia's CTC, (See Attachment J, to Agenda Report for Item
#4.) But the Agenda Report rightftilly does not attribute those calls for services to the businesses
on those properties. The same is true for Acadia's CTC. The fact that the Agenda Report presumes
— despite strong evidence to the contrary —that the large number of calls for service must be
attributable to Acadia's CTC but does not do so for any other businesses in the area (e.g., the motel,
restaurants, dry cleaners, etc.) arises from all -too -common biases against people in recovery.
Finally, the Agenda Report ignores evidence Acadia submitted in connection with its ADA
request that its other 150 CTCs have no problems with criminal or nuisance activity. Acadia
provided letters from numerous landlords attesting to this. (See Attachment 24 to Attachment D.)
In other words, staff's assessment of Acadia's "past performance" is myopically focused on a
single CTC (out of 151 CTCs nationwide, 14 of which are in California) that Acadia is in the
process of closing because it is located in an undesirables area. It defies logic (and common sense)
that staff Would ignore Acadia's longstanding track record of success and social responsibility and,
instead, presume that Acadia's CTC must be the source of the problems in Santa Ana. Acadia's
CTC is not the source of the problems in Santa Ana, and it will not be a source of problems in
Tustin.
It is hard to imagine the City would have reservations about allowing a Flame Broiler in
Tustin simply because one of many Flame Broilers nationwide was once located in a problem area
in Santa Ana. If staff or the Planning Commission are inclined to treat Acadia differently, they
must be prepared to explain why.
Proposed Conditions of Approval
Staff did not give Acadia an opportunity to review the proposed conditions of the CUP (in
Attachment M to the Agenda Report for Item #4) before staff released them publicly. The first
time Acadia saw the proposed conditions was when the Agenda Report for Item #4 was posted on
,
the City's website late in the evening on January 5th. In our experience, this is highly unusualand
in this case, it was problematic and prejudicial because it resulted in conditions unilaterally drafted
by staff that, in many instances, are unconstitutional, cost -prohibitive, and/or inconsistent with
DHCS's licensing requirements for a CTC.
Nevertheless, Acadia is receptive to concerns that are not based on misguided stereotypes
about people in recovery and is amenable to reasonable conditions that address those concerns. If
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RU- & TUCKER, LLP
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the Planning Commission approves Acadia's CUP, Acadia respectfully requests the following
modifications to staffs proposed conditions (additions underlined;
1.6 CUP 2022-0009 may be reviewed
annually or more often, if deemed necessary by
the Community Development Department, to
ensure compatibility with the area and
compliance with the conditions contained
herein. If the use is not operated in accordance
with the conditions of approval or is found to
be a nuisance or negative impacts are affecting
the surrounding tenants or neighborhood, the
Community Development Director may initiate
proceedings to abate the nuisance and/or
revoke the CUP, which may result in the
decisionmaker imposeiag additional conditions
to eliminate the nuisance or neLyative impacts.
2.2 The hours of operation shall comp
with the California. DgpAqqjernt of health Cage
Services' (DHCS) licen �n�-i•ec�uirenients. It is
nt�crtaated the licernse _will re wire the
following hours of operation-be-44mite44o4ht-
-fi4lew4ffg:
Monday to Friday — 5:00 am. to 2:00 p.m.
Saturday — 6:00 a.m. to 9:00 a.m.
Sunday — closed
Any changes to the hours of operation shall
feq4r-e—F. > ^ oval by be provided to
the Community Develo-oment Director.
This condition is not constitutional. The owners
of properties and businesses need some degree
of certainty in the conditions that they will
subject to. As drafted, this condition gives the
Director unbridled discretion to unilaterally
change the conditions with no requirement that
he/she/they prove the change is necessary. The
City's Code already has nuisance abatement
and CUP revocation procedures the City can
use if a business constitutes a nuisance. These
procedures afford a permit -holder due process
before the City imposes new or modified
conditions.
In order to maintain a state license, a CTC must
comply with DHCSs licensing requirements,
which include DHCS's required hours of
operation. These hours are currently designed
so patients have the option of obtaining their
medication early in the morning before they go
to work,
2.7 Prior to issuance of building permit for A CTC's security plans must be approved by
tenant improvement, the applicant shall submit � the DEA and must comply with HIPAA (e.g.,
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Uoudition
a detailed Security Management Plan to be
reviewed and approved by the Community
Development Director and Police Chief. The
Security Management Plan shall include
security measures to minimize impact to
adjacent residential uses from potential noise,
pedestrian and vehicular activities, The
Security Management Plan shall also include
measures to address loitering, queuing
procedures, narcotic activities in the parking lot
and adjacent areas, overnight camping,
intoxicated persons, security cameras, security
alarms to monitor the premises for intruders,
procedures for calling Tustin Police
Department regarding observed or reported
crime, plan to prevent impaired driving after
dispending/dosing medicine, security measures
during non-operating hours, training protocols
for all employees and security personnel, If the
Community Develonment Director and Police
Chief or their desigRecs do nota rove �i~
Plan within Aiir_tyJ_3Gdays of submittal_Jt shall
be deemed aro�yed. To the extent �theCii's
requirements fortheSecurity Management
Plan conflict with _flic Auiren
_re -ients of the
United States Qrug Enforcement
L
Administration �DEA aiici�tlie�He,,i�ltl,i
Insurance Portabilit and Accountabilit Act
fflMAAJJIe
HIPAA shall prevail.
2,9 The applicant shall provide at least one
security personnel from a licensed security
company with the State of California -24
h -during both—regular
business operating hours —an4--Fe*-epeFa4H-_,g
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storing footage from security cameras online
would violate HIPAA). Acadia is concerned
that, as drafted, this condition will put it in a
position where the City's security requirements
conflict with the DEA's security requirements.
In addition, Acadia only has 12 months to
exercise its rights under the CUP, Without a
deadline for the City to approve plans, staff
could effectively deny the CUP through
inaction.
Acadia has extensive experience making sure
its CTCs are secure, both during operating
hours and after. It operates 151 OTCs
nationwide, 14 of which are in California. At
its other locations, Acadia has never had any
need for a security guard inside a CTC or
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to monitor the exterior area of the facility.
2.10 The applicant shall provide as security
guards to monitor the intefief-nd exterior of
the facility in accordance with Condition 2.9
above. The security guards shall ensure that no
loitering, narcotic activities, trespassing, illegal
activities and other disturbances requiring
police assistance will occur at the project site.
In addition, an after hour single point of contact
will be provided to the Police Department for
any afterhours incidents resulting from the
pro-oosed use.
2.14 All clients/patients shall be required to
remain in the waiting room upon check in for
the appointment. No queuing of lines shall
extend beyond the second floor and/or to the
exterior of the building. Reception staff and
security personnel shall be responsible to
monitor the waiting area. To the extent the
City's requirements for patient check ins
conflict with the DHCS's-- licensing
requirements of the United StatesDrg
Enforcement, DWS's licensing ecluireinents
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outside the CTC after hours. Providing an
interior security guard during business hours
and an exterior security guard around-the-clock
is cost -prohibitive and unnecessary. Acadia
will have a full Johnson Controls (formerly
Tyco) security system to secure the Property
after hours. As drafted, this condition is
discriminatory and an unlawful taking under
NollanlDolan. There is no evidence that this
amount of security bears any nexus or rough
proportionality to Acadia's proposed CTC. It is
based on unfounded stereotypes about the
danRers of recovering addicts.
See comment above.
In order to maintain a state license, a CTC must
comply with DHCS's licensing requirements,
which include requirements for patient check
ins.
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RU-Ai-61Vc-E R, LLP.
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Acadia's'Proposed Modification to
Condition
2.15 The applicant shall submit a plan to the
Community Development Department for
review and approval to manage
traffic/circulation, staging, or queueing related
to curbside dosing, prior to the commencement
of the business operation. If the Community
Develotamcnt Der�artmcnt does riot approve or
requcst chanes to the plan within thirty (30)
days of subrrrittal it �l�all be deemed approveda
ptrb ` - Curbside dosing shall be
administered pursuant to the Dispensing
Policies document submitted in conjunction
with the Conditional Use Permit application.
2.16 If the Community Development
Director determines in the future that the use
generates Police Calls for Service above and
beyond a typical clinic use in the City, the
Director may initiate proceedir s to abate tle
nuisance and/or revoke the CUP. These
proceedings may result irr the applicant
beir:required to deposit funds with the PD to
cover costs associated with police calls for
services at the subject site for the number of
calls that exceed the numbers of calls generated
by typical clinic uses in the City.
2.17 Parkin lot lihtin shall c ontalvitl
Section 9271(hh) of the Tustin Municipal
Code If the Community Develgpment
Department determines the current parking lot
lrgl�tn� does rtc�t c,orn�ly with ectiori
9271 {lily) it shall notifX t��e applicant iii
writirr� and within_srarty {0) clays ofr•eceiviir
such written notice -Tthe applicant shall submit
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Nationale
There is no needed for a dedicated curbside
dosing area that is screened from public view.
Curbside dosing is exceptionally rare. It is a last
resort when a patient needs his/her/their
medication but cannot enter the CTC due to a
communicable disease (e.g., COVID). It
consists of a nurse and security guard walking
a patient's medication to the patient's vehicle
and, in some cases, watching the patient orally
ingest a dose. If a curbside dosing plan is
necessary, then there needs to be a deadline for
City review. Acadia only has 12 months to
exercise its rights under the CUP. Without a
deadline for the City to approve plans, staff
could effectively deny the CUP through
inaction.
This condition is unconstitutional. As drafted,
the condition gives the Director unbridled
discretion to unilaterally charge the applicant
for law enforcement costs with no requirement
that the Director prove the increased costs are
attributable to the applicant. The City's Code
already has nuisance abatement and CUP
revocation procedures the City can use if a
business results in a disproportionate number
of calls for service. These procedures afford the
permit -holder due process before the City
imposes new or modified char es.
The current parking lot lighting on the Property
is adequate and fully complies with Section
9271(hh) of the Tustin Municipal Code. This is
easily verifiable with a site inspection.
Requiring the applicant or property owner to
retain a lighting engineer to prepare a
photometrics plan is a costly and unnecessary
burden.
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City of Tustin Planning Commission
January 10, 2023
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a photometrics plan to the Community
Development Department for review and
approval to provide adequate lighting in the
parking lot. Additional lighting shall be
required to be installed within one hundred
!w 0 days of tl�ieCit �'sa approval of �the
twenty 2
alioton,ietrics-plaii-ff���etrent
ig---on—,4e7
Rafk4�4&t-14ki*��,�ped--with
&hiekk4o-"s-uf��gi�i �VeF4e4he
f esWe+R44-prepef
119 The applicant shall provide
landscaping/screening along the western
perimeter fence adjacent to the multifamily
residential neighborhood subject to review and
approval by the Community Development
Department. If the CommunitDevelopmnent
Deoartment does not aDorove or reatiest
chanes to the landscaping/screening _along the
western perimeter fence within thirty OQ11aas
of a submittal, the submittal shall be deemed
2.20 To the extent any_gf
�the conditions herein
conflict with DHCS's licensinrcgtiitemnents
of the approvals needed from the DEA, the
DHCS and DEA requirements shahwail,
Acadia only has 12 months to exercise its rights
under the CUP. Without a deadline for the City
to approve plans, staff could effectively deny
the CUP through inaction.
CTCs are heavily regulated by DHCS and the
DEA. Imposing CUP requirements that conflict
with these agencies' requireinents will amount
to a CUP denial.
We understand from the public comments submitted so far that the Commission will face
overwhelming pressure from members of its community to deny Acadia's request to operate a
CTC at the Property (or anywhere else in Tustin). But the evidence in the record before the
Planning Commission does not provide any valid (nondiscriminatory) basis to deny Acadias
request./or a CUP. As set forth above, staff's concerns are based on an illogical interpretation of
Santa Ana's calls for service data and unfounded stereotypes about people in recovery. Santa Ana's
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police reports speak for themselves. (See Attachment 19 to Attachment D.) They attributed few
calls for service to Acadia's CTC. (See Attachment 23 to Attachment D.) Acadia's record of
excellence speaks for itself. Its facilities have Newsweek's list of America's Best Addiction
Treatment Centers. Several of its landlords submitted support letters. (See Attachment 24 to
Attachment D.)
If the Planning Commission does not grant Acadia's reasonable modification request (Item
#3), Acadia respectfully requests the Planning Commission approve the CUP, subject to the
revised conditions set forth above.
Very truly yours,
RUTAN & TUCKER, LLP
Alishia Patter on
AP
Enclosures:
1. Sample Email Chain #1 Requesting Meeting with City Staff
1 Sample Email Chain #2 Requesting Meeting with City Staff
3, Sample Email Chain #3 Requesting Meeting with City Staff
cc: Honorable Members of the City Council
Justina Willkom, Community Development Director
Raymond Barragan, Principal Planner
Erica Yasuda, City Clerk & ADA Compliance Officer
Mariam Madjlessi, Community Development ADA Liaison
Irma Huitron, Assistant Director - Planning
Leila Carver, Planning Consultant
David Kendig, City Attorney
Michael Daudt, 6y Attorne'y's Office
Diana Wydo, Acadia Healthcare, Inc.
Daniel Hymas, Acadia Healthcare, Inc.
Brian Spalding, Acadia Healthcare, Inc.
Philip Teyssier, Atomic Investments, Inc.
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