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HomeMy WebLinkAbout1988-051 CCR1 1 Member Rich Theis resolution and moved its adoption: RESOLUTION NO. 88 -51 introduced the following RESOLUTION RESCINDING THE APPROVAL OF A SPECIAL USE PERMIT FOR THE BILL KELLY HOUSE RESIDENTIAL TREATMENT FACILITY WHEREAS, the Bill Kelly House of Kelly Norton Programs, Inc. (Applicant) has applied for a special use permit for the operation of a residential treatment facility for chemically dependent and mentally ill adults pursuant to the Brooklyn Center Code of Ordinances; and WHEREAS, following public hearings and upon due consideration of the evidence presented, the Council, on October 26, 1987, approved issuance of a special use permit subject to stated conditions; and WHEREAS, the conditions precedent to the actual issuance and delivery of the special use permit have not been met by the Applicant; and WHEREAS, upon presentation to the City Council of additional information relevant to the application, the Council has ordered the reopening of the hearing on the special use permit application; and WHEREAS, the Council has given notice of such reopened hearing in the same manner as notice was given of the original hearing before the Council; and WHEREAS, upon consideration of all of the information presented, both at the original hearing and the reopened hearing, the City Council has concluded that the resolution of the Council of October 26, 1987, approving the special use permit subject to conditions, should be rescinded; and WHEREAS, on October 26, 1987, the City Council adopted Ordinance No. 87 -16, which imposes a moratorium on development of group homes including group homes such as that which is proposed by the Applicant; and WHEREAS, said moratorium ordinance is still in full force and effect. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brooklyn Center that: 1. The Applicant has not demonstrated by sufficient evidence that the establishment, maintenance, or operation of the residential treatment facility will promote and enhance the general public welfare and will not be detrimental to or endanger the public health, safety, morals, or comfort. r 1 1 RESOLUTION NO. 88 -51 ATTEST: 2. The Applicant has not demonstrated by sufficient evidence that the proposed residential treatment facility will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood. 3. The Applicant has not demonstrated by sufficient evidence that the special use will not impede the orderly and normal development and improvement of surrounding property for uses permitted in the district. 4. The resolution approving the special use adopted by the City Council on October 26, 1987, is hereby rescinded. 5. The City will not undertake any further consideration of the application until the moratorium which is now in effect with respect to such development has been terminated. 6. The City Manager is directed to request that the State of Minnesota Legislative Auditor evaluate the effectiveness of treatment facilities in serving the needs of the mentally ill. 7. The memorandum attached hereto is hereby made a part of this resolution. March 28, 1988 Date The motion for the adoption of the foregoing resolution was duly seconded by member Bill Hawes and upon vote being taken thereon, the following voted in favor thereof: Dean Nyquist, Celia Scott, Bill Hawes, and Rich Theis; and the following voted against the same: Gene Lhotka, whereupon said resolution was declared duly passed and adopted. 1 ADM APPLICATION FOR SPECIAL USE PERMIT FOR BILL KELLY HOUSE An application has been made by the Bill Kelly House for a special use permit to allow the operation of a residential treatment facility for mentally ill and chemically dependent adults. Minn. Stat., §462.3595 provides the authority for city councils to designate by ordinance certain land uses as conditional uses. Such uses may be approved by the City Council by a showing by the applicant that the standards and criteria stated in the ordinance will be satisfied." Brooklyn Center City Code §35 -220, Paragraph 2 states, in part: A special use permit may be granted by the City Council after demonstration by evidence that all of the following are met: a. The establishment, maintenance, or operation of the special use will promote and enhance the general public welfare and will not be detrimental to or endanger the public health, safety, morals or comfort. b. The special use will not be injurious to the use and enjoy- ment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood. c. The establishment of the special use will not impede the orderly and normal development and improvement of surrounding property for uses permitted in the District. The landowner, or applicant, bears the burden of proof that the planned use will meet the standards required for issuance of the special use permit. Inland Construction Co., The City of Bloomington, 195 NW2d 563, (Minn. 1972). In its initial consideration of the application of the Bill Kelly House for a special use permit, the Council concluded that the applicant had sustained its burden of establishing that the conditions for a special use 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 2 permits set forth in the City Code had been satisfied. This case involves emotionally charged and hotly contested issues relating to public safety and impacts on property values which may result from the operation of the proposed facility. It has been maintained throughout the proceedings by neighborhood groups opposed to the application that the special use permit conditions provided by the City Code are not met in this case, that the presence of the group home will diminish property values, and that the presence of chemically dependent and mentally ill persons in the neighborhood represents a threat to the public safety. In concluding that the conditions of the ordinance were met, the Council relied primarily on statements and representations made by the applicant and others appearing on behalf of the applicant. Since the initial approval of the application, opponents have submitted additional information and called to the attention of the City Council information which was available to the Council but which the opponents assert was not given due consideration at the time of the original consideration of the application. Upon consideration of this additional evidence together with the evidence originally presented to the Council, the Council finds that not all of the representations made by or on behalf of the applicant were entirely accurate. It also finds that other representations by the applicant, while they were not strictly incorrect, were misleading or did not fully describe relevant facts. In other words, they may have been the truth, but they were not the whole truth. These representations call into question the candor, credibility, reliability and expertise of the applicant and those who gave testimony on its behalf. If the Council had had the benefit of this additional information at 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 3 the time of the original application, it would not have adopted the resolution approving the special use permit, at least without requiring that additional evidence be submitted by the applicant or conducting further inquiry of its own. The following will serve as examples of such inaccurate or misleading statements by the applicant. 1. PUBLIC SAFETY. Throughout the proceedings on this matter, the applicant has repeatedly characterized its residents as harmless people who represent no threat to others. In a letter to Mr. Ronald Warren of September 28, 1987, Mr. Henry Norton stated that no resident from Rule 36 facilities have ever harmed a neighbor of the facility. Mr. Jay Bamberry stated at the Planning Commission meeting of August 13, 1987, that the safety of the general public around group homes is not threatened. At the same meeting, Mr. Richard Ellis stated that people with mental illness and chemical dependency are no more likely to commit criminal behavior than the general population. At the Planning Commission meeting of July 16, 1987, Mr. Felix Phillips stated that there are not dangerous people at the facility. At the Council meeting of September 14, 1987, Mr. Norton stated that there has never been any incident where a neighbor has been harmed in any way, either verbally, physically or property -wise by a resident of a Rule 36 facility. At the same meeting, Ms. Gerry Olderberg stated that the residents of the Bill Kelly House do not hurt others but rather are hurt by people outside the facility. Virtually all of the 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 4 statements made by representatives of the applicant would tend to demonstrate that the residents of its facility were non criminal, non violent, harmless victims. The only statement by the applicant which gave the slightest indication that the mentally ill and chemically dependent residents could conceivably represent a threat to the public safety was at the Council meeting of September 14, 1987. At that meeting, in response to a question whether staff members or other residents within the facility have ever been harmed, Mr. Norton stated that "occasionally there are squabbles within the building." However, police reports on other similar facilities show a pattern of behavior by residents that is clearly more dangerous than "squabbles." These reports describe incidents of fighting, assaults, rape and narcotics violations. Mr. Jay Bamberry of the State Department of Human Services was somewhat more complete in his description of problems at the Bill Kelly House. At the August 13, 1987, meeting of the Planning Commission, he stated that the record shows two complaints in May, 1987 and December, 1985 against the facility, one involving two residents within the facility and one between a staff member and a resident, thereby suggesting that there were no problems in all of 1986. However, Sergeant Dave Neibur of the Minneapolis Police Department stated that a study of the Bill Kelly House at its current location during 1986 revealed that police were called 14 times regarding assaults, theft, burglary, stabbing and drunkenness. He 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 5 2. EFFECT ON PROPERTY VALUES. pointed out that these facilities have a great propensity for crime and a great deal of time spent by the Police Department. At the July 16, 1987, Planning Commission meeting, Mr. Felix Phillips stated that there is a difference between mental illness and criminal behavior and added that there are no sex molesters or child abusers in the program. However, the Purchase of Services Agreement between Bill Kelly House and Hennepin County includes in its target population those who are perpetrators of physical and sexual abuse At the Council meeting of September 14, 1987, the applicant was confronted with a newspaper article describing an incident in which a "walkaway" from a residential treatment facility called the Eden House, broke into an apartment in Robbinsdale and repeatedly stabbed a 92 year old woman. Mr. Norton stated that the Eden House was not a Rule 36 facility. Mr. Lionel Norris, appearing on behalf of the applicant stated that Eden House was a facility of the Department of Corrections. Both of these statements were later found to be untrue. Representations of the applicant have consistently represented that the various studies on the impact of such facilities as the Bill Kelly House on the value of neighborhood properties demonstrate that there will be no reduction in value. On July 16, 1987, Mr. Felix Phillips stated that property values are not affected by group homes. Mr. Phillips later 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 6 stated at the August 13, 1987, meeting of the Planning Commission that the summary of studies published by the Mental Health Law Project demonstrates that group homes do not affect property values. At the same meeting, Mr. Jay Bamberry stated that he has reviewed numerous studies and reports all of which indicate that the value of surrounding properties do not decline with the location of group homes. No representatives of the applicant ever pointed out, however, that the summary of studies submitted includes at least one study, by Wolch and Gabriel, which found results contrary to the mainstream of past research in this area. Both child /youth and adult residential facilities adversely affected property values. Nor did they point out that the description of this study is the only one which includes reference to facilities for people with mental health and drug related problems. 3. STAFFING LEVELS. In a letter to Mr. Ron Warren dated September states that the staffing levels will be equivalent over the original application. 25, 1987, Mr. Henry Norton increased by 1.8 full -time This will assure double coverage from 8:00 a.m. to midnight, seven days a week." At the Planning Commission meeting of September 3, 1987, Mr. Felix Phillips stated that the state, county and the Bill Kelly House will go along with the extra staffing if it is a requirement. 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 7 In fact, although it may be through no fault of the applicant, Hennepin County has to date refused to fund the higher level of staffing which was promised. 4. DISPENSATION OF MEDICATION. In response to concerns expressed about the dispensation of medications to residents, Mr. Ellis stated at the August 13, 1987, Planning Commission meeting simply that medication for residents' needs will be met in a legal manner and that he did not anticipate any problems complying with the requirements of the Department of Health. Neither Mr. Ellis nor any other representatives of the applicant noted that at that time they were defendants in a wrongful death action in which allegations included the assertion that the death of a resident of the Bill Kelly House was caused by a failure properly to supervise, monitor and administer prescribed medications and that the defendants did not use that degree of care, skill and knowledge ordinarily possessed by health care providers. 5. SUCCESS OF TREATMENT PROGRAM. At the August 13, 1987, meeting of the Planning Commission, Mr. Jay Bamberry characterized the success ratio of the Bill Kelly House as excellent and stated that the residents move faster through the program 1 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 8 at this facility than other programs. It appears, however, from the Purchase of Services Agreement that some 75.8% of residents discharged in the 85 -86 contract year did not successfully complete the program. It would appear that a state wide analysis of the effectiveness of this type of program should be undertaken. The Legislative Auditor would possibly be the most appropriate agency for this type of evaluation. 6. OVERSIGHT BY GOVERNMENTAL AGENCIES. The impression was left by testimony by representatives of the applicant that its activities are continually reviewed by a number of governmental agencies. For example, Ms. Martha Skipp from Hennepin County stated at the October 5, 1987, Council meeting that her department receives reports from other licensing agencies such as the fire Marshall, health depart- ment and building inspector. Mr. Bamberry stated at the August 13, 1987, Planning Commission meeting that his department is required to meet with a wide range of groups such as the Fire Marshall, Health Department and Mental Health Group before making grants to the facility. Mr. Norton stated at the September 14, 1987, City Council meeting that the building is inspected by the City and also by the Health Department. However, information submitted by the Community Action Group suggests that neither the Fire Marshall nor the Minneapolis Health Department have inspected the facility for several years. 7. BUILDING MAINTENANCE. A number of concerns were expressed regarding the upkeep and maintenance of the applicant's current facility. The applicant represented that the 1 1 1 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 9 maintenance was the responsibility of the owners of the building. At the Council meeting of September 14, 1987, Mr. Felix Phillips stated that he has seen pictures of the present location but noted that the owners do not attempt to maintain the property as it should be. At the same meeting, Mr. Norton stated that the lease agreement states that the landladies paint and maintain the house. The lease agreement, however, provides that the lessee shall be wholly responsible for the maintenance of the leased premises It should be noted that in many cases the information submitted by the Community Action Group is not, by itself, particularly significant. In some cases the information is not directly relevant to the issues before the Council. It should also be noted that where information provided by the applicant appeared to be incorrect, the Council has no reason to believe that statements made on behalf of the applicant were knowingly or purposefully false. The application of the Bill Kelly House has generated a great deal of heated controversy. Significant evidence was produced in the course of the proceedings which tended to demonstrate that the neighborhood would be adversely affected by the presence of the proposed facility and that the criteria of the City Code for conditional use permits were not met. This evidence was adduced almost entirely by neighbors of the facility. Significant evidence was also generated which tended to demonstrate that the neighborhood would not suffer by the presence of the facility. This evidence 0007ME04.E19 MEMORANDUM Application for Special Use Permit Bill Kelly House Page 10 was presented by proponents of the application. The possibility of adverse impacts on the neighborhood from the facility is a matter of the utmost concern to the Council. In weighing the evidence presented, the Council must be assured that the evidence upon which its decision is based is not only accurate but also complete. On the basis of the reevaluation of the evidence presented in the initial consideration of this matter and the evaluation of new evidence presented at the reopened hearing, the Council is persuaded that it is not reasonably assured that the evidence which formed the basis for the approval of the special use permit was either accurate or complete. On the basis of the record before the Council, the applicant has not met its burden of establishing that the criteria in the City Code for issuance of a special use permit are satisfied. No such permit should be issued without the production of further, more reliable information. Rescinding the approval of the special use permit has the effect of causing this application to become subject to the moratorium on such uses currently in effect. The Council has ordered the study of the land use impacts of group homes to be completed during the moratorium. It is expected that this study will provide the information necessary to reach an informed decision on this pending application.