County of Fairfax, Virginia - Fairfax County, Virginia · Victor T. Tsou and Janet C. Tsou 1318...

County of Fairfax, Virginia

athy S. Belgin Deputy Zoning Administrator for Appeals

FROM:

DATE: October 4, 2019

TO: John F. Ribble, III, Chairman Members, Board of Zoning Appeals

SUBJECT: Appeal Application A 2019-DR-016 Victor T. Tsou and Janet C. Tsou 1318 Kurtz Road, McLean, VA 22101 Salona Village Lot 36 Tax Map Reference: 30-2 ((13)) 36 Zoning District: R-2

Attached for your information is a copy of appeal application A 2019-1)R-016 which was recently filed and accepted. The appeal has been scheduled for public hearing on January 22, 2020, at 9:00 a.m.

CSB/mb

Attachment: A/S

cc: John W. Foust, Supervisor, Dranesville District John C. Ulfelder, Planning Commissioner, Dranesville District Barbara Byron, Director, Department of Planning and Development Leslie B. Johnson, Zoning Administrator Brent Krasner, Chief, Special Permit and Variance Branch Lorraine Giovinazzo, Clerk, Board of Zoning Appeals Molly Bramble, Appeals Coordinator

Department of Planning & Development Zoning Administration Division

Ordinance Administration Branch 12055 Government Center Parkway, Suite 807

Fairfax, Virginia 22035-5505 Phone 703-324-1314 FAX 703-803-6372

www.fairfaxcounty.gov/planning-development/ PLANNING & DEVELOPMENT

A 2019-LE-016 — Victor -- Tsou and , ?met Co Thou

Type or Print Name of Appellant or Agent

Signature of Appellant or Agent

4103 Chain Bridge Road, Suite #101, Fairfax, VA 22030

g au* Telephone No: Home Work Cell

Supervisor District:

Total Area (Acres/Square Feet):

Present Zoning:

ii e

Print Form

COMMONWEALTH OF VIRGINIA COUNTY OF FAIRFAX

APPLICATION FOR APPEAL

APPLICATION NO. X c;01 Pev Of

(Assign3by ta )

NAME OF APPELLANT: Victor T. Tsou and Janet C. Tsou

Please type or Print in Black Ink

NATURE OF THE APPEAL: Appellants appeal the determination of the Fairfax Zoning Administrator, Leslie B. Johnson contained in 2 separate letters dated August 21, 2019. Ms. Johnson determined that the subject property, meets the definition of a Group Residential Facility, thus allowing the owner to operate a single residential facility, licensed by the VDBHDS, where Id more than 8 mentally ill, intellectually disabled or developmentally disabled persons reside with staff persons. Appellants argue that the Property should have been classified as a congregate living facility or a medical care faciliki

DATE OF ORDER, REQUIREMENT, DECISION, DETERMINATION OR NOTICE OF VIOLATION WHICH IS SUBJECT TO THE APPEAL August 21, 2019

HOW IS THE APPELLANT AN AGGRIEVED PERSON?: Appellants are married and live together at 6634 Brawner Street, McLean, VA 22101. This property is contiguous to and immediately behind the subject property 1318 Kurtz Road, McLean, VA 22101. See attached supporting docs.

IF APPEAL RELATES TO A SPECIFIC PROPERTY, PROVIDE THE FOLLOWING INFORMATION:

POSTAL ADDRESS OF PROPERTY: 1318 Kurtz Road, McLean, VA 22101

TAX MAP DESCRIPTION: 30-2 ((13)) 36

John E. Carter, Esquire and Shaoming Cheng, Esquire

Address

703-591-2985 703-591-2985

Please type or print name, address, and phone number of contact person if different from above: John E. Carter

DO NOT WRITE IN THIS SPACE

Subdivision Name:

Date application received:ept.<467ic-/ -49 Application Fee Paid: $ Date application accepted: 11/ / 9 8/2013

JOHN E. CARTER, P.C. ATTORNEY & COUNSELLOR AT LAW

4103 CHAIN BRIDGE ROAD, SUITE 101 FAIRFAX, VIRGINIA 22030

TEL (703) 591-2985 • Fax (703) 591-2965 EMAIL: [email protected] John E. Carter, Esquire Admitted in VA, DC & MD

September 21, 2019

Ms. Leslie B. Johnson Zoning Administrator Zoning Administration Division Department of Planning and Zoning 12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035

and

Ms. Lorraine Giovinazzo Clerk, Board of Zoning Appeals Zoning Evaluation Division Department of Planning and Zoning 12055 Government Center Parkway, Suite 801 Fairfax, Virginia 22035

Re: Appeal of the Use Determination by the Fairfax County Zoning Administrator August 21, 2019 1318 Kurtz Road, McLean, VA 22101; Tax Map No.: 30-2 ((13)) 36 Written Statement in support of appeal on behalf of Victor T. and Janet C. Tsou, Appellants

Dear Ms. Johnson and Ms. Giovinazzo:

John E. Carter and Shaoming Cheng represents Victor T. and Janet C. Tsou, Appellants on an appeal of two Zoning Use Determination Letters (the "Zoning Determination") by the Fairfax County Zoning Administrator dated August 21, 2019, regarding the property located at 1318 Kurtz Road, McLean, Virginia 22101 (the "Property"). A copy of two Zoning Use Determination Letters are attached to this Appeal Application.

Appellants appeal the determination of the Fairfax Zoning Administrator, Leslie B. Johnson contained in 2 separate letters dated August 21, 2019. Ms. Johnson determined that the subject property, meets the definition of a Group Residential Facility, thus allowing the owner to operate a single residential facility, licensed by the VDBHDS, where no more than 8 mentally ill, intellectually disabled or developmentally disabled persons reside with staff persons. Appellants argue that the Property is most similar or should have been classified as a congregate living facility or a medical care facility. Appellants therefore respectfully request that BZA reverse or modify the Zoning Determination by ruling that the use is most similar to a Congregate Living Facility or Medical Care Facility because the focus of the operation of this business at the subject property shall be on substance abuse and other treatment, as opposed to residency, rendered the use most like a Medical Care Facility or Congregate Care Facility.

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The Appellants reside at 6634 Brawner Street, McLean, Virginia 22101. The Appellants are aggrieved because they are abutting landowners and suffer a particularized harm different from the public at large. This property is contiguous to and immediately behind the subject property 1318 Kurtz Road, McLean, VA 22101. The Appellants are an elderly retired couple who have been bothered by the noise coming from the Kurtz property when the owner was recently working on the property and is concerned the noise will increase once the business starts operating. They are also concerned about the economic impact on the value on their property if this use is granted.

Appellants argue that the Owner of the Kurtz property in its various letters written to the Zoning Administrator, in its filings with the Virginia Department of Behavioral Health and Developmental Services (VDBHDS), in its public meetings with the residents of Fairfax County, in its marketing material on its web site and in its classification by the National Provider Identifier Database ("NPI") that provides "Health Care Provider Taxonomy Codes", describes "Newport Academy-Kurtz as a drug rehab facility in McLean, Virginia". Because the use will at minimum allow a secondary diagnosis and treatment of drug addiction (although Appellants argue that it is a co-occurring disorder), Appellants argue that under applicable Virginia Code and case law as well as the Fairfax County Zoning Ordinance the Kurtz property will be used as a medical care facility treating drug abuse and as such its use determination as a group residential facility should be denied.

By describing the "Service Type" as "MH Children Residential Service" and not "MH Children Group Home Residential Service" in the June 2019 VDBHDS Revision, Newport in its attempt to gain licensure and the group residential facility use determination continues in its attempt to avoid the Zoning Ordinance limitations of "Group Residential Facility". Instead Newport focus in all its filings and public statement and marketing and web site data is on medical treatment, including substance abuse treatment, as opposed to residency in a homelike setting.

Newport's focus on treatment, not residency, is evident in the "Service Description" section of the June 2019 VDBHDS Revision. Newport's "Service Description" in the June 2019VDBHDS Revision is also consistent with its website's focus on medical treatment (including substance abuse), as opposed to residency in a homelike single dwelling. Additionally, Newport's "Service Description" in the June 2019 VDBHDS Revision is consistent with the description of Kurtz Property in the National Provider Identifier Database ("NPI") that provides "Health Care Provider Taxonomy Codes", described therein as "a hierarchical code set that consists of codes, descriptions, and definitions . . . designed to categorize the type, classification, and/or specialization of health care providers." NPI describes "Newport Academy-Kurtz" as follows:

Newport Academy-kurtz (Monroe Operations, LIc) (sic) is a drug rehab facility in McLean, Virginia. It is a Substance Abuse Residential Rehab Facility and provides treatment to people with drug addiction and other substance abuse problems. The NPI Number for Newport Academy-kurtz is 1316427214.

It is enough that Newport trumpets its treatment plan as addressing "substance abuse" as well as depression, anxiety, trauma and eating disorders because not only "addiction" but the mere "illegal use of controlled substances" would disqualify the Kurtz treatment facility from "Group Residential Facility" status as provided by the plan terms of the definition and Code § 15.2-2291. But the focus on all kinds of treatment, as opposed to the provision of residential housing opportunities renders the Kurtz and Davidson proposals most like either a "Congregate Living Facility" or "Medical Care Facility". On its

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website under the directory heading, "How We Are Different," Newport Academy directly compares itself against the substance abuse 12-Step treatment model. If it is not a drug rehabilitation treatment facility, why would it compare itself as being a better option for those seeking potential treatment in a 12-Step program?

The term "Secondary Diagnosis" has been used frequently by Newport Academy to circumvent the state law and zoning ordinances mentioned supra. In meetings with the public and in correspondence with VBHDS, this term has been used in an attempt to assuage concerns that Newport Academy would be operating as a treatment center for drug abuse. At the McLean High School meeting with the public, Monroe reportedly' stated that Newport was primarily a psychiatric rehabilitation facility, but substance abuse could be a "secondary diagnosis." That dodges the issue.

Most of the time, substance abuse disorder and addiction does not occur in a vacuum' In the mental health field, a secondary diagnosis of substance abuse is also known as a co-occurring disorder or dual diagnosis. Any combination of mental health disorders and substance abuse or addiction qualifies for this diagnosis'. Though the symptoms of one disorder may have come before the other, both disorders tend to aggravate one another, making it impossible to disentangle the indicators caused by one disorder from the other. Regardless, the position that drug use is a "secondary diagnosis" for depression intentionally elides the issue — the majority of people suffering from destructive behavior like drug abuse likely have issues with "depression" but that hardly makes "depression" the primary presenting issue. To find otherwise, we essentially negate statutes like Section 15.2-2291, since they could be so easily manipulated by profit-based vendors.

The Fairfax Zoning Ordinance and state laws clearly state that a Group Residential Facility where no more than (8) mentally ill, intellectually disabled, or developmentally disabled persons reside, that handicap, mental illness, and developmental disability shall not include current illegal use or addiction to a controlled substance as defined in Sect. 54.1 3401 of the Code of Virginia or as defined in Sect. 102 of the Controlled Substance Act (21 U.S.0 802).

In a letter to Ms. Johnson from Monroe's legal counsel, McGuireWoods LLP,6 which was incorporated in Ms. Johnson's Use Determination, it was stated that no one entering Newport Academy would be "currently using illicit substances." This attempt to shade VA Code § 15.2-2291 so as to literally mean that clients would not be using an illegal substance upon walking into the facility. It not only falls short of the spirit of the law7, but also conveniently falls short of the rest of the passage it is citing.

1 https://www.thefix.com/dual-diagnosis-co-occurring-disorders, pgs. 1-8 2 Correspondence via email with Stephanie Daniel who attended the McLean High School meeting, 3 https://www.thefix.com/dual-diagnosis-co-occurring-disorders, pg. 1 4 https://americanaddictioncenters.org/co-occurring-disorders 5 § 15.2-2291 A. Zoning ordinances for all purposes shall consider a residential facility in which no more than eight individuals with mental illness, intellectual disability, or developmental disabilities reside, with one or more resident or nonresident staff persons, as residential occupancy by a single family. For the purposes of this subsection, mental illness and developmental disability shall not include current illegal use of or addiction to a controlled substance as defined in § 54.1-3401. 6 August 5, 2019 Letter to Leslie B. Johnson, Re: June 4 2019 Zoning Determination Request for 1318 Kurtz Road, pg. 2 7 "Mischief Rule" regarding statutory interpretation, University of Virginia v. Harris, Supreme Court of Virginia January 12, 1990 239 Va. 19 (Va. 1990), In Board of Sup. v. King Land Corp., 238 Va. 97, 102-103, 380 S.E.2d 895,

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"...shall not include current illegal use of or addiction to a controlled substance..."

The "addiction" part of the code has been continually (and conveniently) left out by the statements made on behalf of Newport Academy and their counsel. That is because most patients residing at Newport Academy will be walking in with an addiction to a controlled substance, thus requiring their treatment. On page 5, McGuireWoods supra admitted that Newport Academy would be a drug treatment facility when it stated that Newport Academy would provide, "Recognition and treatment of substance abuse issues through counseling services...", while in the same sentence said that Newport Academy was "not a drug rehabilitation facility".

The Zoning Ordinance definition of "Group Residential Facility" explicitly provides that "a dwelling unit or facility for more than four (4) persons who do not meet the criteria [of that definition] .. . shall be deemed a CONGREGATE LIVING FACILITY." The repeated disclosure in the June 2019 VDBHDS Revision, the Newport Website and the NPI that treatment at the Kurtz and Davidson treatment homes includes that of "substance abuse" means that the Zoning Administrator was constrained by the Zoning Ordinance to determine that those facilities must be deemed "Congregate Living Facilities.

In light of Newport's repeated claims, however, that it treats the "entire family", the Kurtz Property may, instead, be more like a Medical Care Facility since the above definition of Congregate Living Facility specifically excludes "a facility providing services or treatment to anyone who does not reside at the facility". And the apparent treatment of both inpatients (the mentally or troubled teens) and outpatients (presumably parents and siblings) is most like an "institution, place, building, or agency that offers medical, psychiatric, or surgical care to two or more persons, primarily as inpatients".

McGuireWoods cites supra the Alternative House opinion and litigation, in which the Board of Zoning Appeals' reversal of the Zoning Administrator's determination of a Group Residential Facility, was then overturned by the Fairfax County Circuit Court.'

The Court in Alternative House focused on residency where children also receive mental health treatment, exactly the opposite of the situation here where residency is merely a biproduct of a treatment facility for substance abuse and other sorts of mental health treatment. It is focus on treatment, rather than providing a fair housing opportunity within the rationale of the FHA Amendments, that renders the use proposed for the Kurtz Property most like a Medical Care Facility or Congregate Living Facility and least like a Group Residential Facility designed to provide equal housing opportunities to disadvantaged individuals.

While it is evident above as to why state agencies cannot be made de facto Zoning Administrators because of conflicts between the County's ordinance and one of many state agencies, the Alternative House ruling was about the designation of the patients being considered "residents" and whether the law included "residential staff" in counting permissible residents. In the entire matter and ruling by the Fairfax County Circuit Court was there no question as to whether the Alternative House

897-98 (1989), "we reiterated and reaffirmed the 400-year-old 'mischief rule' of statutory construction. Every statute should be read so as to 'promote the ability of the enactment to remedy the mischief at which it is directed.' Remedial statutes are to be 'construed liberally, so as to suppress the mischief and advance the remedy' in accordance with the legislature's intended purpose. All other rules of construction are subservient to that intent. Id." 8 Board of Supervisors v. Board of Zoning Appeals, 1997 Va. Cir. LEXIS 589

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provided treatment for substance abuse and addiction. It simply is not a precedent for the subjects at issue here.

Attorneys for Newport are expected to contend that Virginia Code Section 15.2-2291 divests he Zoning Administrator of authority to interpret the Zoning Ordinance. Counsel for Newport has previously written to the Zoning Administrator that VDBHDS licensure "ipso facto" deprived her of power to determine that particular use is not a Group Residential Facility or to determine that such use is most like a Medical Care Facility or a Congregate Living Facility. Newport Academy takes the position that VDBHDS has precluded this inquiry by issuing it a provider license. Counsel has failed to cite any authority for this proposition, and such would directly contradict the power the General Assembly granted to zoning administrators as the sole authority to render interpretations of zoning ordinances. See Va. Code Ann. § 15.2-2286(4). Further, and as discussed above, Newport has failed to apply for the VDBHDS designation of "MH Children Group Home Residential Service" and, in any event, the VDBHDS has yet to grant a permanent license of any sort for the Kurtz facility. On June 17, 2019, in a response to a Kurtz Road determination request, Newport Academy's counsel stated that the residents in their opposition regarding the placement of a Newport Academy facility at 1318 Kurtz Road were urging that Ms. Johnson "substitute your determination for the judgment of VDBHDS as to what qualifies as a group residential facility".

However, the Zoning Administrator has the authority to make land use decisions, even if it purportedly conflicts with the licensure judgment of a state agency like VDBHDS. In Article 1 of the Fairfax Zoning Ordinance §1.4.2.,

"If the provisions of this chapter are inconsistent with those of the state or federal government, the more restrictive provision will control, to the extent permitted by law."

The Zoning Administrator's determination in this matter is the "more restrictive" provision, as it has jurisdiction over every dwelling in Fairfax County; VDBHDS only has the authority to license providers, not determine their suitability under zoning law.' The bottom line is that only the locality can decide zoning issues — a state agency simply lacks the ability to do so.

Furthermore, in response to community concerns, VDBHDS's Jae Baez in response to the concerned letters regarding the Davidson and Kurtz Road properties stated to the community,

"First it is important to clarify that DBHDS has no control over local and zoning ordinances... If you have questions concerning the zoning of this property, I encourage you to contact Fairfax County directly.!'1°

9 Fairfax Zoning Article 18-101-1,2c: 1. Unless otherwise specifically qualified, the provisions of this Ordinance shall be enforced by the Zoning Administrator, who shall serve at the pleasure of the Board of Supervisors. In the administration of the provisions of this Ordinance, the Zoning Administrator may be assisted by the following officers, departments, committees, agencies, and boards: C. Such additional officers, departments, agencies, committees, and boards of the County, State, and Federal governments as shall be specified and referred to under the various Sections of this Ordinance. 10 VDBHDS Director of Office Licensing Jae Baez Letter

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Appellants, Victor T. and Janet C. Tsou, further adopt and incorporate herein by reference all arguments made and exhibits included by Gifford Hampshire, Esquire on behalf of additional Appellants, Matthew Desch, Daniel DuVal, and Jason Hein, and further adopt and incorporate herein by reference all arguments made and exhibits included by J. Chapman Petersen, Esquire on behalf of his clients. Appellants, Victor T. and Janet C. Tsou, further adopt and incorporate herein by reference all arguments made and exhibits included by any other Appellant in opposition to the Zoning Use Determination.

For all the above reasons, Victor T. and Janet C. Tsou respectfully request that you determine that the proposed Newport Kurtz treatment "home" is most like either a Congregate Living Facility or a Medical Care Facility and, in any event, not a "Group Residential Facility".

Conclusion

For the foregoing reasons, the Appellants Victor T. and Janet C. Tsou respectfully request that the BZA reverse the determinations made by the Zoning Administrator and grant other relief as is deemed appropriate.

Regards,

John E. Carter, Esquire Enclosures JEC/mmj Cc: Victor T. and Janet C. Tsou Cc: Shaoming Cheng, Esquire

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County of Fairfax, Virginia To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County

Sent via US Mail and Email (2hampshirea,bklawva.cam; eloureneoW,Rmaitcom: stevea,wvdlerbrothers.com: robinquattrone98(i12mail.com)

August 21, 2019

Gifford R. Hampshire, Esq. Blankingship and Keith, P.C. 4020 University Drive, Suite 300 Fairfax, VA, 22030

Katie Zimmerman 1502 Wasp Lane McLean, VA 22101

Christine Lourento 6912 Soutluidge Drive McLean, VA 22101

Steve Wydler 7009 Symphony Court McLean, VA 22101

Robyn and David Quattrone 7008 Symphony Court McLean, VA 22101

Re: Use Determination Re: 1318 Kurtz Road Tax Map Ref: 30-2 ((13)) 36 Zoning District: R-2 Salona Village Sect. 1

Dear Mr. Hampshire, Ms. Zimmerman, Ms. Lourenco, Mr. Wydler, and Mr. and Mrs. Quattrone:

This is in response to your letters received on July 3, June 4, April 26 and April 10, 2019, respectively.

REQUEST: Request for a determination that the Kurtz Property referenced above be deemed either a congregate living facility or a medical care facility, which can include an inpatient treatment facility—not a group residential facility.

Department of Planning and Development Zoning Administration Division

17955 Government Center Parkway, Suite 807 Fairfax, Virginia 22035-5507

Phone 703-324-1314 Fax 703-803-6372

ww w.fairfaxcoun ty.govip I an n ng- development

PLANNING & DEVELOPMENT

Mr. Gifford Hampshire, Ms. Zimmerman, Ms. Lourenco, Mr. Wydler and Mr. and Mrs. Quattrone August 21, 2019 Page 2

ZONING INFORMATION AND BACKGROUND: Zoning: The Kurtz Property has a lot area of 24,759 square feet, is zoned to the R-2 District, and is part of the Salona Village subdivision. It is developed with a single-family dwelling constructed in 2011. The property is not subject to any proffered conditions, or special exception, special permit or variance.

Relevant Zoning Ordinance Definitions:

CONGREGATE LIVING FACILITY: A facility that provides housing and general care on a permanent or temporary basis, including the provision of on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff. This includes facilities providing in-patient alcohol and addiction detoxification services and for the care of more than eight mentally ill or developmentally disabled patients. This term does not include a GROUP HOUSEKEEPING UNIT, GROUP RESIDENTIAL FACILITY, ASSISTED LIVING FACILITY, SCHOOL OF SPECIAL EDUCATION, or any facility providing services or treatment to anyone who does not reside at the facility.

GROUP RESIDENTIAL FACILITY: A group home or other residential facility, with one or more resident or nonresident staff persons, in which no more than: (a) eight (8) mentally ill, intellectually disabled or developmentally disabled persons reside and such home is licensed by the Virginia Department of Behavioral Health and Developmental Services; or (b) eight (8) intellectually disabled persons or eight (8) aged, infirm or disabled persons reside and such home is licensed by the Virginia Department of Social Services; or (c) eight (8) handicapped persons reside, with handicapped defined in accordance with the Federal Fair Housing Amendments Act of 1988. The terms handicapped, mental illness and developmental disability shall not include current illegal use or addiction to a controlled substance as defined in Sect. 54.1 3401 of the Code of Virginia or as defined in Sect. 102 of the Controlled Substance Act (21 U.S.C. 802).

For the purpose of this Ordinance, a group residential facility shall not be deemed a group housekeeping unit, or ASSISTED LIVING FACILITY and a dwelling unit or facility for more than four (4) persons who do not meet the criteria set forth above or for more than eight (8) handicapped, mentally ill, intellectually disabled or developmentally disabled persons shall be deemed a CONGREGATE LIVING FACILITY.

MEDICAL CARE FACILITY: Any institution, place, building, or agency that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients, suffering from a health condition, illness, disease, injury, deformity, or other physical or mental condition. This use includes facilities that offer or provide acute, chronic, convalescent, aged, nursing, or mental/intellectual/physically disability services and


includes facilities offering or providing these services. For the purposes of this Ordinance, this term includes a HOSPITAL, ASSISTED LIVING FACILITY, NURSING FACILITY, and other facilities that may be described as a sanatorium/sanitarium, mental hospital, intermediate/extended care facility, medical school, and other similar institutions or facilities. This term does not include CONGREGATE LIVING FACILITY, CONTINUING CARE FACILITY, GROUP RESIDENTIAL FACILITY, or INDEPENDENT LIVING FACILITY, physician's office, first aid station for emergency medical or surgical treatment, medical laboratory, or medical office providing out-patient services.

Background: On May 15, 2019, I issued a determination regarding the proposed use by Newport Academy of the three Davidson Properties (1620, 1622, and 1624 Davidson Road). Based on the physical layout and the operational characteristics of that proposed facility, determined that the use on those properties was most similar to a congregate living facility, because it was intended to operate as a single residential facility serving more than 8 mentally ill persons receiving on-site supportive services. At that time, I specifically stated that the determination letter did not address the Kurtz Property, which was still under review. Newport Academy is no longer proposing to establish operations at the Davidson Road properties and Virginia Health Operations, LLC, d/b/a Newport Academy has instead filed a revised license application with the Virginia Department of Behavioral Health and Developmental Services (VDBHDS) to operate a single Mental Health Children's Residential Service for up to 8 female residents ages 12-17 to be located at 1318 Kurtz Road.

In light of the revised license request and your requests for a zoning determination on the Kurtz Property, I requested additional information from Newport Academy regarding the operation of the facility proposed for that site. In general, the questions concerned the minimum length of stay of the individuals, the number of resident and nonresident staff, how much floor area would be used as office, parking(for staff, visitors, and family events), and the maximum number of cars anticipated at any one time.

In response, Newport Academy indicated that at the time of admission a resident is expected to stay between 45 and 90 days, with the average stay between 45 and 60 days. They further noted that Newport Academy is not a drug rehabilitation facility and does not provide detoxification services. Further, no individual who enters treatment with Newport Academy is currently using illicit substances. While Newport Academy indicated that no staff will live at the Kurtz Property, they did not specify how many nonresident staff will be on site at any one time. They did indicate that mornings will typically be set aside for academics and individual therapy, afternoons for group therapy (including music therapy, life skills counseling, yoga, meditation and other fitness activities), and evenings for additional study and therapy as needed. Meals will be eaten in a family-style setting and residents are engaged in programming and under staff supervision from the time they wake up, until they go to sleep with "awake" supervising staff on site 24 hours per day. However, based on a review of the license

Mr. Gifford Hampshire, Ms. Zimmerman, Ms. Lourenco, Mr. Wydler. and Mr. and Mrs. Quattrone August 21, 2019 Page 4

application for the Kurtz Road property, it appears that at least 8 staff members will be on site from approximately 8:00 am to 7:00 pm.

With regard to parking, Newport Academy noted that the driveway can accommodate up to 8 vehicles, not including the 3-car garage, and stated that they will take appropriate actions—through the use of a shuttle, off-site parking and other means as necessary—to minimize the number of vehicles (whether staff or visitors) parked at the property at any one time.

DETERMINATION: I have thoughtfully considered your respective positions and carefully reviewed the revised license application submitted by Newport Academy to VDBHDS. Based on a review of the revised license application and the facts available and as outlined above, it is my determination, in accordance with Zoning Ordinance Sect. 18-103, that the proposed use of the Kurtz Property meets the definition of and is most similar to a Group Residential Facility. Newport Academy plans to operate a single residential facility, licensed by VDBHDS, with one or more resident or nonresident staff persons, in which no more than 8 mentally ill, intellectually disabled or developmentally disabled persons reside; the home will not provide any in-patient alcohol or addiction detoxification services.

A congregate living facility, similar to a group residential facility provides on-site supportive services on A permanent or temporary basis in a supervised setting with on-site counselors or other staff. But the definition of congregate living facility specifically includes facilities caring for more than 8 mentally ill or developmentally disabled patients and providing in-patient alcohol and addiction detoxification services. Newport Academy is not providing in-patient alcohol and addiction detoxification services, and it provides care for no more than 8 individuals. The congregate living facility definition also specifically excludes a group residential facility. Similarly, while the definition of a medical care facility includes facilities that offer or provide mental/intellectual/physical disability services, it specifically excludes a group residential facility or a congregate living facility.

This determination also comports with the provisions set forth in Va. Code Sect. 15.2-2291(A) which states that:

Zoning ordinances for all purposes shall consider a residential facility in which no more than eight individuals with mental illness, intellectual disability, or developmental disabilities reside, with one or more resident or nonresident staff persons, as residential occupancy by a single family. For the purposes of this subsection, mental illness and developmental disability shall not include current illegal use of or addiction to a controlled substance as defined in § 54.1-3401. No conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such


facility. For purposes of this subsection, "residential facility" means any group home or other residential facility for which the Department of Behavioral Health and Developmental Services is the licensing authority pursuant to this Code.

This determination is based on the facts and information available to date, including the revised license filed with VDBEIDS, and is applicable only to the Kurtz Property. Should facts or circumstances change, this determination is subject to change.

In addition, please note that this determination is not a written order or a notice of zoning violation; however, as a courtesy, please be aware it may be subject to appeal to the Fairfax County Board of Zoning Appeals in accordance with Part 3 of Article 18 of the Zoning Ordinance. Should you have any additional questions, please feel free to contact me at 703-324-1314.

Sincerely,

Leslie B. Johnson Zoning Administrator

cc: John W. Foust, Supervisor, Dranesville District Mavis Stanfield, Deputy Zoning Administrator, Permits Branch Jae Benz, Director of Licensing, VDBHDS, 1220 Bank Street, Richmond,

VA 23219 Sean F. Murphy, Esq., McGuire Woods LLP, 1750 Tysons Boulevard,

Suite 1800, Tysons, VA 22102 Michael Allen, Esq., Reiman, Dane & Colfax, PLLC, 1225 19th Street,

N.W., Suite 600, Washington, DC 20036 Monroe RE, LLC, 1318 Kurtz Road, McLean, Virginia 22101

County of Fairfax, Virginia To protect and enrich the quality of life for the People, neighborhoods and diverse communities of Fairfax County

Sent via US Mail and Email (sititurphainczaireivoodv.cam & mallenarelmanlaw.com)

August 21, 2019

Sean F. Murphy, Esq. McGuire Woods LLP 1750 Tysons Boulevard, Suite 1800 Tysons, VA 22102

Michael Allen, Esq. Reiman, Dane & Colfax, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036

Re: Use Determination Re: 318 Kurtz Road Tax Map Ref: 30-2 ((13)) 36 Zoning District: R-2 Salona Village Sect. 1

Dear Mr. Murphy and Mr. Allen:

I am writing in response to both your June 28, 2019, letter and your follow up letter dated August 5, 2019. The June 28 letter asked that I find Newport Academy's proposed use of 1318 Kurtz Road ("Kurtz Property") to be a group residential facility, rather than an inpatient treatment center or medical care facility (as requested in a June 4, 2019, letter to me from Katie Zimmerman and Christine Lourenco). Your August 5 letter was in response to my July 19 letter posing several questions about the operational characteristics of 1318 Kurtz Road. Your letter also offered a response to Mr. Gifford Hampshire's July 3 request to me for a zoning determination that the Kurtz Property be deemed a congregate living facility or a Medical care facility, not a group residential facility.

REQUEST: Request for a determination that the Kurtz Property is a group residential facility under the Fairfax County Zoning Ordinance and not a congregate living facility or medical care facility which is inclusive of an inpatient treatment facility.

ZONING INFORMATION AND BACKGROUND: Zoning: The Kurtz Property has a lot area of 24,759 square feet, is zoned to the R-2 District and is part of the Salona Village subdivision. It is developed with a single-family dwelling constructed in 2011. The property is not subject to any proffered conditions, special exception, special permit or variance.

ICU 4! NNIG 1 wk.?


12055 Government Center Padmay, Suite 807 Fairfax, Virginia 22035-5507

Phone 703-324-1314 Fax 703-803-6372

www, fairfaxcou n tv.gov/p lann in g-deve lopment

Sean F. Murphy, Esq. Michael Allen, Esq. August 21, 2019 Page 2

Relevant Zoning Ordinance Definitions:

CONGREGATE LIVING FACILITY: A facility that provides housing and general care on a permanent or temporary basis, including the provision of on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff. This includes facilities providing in-patient alcohol and addiction detoxification services and for the care of more than eight mentally ill or developmentally disabled patients. This term does not include a GROUP HOUSEKEEPING UNIT, GROUP RESIDENTIAL FACILITY, ASSISTED LIVING FACILITY, SCHOOL OF SPECIAL EDUCATION, or any facility providing services or treatment to anyone who does not reside at the facility.

GROUP RESIDENTIAL FACILITY: A group home or other residential facility, with one or more resident or nonresident staff persons, in which no more than: (a) eight (8) mentally ill, intellectually disabled or developmentally disabled persons reside and such home is licensed by the Virginia Department of Behavioral Health and Developmental Services; or (b) eight (8) intellectually disabled persons or eight (8) aged, infirm or disabled persons reside and such home is licensed by the Virginia Department of Social Services; or (c) eight (8) handicapped persons reside, with handicapped defined in accordance with the Federal Fair Housing Amendments Act of 1988. The terms handicapped, mental illness and developmental disability shall not include current illegal use or addiction to a controlled substance as defined in Sect. 54.1-3401 of the Code of Virginia or as defined in Sect. 102 of the Controlled Substance Act (21 U.S.C. 802).

For the purpose of this Ordinance, a group residential facility shall not be deemed a group housekeeping unit, or ASSISTED LIVING FACILITY and a dwelling unit or facility for more than four (4) persons who do not meet the criteria set forth above or for more than eight (8) handicapped, mentally ill, intellectually disabled or developmentally disabled persons shall be deemed a CONGREGATE LIVING FACILITY.

MEDICAL CARE FACILITY: Any institution, place, building, or agency that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients, suffering from a health condition, illness, disease, injury, deformity, or other physical or mental condition. This use includes facilities that offer or provide acute, chronic, convalescent, aged, nursing, or mental/intellectual/physically disability services and includes facilities offering or providing these services. For the purposes of this Ordinance, this term includes a HOSPITAL, ASSISTED LIVING FACILITY, NURSING FACILITY, and other facilities that may be described as a sanatorium/sanitarium, mental hospital, intermediate/extended care facility, medical school, and other similar institutions or facilities. This term does not include CONGREGATE LIVING FACILITY, CONTINUING CARE FACILITY, GROUP RESIDENTIAL FACILITY, or INDEPENDENT LIVING FACILITY,

Sean F. Murphy, Esq. Michael Allen, Esq. August 21,2019 Page 3

physician's office, first aid station for emergency medical or surgical treatment, medical laboratory, or medical office providing out-patient services.

Background: On May 15, 2019, I issued a determination regarding the proposed use by Newport Academy of the three Davidson Properties (1620, 1622, and 1624 Davidson Road). Based on the physical layout and other characteristics of the proposed facility, I determined that the use on those properties was most similar to a congregate living facility, because it was intended to operate as a single residential facility serving more than 8 mentally ill persons receiving on-site supportive services. At that time, I specifically stated that the determination letter did not address the Kurtz Property, which was still under review. Now Newport Academy is no longer proposing to establish operations at the Davidson Road properties and Virginia Health Operations, LLC, d/b/a Newport Academy has instead filed a revised license application with the Virginia Department of Behavioral Health and Developmental Services (VDBHDS) to operate a single Mental Health Children's Residential Service for up to 8 female residents ages 12-17 to be located at 1318 Kurtz Road.

In light of the revised license request and the various requests for a zoning determination on the Kurtz Property, my July 19 letter requested additional information regarding the operation of the proposed facility. In general, the questions related to the minimum length of stay, the number of resident and nonresident staff, parking (for staff, visitors, and family events) and the proposed amount of office space for use by Newport Academy staff.

Your August 5 letter did not fully respond to my questions, but you did indicate that at the time of admission a resident is expected to stay between 45 and 90 days, with the average stay between 45 and 60 days. You note that Newport Academy is not a drug rehabilitation facility and does not provide detoxification services; no individual who enters treatment with Newport Academy is currently using illicit substances. Further, you state that no staff will live at the Kurtz Property, but you did not indicate how many non-resident staff will be on site at any one time. You stated that my request for such information is solely within the purview of VDBHDS. (We have requested and received this type of information from other providers of residential mental health and disability services as part of similar use determination requests.) Based on a review of the license application for the Kurtz Road property, it appears that at least 8 staff members will be on site from 8:00 am to 7:00 pm. You indicate that mornings will typically be set aside for academics and individual therapy, afternoons for group therapy (including music therapy, life skills counseling, yoga, meditation and other fitness activities) and evenings reserved for additional study and therapy as needed. Meals will be eaten in a family-:Style setting, and residents are engaged in programming and under staff supervision from the time they wake up until they go to sleep, with "awake" supervising staff on site 24 hours per day.

Sean F. Murphy, Esq. Michael Allen, Esq. August 21, 2019 Page 4

With regard to parking, you note that the Zoning Ordinance does not limit the amount of parking on a residential lot, but that the driveway can accommodate up to 8 vehicles, not including the 3-oar garage. The Zoning Ordinance does have a minimum parking requirement for a single-family detached dwelling of 2 spaces per unit for lots with frontage on a public street (Par. 3 of Sect 11-103). For lots smaller than 36,000 square feet in the R-1 through R-4 Districts, the Ordinance also requires that all parking in the front yard be on a surfaced area, and in the R-1 and R-2 Districts no more than 25% of any front yard may be paved for parking purposes (Par. 8 of Sect. 11-102). It appears that the property currently complies with these provisions. However, any future paving or expansion of the driveway within the front yard could conflict with this provision. Finally, you indicate that Newport Academy will take appropriate actions—through the use of a shuttle, off-site parking, and Other means as necessary---to minimize the number of vehicles (whether staff or visitors) parked at the property at any given time.

DETERMINATION: Based on a review of Newport Academy's revised license application and the facts available and as outlined above, it is my determination, in accordance with Zoning Ordinance Sect. 18-103, that the proposed use of the Kurtz Property meets the definition of and is most similar to a Group Residential Facility, as long as the facility is licensed by the VDBHDS. Newport Academy plans to operate a single residential facility, with one or more resident or nonresident staff persons, in which no more than 8 menially ill, intellectually disabled or developmentally disabled persons reside. The home will be licensed by the VDBHDS and does not provide any in-patient alcohol and addiction detoxification services. While the definition of a medical care facility includes facilities that offer or provide mental/intellectual/physical disability services, the definition of medical care facility specifically excludes a group residential facility or a congregate living facility. This determination also comports with the provisions set forth in Va. Code Sect. 15.2-2291(A) which states that:

Zoning ordinances for all purposes shall consider a residential facility in which no more than eight individuals with mental illness, intellectual disability, or developmental disabilities reside, with one or more resident or nonresident staff persons, as residential occupancy by a single family. For the purposes of this subsection, mental illness and developmental disability shall not include current illegal use of or addiction to a controlled substance as defined in § 54.1-3401. No conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on such facility. For purposes of this subsection, "residential facility" means any group home or other residential facility for which the Department of Behavioral Health and Developmental Services is the licensing authority pursuant to this Code.

Sean F. Murphy, Esq. Michael Allen, Esq. August 21,2019 Page $

This determination is based on the facts and information available to date, including the revised license filed with VDMDS, and is applicable only to the Kurtz Property. Should facts or circumstances change, this determination is subject to change.

In addition, please note that this determination is not a written order or a notice of zoning violation; however, as atourtesy, please be aware it may be subject to appeal to the Fairfax County Board of Zoning Appeals in accordance with Part 3 of Article 18 of the Zoning Ordinance. Should you have any additional questions, please feel free to contact me at 703-324-1314.

Sincerely,

Leslie B. Johns n Zoning Administrator

cc: John W. Foust, Supervisor, Dranesville District Mavis Stanfield, Deputy Zoning Administrator, Permits Branch Jae Benz, Director of Licensing, VDBHDS, 1220 Bank Street, Richmond, VA 23219 Monroe RE, LLC, 1318 Kurtz Road, McLean, VA 22101 Gifford R. Hampshire, Esq., Blankingship and Keith, P.C., 4020 University Drive,

Suite 300, Fairfax, VA, 22030 Katie Zimmerman, 1502 Wasp Lane, McLean, VA 22101 Christine Lourenco, 6912 Southridge Drive, McLean, VA 22101 Meagan E. Costello, 1643 Kurpiers Court, McLean, VA 22101 Steve Wydler, 7009 Symphony Court, McLean, VA 22101 Robyn and David Quattrone, 7008 Symphony Court, McLean, VA 22101

BlankingshiPk' ekhPc 4020 University Drive, Suite 300 Fairfax, Virginia 22030 1:703.691.1235 F: 703.691.3913

July., 2019

Via Federal Express

Ms. Leslie B. Johnson Zoning Administrator Zoning Administration Division Department of Planning and Zoning 12055 Government Center Pkwy., Suite 807 Fairfax, VA 22035

Gifford R. Hampshire Writer's email: [email protected]

FAIRFAX. COUNTY RECEIVED

JUL 0 8 2019j

DlVSION OF ZONING ADMINISTRATION

oVn- 0‘51,11

Re: Request for Zoning Determination that 1318 Kurtz Road be determined to be a Congregate Living Facility or a Medical Care Facility, not a Group Residential Facility.

Dear Ms. Johnson:

This firm represents Matthew Desch who resides 1317 Kurtz Road, McLean, Virginia, Daniel Duval, who resides at 1214 Buchan Street, McLean, Virginia and Jason Hein, who resides at 1316 Kurtz Road, McLean Virginia (collectively, the "Landowners"). I reference your 15 May 2019 Use Determination ("Use Determination") regarding 1620 Davidson Road, McLean, Virginia, 1622 Davidson Road, McLean, Virginia, 1624 Davidson Road, McLean Virginia (collectively, the "Davidson Properties") and 1318 Kurtz Road, McLean, Virginia (the "Kurtz Property"). You determined that that the Davidson Properties constituted a single facility use most similar to a Congregate Living Facility requiring a special exception. You also stated that your determination did not address the Kurtz Road property because that location was still under review with Newport Academy then planning to submit another revised application to VD131-IDS to open its initial application at Kurtz Property.

You may know that, on June 11, 2019, Newport did, indeed, submit such a revised application under the name of Virginia Health Operations, LLC. (the "June 2019 Revision"), a copy of which is attached as Exhibit A. You will see that the June 2019 Revision shows Virginia Health Operations, LLC with a parent company of Monroe Capital Holdings, LLC and with a "Service Type" as "MH Children Residential Service" (as opposed to "M1-1 Children Group Home Residential Service").

You noted in the Use Determination that Newport's initial application "did not characterize its proposed service as a group home, as that would have limited its occupancy." You also observed that the applicant "did not characterize its use as a homelike single dwelling."

4020 University Drive, Suite 300, Fairfax, Virginia 22030 703.691.3_133 TEL I 703.693.3913 PAX I WWW.BKLAWVA.CONt

B&K Blankingship-

'Keith"

Leslie Johnson, Zoning Administrator July 3,2019 Page 2

By continuing to describe the "Service Type" as "MH Children Residential Service" and not "MH Children Group Home Residential Service" in the June 2019 Revision, Newport continues in its attempt to avoid the Zoning Ordinance limitations of "Group Residential Facility" and to instead focus on medical treatment, including substance abuse treatment, as opposed to residency in a homelike setting. Newport's focus on treatment, not residency, is patent in the "Service Description" section of the June 2019 Revision:

SERVICE DESCRIPTION

MISSION STATEMENT

At Newport Academy's Kurtz Road location, we believe in sustainable healing. In our Mental Health facility for up to 8 residents, we treat female adolescents, ages 12-17, guiding them from self-destruction to self-esteem, addressing the underlying causes of harmful behaviors. The Newport Academy program provides the safety, support, and above all, the unconditional love that teens and their families need in order to heal. By incorporating multiple modalities of

psychological and experimental therapies, and a dedication to treating the entire family, we offer a superior adolescent treatment program.

PHILOSOPHY

The Newport Academy philosophy is based on unconditional love, compassion, and acceptance. At our Kurtz road location, we will leverage over eleven years of company experience at locations throughout the country that have helped develop best practices in treating thousands of teens, depression anxiety, trauma,

substance abuse and eating disorders. Our approach provides sustainable healing through identifying and addressing our clients' underlying trauma(s)/attachment wounds. We meet our teens where they are, and provide a safe, accepting, and nurturing environment in which deep issues can surface and be addressed. 'When an adolescent arrives at Newport Academy, our compassionate staff loves them until they can love themselves. As authentic, positive connections with staff, peers, and family are explored and emerge, healing begins, and old, maladaptive behaviors are no longer needed. Fear is truly replaced with love, and wholeness is rediscovered.

At our treatment home, our board-certCd psychiatrists, psychologists, and

therapists have advanced degrees within the specializations of teen mental health,

substance abuse, depression in teens, teenage anXiety, and eating disordet.s. Owk therapists are often licensed as "P/id, or PsyD (Psychologist), LMFT (Licensed

2

B&K Blankingship!!, _Keith"

Leslie Johnson, Zoning Administrator July 3, 2019 Page 3

Marriage and Family Therapist), LCSW (Licensed Clinical Social Worker)). Every individual also has a licensed counselor—LPC (Licensed Professional Counselor), CADC (Certified Alcohol and Drug Counselor) and MD. The Newport Academy Treatment Teams meet daily to review and discuss plans and individuals' progress, sharing research and results to optimize each teen's curriculum and therapeutic growth track. We are accredited through the Joint Commission, the gold standard of treatment.

PERSONALIZED TREATMENT

Upon admission to the Newport Academy's Kurtz Road home, each adolescent is assigned an eight-person Treatment Team that develops a personalized program to ensure positive growth and sustainable healing. The Treatment Team consists of:

• Psychiatrist • Individual Therapist • Family Therapist • Medical Doctor/Pediatrician • Registered Nurse • Registered Dietician • Counselor • Clinical Director.

Exhibit A-13, Emphasis added.

Newport's "Service Description" in the June 2019 Revision is consistent with the description of Kurtz Property and the Davidson Properties in the National Provider Identifier Database ("NP!") that provides "Health Care Provider Taxonomy Codes", described therein as "a hierarchical code set that consists of codes, descriptions, and definitions . . . designed to categorize the type, classification, and/or specialization of health care providers." See Exhibit B-9. NPI describes "Newport Academy-Kurtz as follows:

Newport Academy-kurtz (Monroe Operations, Lie) (sic) is a drug rehab facility in McLean, Virginia. It is a Substance Abuse Residential Rehab Facility and provides treatment to people with drug addiction and other substance abuse problems. The NPI Number for Newport Academy-kurtz is 1316427214.

Exhibit B-1; https://npino.com/drug-rehab/1316427214-newport-academy-kurtz/. NPI lists "Newport Academy-Kurtz has having a "primary specialty" taxonomy code for "Psychiatric Residential Treatment Facility" (#3231300000X) and a secondary specialty of "Substance Abuse

3

B &K BlaniiingshiP K" eithp


Disorder Rehabilitation" (#3245000000X). See Exhibit B-10. The same is true for "Newport Academy-Davidson 1", Monroe Operations LLC, "Monroe Operations, LLC" (1620 Davidson Road)" and "Monroe Operatiohs, 1622 Davidson Road". See Exhibit B1-16 See also https://npidb.org/organizations/residential treatment/psychiatric-residential-treatment-

facility 323p00000x/1316427214.aspx.

Newport's "Service Description" in the June 2019 Revision is also consistent with its website's focus on medical treatment (including substance abuse), as opposed to residency in a homelike single dwelling. See https://wvvw.newportacademy.com. Newport describes its program as follows:

Newport Academy—Top-Rated Teen Rehab Center What We Treat

At Newport Academy, we bring teens from self-destruction to self-esteem by treating the underlying causes of high-risk behavior: We treat individuals, ages 12-20, struggling with teenage depression, teen anxiety, eating disorders, trauma and teenage substance abuse. Newport Academy is a different kind of teen rehab center. Through our clinical expertise and holistic care, we empower teens and restore families.

Exhibit C-1. (Emphasis added). Even Newport's description of its "Residential Program" is focused on medical treatment, not residency in a homelike setting:

Each adolescent's individual treatment program incorporates evidence-based clinical, experimental, and academic elements for superior, comprehensive care. Our integrative residential treatment center for teens consists of a minimum of 30 hours of clinical and experiential therapy each week, plus 20 hours of academic study and tutoring.

Exhibit C-2.

And Newport touts its bona fides in mental health treatment for "teen treatment centers" like that classified by NPI for the Kurtz and Davidson Properties.

More than 500 years of clinical 8; therapeutic expertise

Newport Academy has assembled the best adolescent mental health treatment staff in the country to serve as the foundation for our unparalleled teen treatment centers. The Newport Academy team includes more than 200 clinicians,

4

B&K Blankingship'L n.eith"

Leslie JOhnson, Zoning Administrator July 3, 2019 Page 5

therapists, and specialists from all over the world, with a wide range of degrees and experience.

Exhibit C41.

Virginia Code § 15.2-2291 requires zoning ordinances to consider a residential

facility where no mom than eight individuals with mental illness, intellectual disability or developmental disabilities reside, with one or more nonresident staff persons, as residential occupancy by a single family and that mental illness and developmental disability "shall not include current use of or addition Ito a controlled substance as defined in §54.1-5401. Fairfax County Zoning Ordinance § 20,200 complies by providing a definition of a "Group Residential Facility" consistent with § 15.2-2291, including that the facility be a "group home or other residential facility" where "mentally ill, intellectually disabled or developmentally disabled persons reside" with the proviso that such persons shall not include the current use or addition to a controlled substance. As observed by Fairfax Circuit Court some 22 years ago:

Both the Virginia Code and the Fairfax County Ordinances at issue (collectively referred to as "statutes") were created in response to the 1988 Amendments to the Federal Fair Housing Act, Title VIII of the Civil Rights Mt of 1968 ("FHA"). The purpose behind the FHA amendments is to prohibit discrimination in housing opportunities on the basis of status, including those persons handicapped by reason of mental illness.

Board of County SupervisOrS of Fairfax CoUnly, et. al. v. Board of Zoning Appeals of

Fairfax County; Law No. 150970; Alternative House, Inc. v. Board of Zoning Appeals of

Fairfax County Law No. 150851 (April 7, 1997. Fairfax Circuit Court), p. 5: (emphasis added).

The June 2019 Revision, NPI database and Newport website demonstrate convincingly that the purpose of the Newport-Kurtz Treatment Home (as well as the Newport Davidson Treatment Homes) has nothing to do with creating a housing opportunity for persons handicapped by reason of mental illness but everything to do with a providing medical treatment to emotionally troubled teens, including those suffering from substance abuse. The last sentence of Newport's "Mission Statement" bears repeating.

By incorporating multiple modalities ofpsychological and experimental

therapios, and a dedication to treating the entire family, we offer a superior adolescent treatment program.

5

BlankingshiPK'' eithPe

Leslie Johnson, Zoning Administrator July 3,2019 Page 6

The Kurtz and Davidson "treatment homes" are, thus, "homes" in name only. That thin veil of nomenclature does not obscure the repeatedly self-described purpose of the facilities to provide "multiple modalities of psychological and experimental therapies" not only to the troubled teen, but also the teen's "entire family"I, as opposed to creating residential housing opportunities to mentally ill persons consistent with the purpose of the FHA, Va. Code § 15.2-2291 and Zoning Ordinance § 200-200.

It is enough that Newport trumpets its treatment plan as addressing "substance abuse" as well as depression, anxiety, trauma and eating disorders because not only "addiction" because the mere "illegal use of controlled substances" would disqualify the Kurtz treatment facility from "Group Residential Facility" status. But the focus on all kinds of treatment, as opposed to the provision of residential housing opportunities renders the Kurtz and Davidson proposals most like either a "Congregate Living Facility" or "Medical Care Facility", defined by § 20-200 as:

CONGREGATE LIVING FACILITY: A facility that provides housing and general care on a permanent or temporary basis, including the provision of on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff. This includes facilities providing in-patient alcohol and addiction detoxification services and for the care or more than eight mentally ill or developmentally disabled patients. This term does not include GROUP HOUSING KEEPING UNIT, GROUP RESIDENTIAL FACILITY, ASSISSTED LIVING FACILITY, SCHOOL OF SPECIAL EDUCATION, or any facility providing services or treatment to anyone who does not reside at the facility.

MEDICAL CARE FACILITY: Any institution, place, building or agency that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients, suffering from a health condition, illness, disease, injury, deformity, or physical or mental condition. This use includes facilities that offer or provide acute, chronic, convalescent, aged, nursing, or mental/intellectual/physically (sic.) disability services and includes facilities offering or providing these services. For the purposes of this Ordinance, this term includes a HOSPITAL, ASSISTED LIVING FACILITY, NURSING FACILITY and other similar institutions or facilities. This term does not include CONGREGATE LIVING FACILITY, GROUP RESIDENTIAL FACILITY, or INDEPENDENT LIVING FACILTY, physician's office, first aid station

Newport repeats this clairn on its website.

6

Blankingship iceith"


for emergency medical or surgical treatment, medical laboratory, or medical office providing out-patient services.

The Zoning Ordinance definition of "Group Residential Facility" explicitly provides that "a dwelling unit or facility for more than four (4) persons who do not meet the criteria [of that definition] . . .shall be deemed a CONGREGATE LIVING FACILITY." The repeated disclosure in the June 2019 Revision, the Newport Website and the NPI that treatment at the Kurtz and Davidson treatment homes includes that of "substance abuse" means that you are constrained by the Zoning Ordinance to determine that those facilities must be deemed "Congregate Living Facilities." 2

In light of Newport's repeated claims, however, that it treats the "entire family", the Kurtz and Davidson centers may, instead, be more like a Medical Care Facility since the above definition of Congregate Living Facility specifically excludes "a facility providing services or treatment to anyone who does not reside at the facility". And the apparent treatment of both inpatients (the mentally or troubled teens) and outpatients (presumably parents and siblings) is most like an "institution, place, building, or agency that offers medical, psychiatric, or surgical care to two or more persons, primarily as inpatients". See definition Of "Medical Care Facility", above. You may determine, therefore, that Newport's secondary treatment of family member outpatients renders the Kurtz and Davidson operations to be more like a Medical Care Facility than a Congregate Living Facility.

Regardless, mine of the proposed facilities falls within the definition of Group Residential Facility or within intent of the FHA, Va. Code § 15.2-2291 and Zoning Ordinance 20-200 to provide residential housing opportunities to mentally handicapped persons. In this regard one must appreciate that the Code of Virginia enables the Virginia Department of Behavioral Health and Developmental Services (VDBHDS) to regulate not on only "group homes" but also all sorts of "residential facilities" for persons with mental illnesses. See Va. Code Ann. § 37.2-408(B). The regulations promulgated under this authority, thus, distinguish between "Group Home" and "Residential Treatment

2 You may recall the statement of Newport's agent, Mr. Jamison Monroe, at the 24 April 2019 McLean High School meeting that the "primary diagnosis" of adolescents who would be treated at the Davidson and Kurtz properties was "mental health issues" and that the facilities were not "drug rehabilitation center or methadone clinics". This statement certainly at least implied—consistent with the June 2019 Revisions, NPI Taxonomy Codes and the Newport Website"--that substance abuse treatment would be part of the treatment plan as at least a secondary diagnosis.

7

B iKK Blankingship h_eith"c


program", with the former being defined as "a children's residential facility that is a community-based, homelike single dwelling or its acceptable equivalent" and the latter not being restricted to single family dwellings or equivalent and allowing for "medically-necessary, out-of-home programs designed to provide necessary support and address mental health, behavioral, substance abuse, cognitive or training needs of a child or adolescent". 12 VAC35-46-1 0.3 This regulatory distinction appropriately parallels the Zoning Ordinance distinction between Group Residential Facility on the one hand and Congregate Living Facility and Medical Care Facility on the other. See infra. As you suggested in the Use Determination, the Zoning Ordinance and Virginia Code/Administrative Code are consistent in limiting the use of single family dwellings to those that do not treat substance abuse and focus on creating residential housing opportunities for mentally ill children in a homelike single dwelling.

By counsel's letter dated 28 June 2019, Newport contends that that 15.2-2291 divests you of authority to interpret the Zoning Ordinance. Specifically, counsel states that VDBDS licensure "ipso facto" deprives you of power to determine that particular use is not a "Group Residential Facility" as defined by the Fairfax County Zoning Ordinance or to determine that such use is most similar to another use defined by the Zoning Ordinance such as a Medical Care Facility or a Congregate Living Facility. Counsel fails cite any authority for this proposition and such would directly contradict the power the General Assembly granted to zoning administrators as the sole authority to render interpretations of zoning ordinances. See Va. Code Ann. .§ 15.2-2286(4). Further, and as discussed above, Newport has failed to apply for the VDBHDS designation of "Mli Children Group Home Residential Service" and, in any event, the VDBFIDS has yet to grant a permeant license of any sort for the Kurtz facility.

For all of the above reasons, Messrs. Desch, Duval and Hein respectfully request that you determine that the proposed Newport Kurtz treatment "home" is most like either a Congregate Living Facility or a Medical Care Facility and, in any event, not a "Group Residential Facility.

Thank you for your kind attention to this request. Of course, please do not hesitate to contact me with questions.

3 These two different categories of facilities correspond to "Hli Children Group Home Residential Service" and MH Children Residential Service" on the "Service Type" section of the VDBHDS application for licensing form. It is telling, therefore, that Newport continues to eschew the "MH Children Group Home Residential Service" in its "Service Type" description within the June 2019 Revision.

Ei&K Blankingship'L. ts.eith"


Sincerely,

Gifford R. Hampshire

ORH/kb Enclosure (as stated)

cc: Matthew Desch Daniel Duval Jason Hein Elizabeth D. Teare, County Attorney Sean F. Murphy, Esq.

9

JUN 04 2019

FAIRFAX COUNTY RECEIVED

DIV:SION OF ZONING ADMINISTRATION

Katie Zimmerman 1502 Wasp Ln. McLean, VA 22101 [48th District]

Christiane Lourenco 6912 Southridge Drive McLean, VA 22101 [48th District]

June 4, 2019

Via Email: [email protected] Leslie Johnson, Zoning Administrator Department of Planning and Zoning 12055 Government Center Parkway Fairfax, VA 22035

Re: Zoning Determination Request for Psychiatric Residential Treatment Facility

Dear Ms. Johnson,

I am writing to thank you for your recent help with the situation in McLean concerning Newport Academy's efforts to open Psychiatric Residential Treatment Facilities in residential zones. You issued a determination that the proposed use of the three contiguous Davidson Properties as psychiatric residential treatment facilities is most similar to a "Congregate Living Facility" rather than a "Group Living Facility" pursuant to Fairfax County's zoning definitions.

However, this does not address the proposed use of a psychiatric residential treatment facility as a "Group Living Facility" pursuant to Fairfax County's zoning definitions. As defined by VA Codel, an "inpatient psychiatric facility" or "IPF" means a private or state-run freestanding psychiatric hospital or psychiatric residential treatment center. Fairfax County zoning defines a "Medical Care Facility" as any facility that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients.

This research done by McLean residents suggests that a valid argument can be made that psychiatric residential treatment facilities are in fact Medical Treatment Facilities pursuant to Fairfax County Zoning which have, we believe, stricter zoning regulations. This would, in our opinion also apply to the NA facility at 1318 Kurtz Road (or any other NA facility) as pursuant to this webs1te2 their primary specialty is listed as "Psychiatric Residential Treatment Facility" which according to the Virginia statute is an inpatient psychiatric facility which could arguably be considered a Medical Care Facility.

For the above reasons, the McLean community questions the use of 1318 Kurtz Road (or any other NA facility) as a Group Residential Facility and respectfully requests a formal written determination on whether a Psychiatric Residential Treatment Facility, as an inpatient psychiatric facility, should be categorized as a "Medical Care Facility" that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients.

12VAC30-130-850. Definitions. Part XIV. Residential Psychiatric Treatment for Children and Adolescents. 2 httos://noino.com/drug-rehab/1316427214-newoort-academy-

kurtzPfbclid=lwAR1N1MP2cS0i f8HaA5KniSUR3aKKNIptwiLyyJQN17dDnA5PlaAORsKoWoM

Please know that this zoning determination request is an integral part of our common goal - to increase the oversight and regulation of (but not the exclusion of) all Group Homes' serving Disabled Persons to (a) ensure compliance with but not abuse of the Federal Fair Housing Act and applicable Federal, Virginia and Fairfax County laws and regulations; (b) ensure the health and safety of all residents of Group Homes; and (c) preserve not only the goals' of Group Homes but the characteristics of residential neighborhoods'.

Sincerest Thanks,

/s/ Katie Zimmerman /s/ Christiane Lou renco

Katie Zimmerman and Christiane Lourenco

CC Via Email: Del. Kathleen Murphy: DelKMurphyPhouse.virginia.gov; Del. Rip Sullivan: [email protected]; John Foust: DranesvillePfairfaxcounty.gov; Chairman Bulova: [email protected]

3 Group Home to include both "traditional" and "transitional" community residences, residential treatment facilities, children's residential facilities, residential facilities, etc., in which the residents are a class of Disabled Persons. 4 "Community residences must locate to achieve their main goals: normalization and community integration... ...community residences that locate too close to one another undermine their ability to achieve normalization and community integration. Clustering community residences on a block can create a de facto social service district and create an institutional atmosphere. A rationally-based spacing requirement benefits the protected class: people with disabilities." See Daniel Lauber, "A Real LULU: Zoning for Group Homes and Halfway Houses Under the Fair Housing Amendments Act of 1988" John Marshall Law Review, Vol. 29, No 2, Winter 1996, p. 369-407. 5 Courts have, on occasion, upheld local zoning authority if a city demonstrates that a group care facility would substantially affect the character of a neighborhood." See Ted Gathe, "Regulating Group Homes in the Twenty First Century: The Limits of Municipal Authority", April 2013, p. 6-18.

Robyn & David Quattrone 7008 Symphony Court

McLean, VA 22101 Cell: 202-841-7321

April 26, 2019

Leslie Johnson Zoning Administrator, Fairfax County 12055 Government Center Pkwy. Fairfax, VA 22035

FAIRFAX COUNTY

APR 26 2019

DIVLON OF ZO.SiNG ALMNISTRATION _

201 6i- 031/(0

RE: REQUEST FOR DETERMINATION THAT THE FOLLOWING FOUR PROPERTIES BE CONSIDERED CONGREGATE LIVING FACILITIES • 1620 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 0030C1 • 1622 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 0030B1 • 1624 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 0030A1 • 1318 Kurtz Road, McLean, VA 22101 / TAX MAP # 0302 13 0036

Dear Ms. Johnson:

My principal residence is 7008 Symphony Court which shares a fence line with one of the above-referenced Davidson Road properties and is approximately one mile from the Kurtz Road property (collectively, the "Monroe Properties"). The Monroe Properties were each purchased by the same entity (Monroe RE LLC) within the last 12 months. As we are all now aware, Monroe RE LLC intends to install a treatment facility in each of these four homes with up to eight patients in each home (32 total). I attended the April 24, 2019 meeting at McLean High School which you and other state and local officials attended along with Jameson Monroe, Founder and CEO of Newport Academy, which will operate these four entities.

Based on the law and Mr. Monroe's representations at the hearing, I hereby submit this request for determination that the Monroe Properties, individually and collectively, do not qualify as a Group Residential Facility as defined by local zoning laws. We believe that any of the following provides sufficient basis to grant my Request for Determination that these are Congregate Living Facilities.

The Monroe Properties are Each Congregate Living Facilities, Not Group Residential Facilities

While the parties involved —from Monroe/Newport to the government officials representing the residents of McLean — seem to have conceded that Newport's proposed facilities fall under the definition of Group Residential Facility, even a cursory reading of the Fairfax County Zoning

Ordinance reveals that to be an inaccurate interpretation. The four proposed facilities fall squarely within the definition of Congregate Living Facilities.

The definition of a Group Residential Facility is contained in Fairfax County Zoning Ordinance and states (emphasis added):

A group home or other residential facility ... in which no more than ... (c) eight (8) handicapped persons reside, with handicapped defined in accordance with the Federal Fair Housing Amendments Act of 1988....

A Congregate Living Facility is defined in the Zoning Ordinance as follows (emphasis added):

A facility that provides housing and general care on a permanent or temporary basis, including the provision of on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff.

While ample attention has been given to the number of persons that may take advantage of the services provided by either type of facility, merely cutting off occupancy at eight persons receiving treatment is not sufficient to receive safe harbor treatment under the definition of Group Residential Facility. First, the definition of a Group Residential Facility refers to people who "reside" in the facility, while the definition of a Congregate Living Facility focuses that can be care provided on a "temporary" basis.1 Second, the latter definition focuses on the fact that services are provided as the fundamental purpose of the facility, and references the exact type of services to be provided by Monroe/Newport.

"Reside" vs. "Temporary"

Mr. Monroe's statement at the April 24 meeting confirmed that the average length of stay for a given patient is 6 to 10 weeks — 42-70 days. The key question, then, becomes who can qualify a someone who "resides" in such a facility?

• Virginia tax law defines a resident as follows: "A person who lives in Virginia, or maintains a place of abode here, for more than 183 days during the year, or who is a legal (domiciliary) resident of the Commonwealth, is considered a Virginia resident for income tax purposes." https://tax.virginia.gov/residency-status; see also Code of Virginia Section 58.1-302 and 23VAC10-110-30 (emphasis added).

Basic math tells us that Newport patients are not residents under this definition.

• Virginia law also includes definitions for "domiciliary" residents:

The definition of Congregate Living Facility also references care on a "permanent" basis but based on length of patient stay, that part of the definition is inapplicable here.

In making this determination [if one is a "domiciliary" resident] consideration is given to a number of factors, including, but not limited to the following; sites of real and tangible property, location of savings and checking accounts, motor vehicle registration and licensing, motor vehicle operator's license, voter registration, membership in clubs and civic groups, place of business, profession or employment, charitable contributions, location of schools attended by children, length of time of residence, place of birth and marriage, residence of family, reason for abandoning or acquiring domicile, and, in the case of a minor or married person, domicile of parents, husband, or wife and/or children. No single factor is dispositive in determining domicile; rather the factors are examined collectively to determine if the intent to acquire or abandon Virginia domicile exists.

Plainly, a teenager receiving mental health services for less than three months meets none of these requirements individually, let alone meets them collectively.

• Nor are these patients tenants, landlords, or owners of any real property in the way one would typically consider when determining whether someone is a resident. Rather, they are more akin to hotel guests or "licensees" who have a temporary right to be in a place, but who can be removed at any time as they have no legal interest in the property.

Indeed, a person spending less than three months in a given location is the very antithesis of a resident and the very definition of someone occupying that facility to receive services on a "temporary" basis.

Services Provided

Also significant is that the definition of Group Residential Facility focuses on the nature of the persons who reside there and the specific disabilities that qualify them for residence. Conversely, the definition of Congregate Living Facility focuses on the type of service provided, making it clear that the purpose of the facility is to provide a place for a patient to receive those services. Notably, the services mentioned, "the provision of on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff," are exactly the services Newport plans to provide.

Accordingly, there can be no other conclusion than that the Monroe Properties are Congregate Living Facilities. Any other conclusion requires a myopic focus on the number of patients rather than the quality and character of the group facility. While Newport Academy desperately wishes to avoid the Congregate Living Facility label because such use would require a special exception under criteria Newport Academy cannot possibly meet, it simply cannot do so in this circumstance.

All Four Homes in McLean Should be Viewed on an Aggregated Basis

The Monroe Properties, three of which are on the same street and the fourth of which is one mile away, should be evaluated not as four single family homes, but as one aggregated facility. Under this view, these facilities also would be regarded as a Congregate Living Facility — in addition to the reasons above — by virtue of exceeding the eight person occupancy limit.

First, three of the four homes are contiguous and have a common fence surrounding them, evidencing that they will be run as one compound.

Second, it is clear that these homes will share certain resources in terms of cleaning, food service, and other basic daily needs, including possibly shared caregivers such as counselors, therapists, yoga teachers, and art and music therapy instructors. Indeed, neighbors have already made the acquaintance of the interior designer who confirmed she is working on each of the Davidson Road homes and have seen the construction and renovation crews traverse from home to home. Mr. Monroe did not dispute the notion of certain shared resources at the April 24 meeting, and indeed suggested that he purchased three homes next to one another to "mitigate the impact."

Zoning laws are in place to protect the residential feel of a neighborhood. Every government official who attended the April 24 meeting agreed that they did not endorse the establishment of this type of facility in three homes on one street because they will fundamentally change the nature and character of the neighborhood. The reason they will change the neighborhood is because they constitute one facility operating out of four separate buildings — an impermissible outcome under the zoning laws and one which, as noted, requires a special exception for which Newport does not qualify.

DOJ/HUD Joint Statement

The DOJ and HUD Issued a Joint Statement on Nov 10, 2016 which in paragraph 19 provides a roadmap for you to block this obvious commercial use in light of your very valid concerns about the Fair Housing Act. Here is a link to the Joint Statementa and the relevant section is reprinted below. The bottom line is that not every concern about a group home is discriminatory in nature and group homes may not operate in a supervisory vacuum using the FHA as a sword and shield. What the Q&A below tells you is that the concerns of local residents, such as those raised at the meeting, may be considered and should not automatically be considered discriminatory. You may act here, in accordance with the arguments outlined above, without running afoul of Federal law.

2https://www.justice.gov/opa/file/912366/download?fbclid=lwAR2KNMOg2bVUV7Rj6eui2NOrx mit5241c43_7tmVReiSUJTpv7qSQ_wFYY

19. Can a local government consider the fears or prejudices of neighbors in deciding whether a group home can be located in a particular neighborhood?

In the same way a local government would violate the law if it rejected low-income housing in a community because of neighbors' fears that such housing would be occupied by racial minorities (see Q&A 5), a local government violates the law if it blocks a group home or denies a reasonable accommodation request because of neighbors' stereotypical fears or prejudices about persons with disabilities. This is so even if the individual government decision- makers themselves do not have biases against persons with disabilities.

Not all community opposition to requests by group homes is necessarily discriminatory. For example, when a group home seeks a reasonable accommodation to operate in an area and the area has limited on-street parking to serve existing residents, it is not a violation of the Fair Housing Act for neighbors and local government officials to raise concerns that the group home may create more demand for on-street parking than would a typical family and to ask the provider to respond. A valid unaddressed concern about inadequate parking facilities could justify denying the requested accommodation, if a similar dwelling that is not a group home or similarly situated use would ordinarily be denied a permit because of such parking concerns. If, however, the group home shows that the home will not create a need for more parking spaces than other dwellings or similarly-situated uses located nearby, or submits a plan to provide any needed off-street parking, then parking concerns would not support a decision to deny the home a permit.

Even the concern cited as an example here is one which could and should serve to block the proposed sites. Mr. Monroe indicated at the April 24 meeting that he anticipated at least nine cars at each home at any given time. While he suggested there was enough parking for that many cars at each location (notably attained by paving over the front lawns of these former homes), that should be verified and additional questions should be asked regarding parking for additional staffing, visitors, and vendors. Indeed, this level of parking does not address the purported claims on his website of 4:1 and 5:1 staff to patient ratios, which if true would yield the need for exponentially more parking. Even at the claimed levels, that equates to an additional 27 cars at a time on Davidson Road, an already congested road where there are near misses with school and neighborhood kids every day. Moreover, both Davidson and Kutrz Roads are extremely narrow with very little room to maneuver, and Davidson Road is already filled each day with student parking. Please see attached photographs of Davidson Road.

This is just one complaint among many raised by concerned citizens that should be investigated pursuant to the above guidance from the Department of Justice and Department of Housing and Urban Development.

We appreciate your time and attention to this matter and look forward to hearing back from you at your earliest convenience.

Very truly yours,

/s/ /s/ Robyn C. Quattrone David C. Quattrone

Cc: John Foust, Dranesville Supervisor Delegate Rip Sullivan Delegate Kathleen Murphy Beth Teare, County Attorney Jameson Monroe, Newport Academy

Attachments

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April 8, 2019

Leslie Johnson Zoning Administrator, Fairfax County 12055 Government Center Pkwy. Fairfax, VA 22035

Steve Wydler 7009 Symphony Court

McLean, VA 22101 Cell: 703-851-8781

FAIRFA*T. RF •

APR 10 2019

DI/:ON OF _ZOI\JING ADMINISTRATION

2019- 03oo

RE: REQUEST FOR DETERMINATION THAT THE FOLLOWING 3 PROPERTIES BE CONSIDERED ONE "GROUP LIVING FACILITY": • 1620 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 0030C1 • 1622 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 003061 • 1624 Davidson Road, McLean, VA 22101 / TAX MAP #0303 01 0030A1

Dear Ms. Johnson:

My principal residence is 7009 Symphony Court which is adjacent to the above-mentioned three Davidson Road properties (collectively, the "Monroe Properties") which are all zoned R-3. The Monroe Properties were purchased by the same entity (Monroe RE LLC, copied) within the last 12 months. It has come to my attention that Monroe RE LLC intends to install an "Assisted Living" facility in each of these three homes with up to eight residents in each home (24 total). I understand from a phone conversation with your Fairfax County Zoning Department that Monroe RE LLC is relying on Section 2-502 of Article 2 of the Fairfax County Zoning Ordinance which allows a dwelling unit to house a "group residential facility".

I hereby submit this request for determination that the common ownership (and/or same control group) of three properties in close proximity to each other (in this case, they are contiguous) in a residential neighborhood be deemed one (1) "group residential facility" (and not three). Together, the Monroe Properties comprise approximately 30,000 square feet of finished space. The Monroe Properties will inevitably share resources (including without limitation parking, personnel, patients, materials/supplies, operations, etc) which is further reason for them to be deemed one "group residential facility".

Treating the Monroe Properties as one "Group Living Facility" is consistent with the letter and spirit of the federal, state and local laws. Allowing the Monroe Properties to operate three facilities in such close proximity to each other would create a "commercial compound" which is wholly inconsistent with the residential zoning of the neighborhood. By granting this request for determination, the Monroe Properties would be limited to no more than 8 residents in aggregate in accordance with Article 20's definition of "Group Residential Facility". Any resident occupancy beyond eight residents in aggregate across the Monroe Properties would be a "Congregate Living Facility" which would require a zoning variance.

One further point for consideration. Monroe RE LLC owns a fourth property located at 1318 Kurtz Road, McLean, VA 22101 (Tax Map # 0302 13 0036) which it also purchased within the last 12 months. Our understanding is that Monroe RE LLC intends to operate a fourth "Assisted Living" facility in that location. If this Kurtz facility shares any resources with the Monroe Properties (which they likely will), then all four properties would be one commercial enterprise and we would respectfully ask that Fairfax County deem all four entities one "Group Living Facility".

Thank you in advance for your attention to this matter.

Steve Wydler

cc: Monroe RE LLC Supervisor Foust All Households on Symphony Court, McLean, VA

McGuiieWoods LLP 1751/Tysons Boulevard

Suite 1800 Tysons, VA 22102-4215

Tel 703.712.5000 Fax 703.712.5050

www.mcguirewoods.com

Sean F. Murphy Direct: 703.712.5487 McGUIREWOODS

FAAFAX COUNTY

1

AUG 0 9 2019

RFC:1:-7 ,

DIV, SION OF ZONING ADMINISTRATION

<c)- 0(03-1 [email protected]

Direct Fax: 703,712.5243

August 5, 2019

BY ELECTRONIC AND FIRST CLASS MAIL

Leslie B. Johnson Fairfax County Zoning Administrator Department of Planning and Zoning Zoning Administration Division 12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035-5505

Re: June 4, 2019 Zoning Determination Request lbr 1318 Kurtz Road Tax Map Ref: 30-2 ((13)) 0036

Dear Ms. Johnson:

On behalf of Virginia Health Operations, LLC ("VHQ") and Monroe LE, LLC ("Monroe") (and collectively referred to as "Newport Academy,"), we write in response to your letter of July 19, 2019, requesting information about the proposed operation of 1318 Kurtz Road (the "Kurtz Property as a group home for adolescent girls with mental health diagnoses. We also address the claims contained in a July 3 letter to you from Gifford R. Hampshire (the "Hampshire Letter").

For the reasons outlined below, we believe that Newport Academy's proposed use of the Kurtz Property easily fits within the Zoning Ordinance's definition of a Group Residential Facility, and that it would be improper to characterize it in any other fashion.

A. Proposed Facility at Kurtz Road.

Since 2008, Newport Academy has assisted adolescents and young adults suffering from a variety of mental health issues which can impair their ability to attend school, to engage constructively with their families, and to develop positive relationships. For more than a decade, Newport Academy has been treating kids from McLean and Northern Virginia at locations out of state. Responding to requests from mental health professionals and parents noting the hardship of traveling to visit their children in distant locations, Newport Academy acquired the Kurtz Road property in early 2019 in order to provide residential services for these children much closer to home.

Newport Academy's interest in operations at the Kurtz Property is driven wholly by the demand for residential services of this kind. More specifically, Newport Academy intends to

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Leslie B. Johnson Fairfax County Zoning Administrator RE: June 4, 2019 Zoning Determination Request for 1318 Kurtz Road August 5, 2019 Page 2

operate. at the Kurtz Property a homelike environment for adolescent girls between 13 and 17 years of age struggling with depression, anxiety, trauma, and other mental health issues..

Though Newport Academy is still discussing specific programmatic elements with the Virginia Department of Behavioral Health and Developmental Services ("VDBHDS"), once opened, mornings will typically be set aside for academics and individual therapy, and afternoons for group therapy (including r11.4SiC therapy, life skills counseling, yoga, Meditation and other fitness activities). Evenings are reserved for additional study and therapy, as needed. All meals are eaten in a family-style setting, and residents are engaged in programming and under staff supervision from the time they wake up until they go to 'Sleep, with "awake" supervising staff on site 24 hours per day.

As we have made clear in previous correspondence, Newport Academy is not a "drug rehabilitation facility." It does not provide "detoxification", and no one who enters treatment with Newport Academy is currently using illicit substances.

B. VDBHDS Licens u re.

As you know, on June 11, 2019, Newport Academy submitted a revised licensure application with the VDBHDS for Kurtz Road ("Revised Application"). As discussed more fully in our letter of June 10, 2019, VDBHDS alone is empowered to determine whether an applicant meets the requirements for licensure. Absent a contrary determination from VDBHDS, you lack the authority to classify the Kurtz Property as a medical care facility, a congregate living facility or an inpatient treatment center. Under Virginia Code § 15.2-2291, VDBHDS licensure conclusively establishes that a group home for eight (8) or fewer residents is a "residential facility." Such a group home is thus a "Group Residential Facility" as that term is defined in § 20-300 of the Fairfax County Zoning Ordinance.

The detailed inquiries in your letter of July 19 raise two concerns. First, you appear to be invading the exclusive province of VDBHDS, and in a fashion contrary to the practice of Fairfax County zoning officials over the past 30 years. Second, your letter comes perilously close to violating federal provisions prohibiting certain inquiries about the disability of the prospective residents of Kurtz Road.

A determination that the Kurtz Property is a medical care facility, a congregate living facility or an inpatient treatment center would improperly supplant the statutory role assigned to VDBHDS under § 15.2-2291, which provides thatin]o conditions more restrictive than those imposed on residences occupied by persons related by blood, marriage, or adoption shall be imposed on [group residential facilities]." Accordingly, your inquiry should cease—as it has for zoning officials considering group homes in Fairfax County for more than 30 years—once VDBHDS determines that the Kurtz Property meets the basic statutory criteria of a group residential facility. Expanding your assessment beyond this permissible scope and assessing other factors such as residency and staffing decisions violates the basic premise of § 15.2-2291.


Similarly, such a determination would contradict the County's own position in previous litigation with respect to the relevant portions of the State Code and the Zoning Ordinance which, as remedial laws, must be construed liberally.' The invasiveness of your inquiries is also at odds with the County's actions in previous similar circumstances, such as the favorable determinations for group residential facilities located at 7809 Schelhom Road, 5343 Summit Drive, 10416 Burke Lake Road, or 8337 Lewinsville Road, among others.

The Americans with Disabilities Act and the Fair Housing Act constrain the County's inquiries concerning the disability of prospective residents of the Kurtz Property, effectively requiring the County to demonstrate that such inquiries are necessary to advance a legitimate governmental purpose which cannot be achieved without a less -discriminatory impact. See, e.g., U.S. Dep't of Justice, Americans with Disabilities Act, Title II Technical Assistance Manual, available at https://www.ada.gov/taman2.html#II-3.5300, at ¶ 11-3-5300 ("A public entity may not make unnecessary inquiries into the existence of a disability"). See also 24 C.F.R. § 100.202(c)("It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling, a person intending to reside in that dwelling after it is so sold, rented or made available, or any person associated with that person, has a handicap or to make inquiry as to the nature or severity of a handicap of such a person.") Given the County's decades-long deference to VDB1-IDS on group home issues, and the apparent influence of neighborhood opponents on your 2019 treatment of Newport Academy, it is difficult to understand how the inquiries in your July 19 letter are justifiable.

C. Response to July 19 Letter Requesting Information Regarding Operational Characteristic of the Kurtz Property.

Reserving all of its rights with respect to your actions and inquiries, Newport Academy is willing to provide the following information in response to your July 19 Letter:

• Inquiry Concerning Length of Resident Stays: The ruling in Board of

Supervisors of Fairfax County v. Board of Zoning Appeals, 1997 WL 1070562 (Fairfax Circuit Ct., April 7, 1997), renders your line of inquiry impermissible. Notwithstanding that, at a public forum held on April 24, 2019, Jamison Monroe made clear that, at time of admission, a resident is expected to stay between 45 and 90 days, and that the average actual stay is between 45 and 60 days.

• No Resident Staff: None of Newport Academy's staff will live at the Kurtz Property.

'See Post-Trial Memorandum of the Board of Supervisors. The Zoning Administrator, Alternative !Muse, Inc. and the Northern Virginia Partnership for Children, Board ofSzipervisors of .Fairfax County v. Board ofZoning Appeals, 1997 WL 1070562 (Fairfax Circuit Cl, April 7, 1997).


• Office Space for Business Operations: All of Newport's business operations—as distinct from residential mental health therapy—are conducted at its offices in Tennessee and California.

• Parking: The Zoning Ordinance does not contain a restriction or a limit on the amount of parking permitted on a residential lot — and as you can see from the attached photograph, the Kurtz Road Property can accommodate up to eight vehicles. Nonetheless, Newport Academy will take appropriate actions through the use of a shuttle, off-site parking and other means as necessary to decrease parking at the Kurtz Property to minimize as much as possible the number of vehicles parked at the property at any one time per day (whether of staff or visiting family members).

All of the other questions in your July 19 Letter—including those about staffing and operations details for the Kurtz Road Property—are wholly improper, as Virginia Code § 15.2-2291 make them exclusively the province of VDBHDS, and to the extent VDBHDS has requested or required such information, Newport Academy has provided it to VDBHDS. Newport Academy declines to provide responses to these questions from you as they are not within the scope of your jurisdiction as the County's Zoning Administrator.

D. Response to Hampshire Letter.

The Hampshire Letter requests that you determine that the proposed facility at the Kurtz Property is either a Congregate Living Facility or a Medical Care Facility. The crux of its argument is that by providing mental health services to its residents, Newport Academy cannot be considered a group residential facility because its focus is on "medical treatment" and not on "residency." Hampshire Letter at 2. Of course, that cannot be the case—providing mental health services to adolescents in a residential setting is precisely the purpose of Newport Academy and is why VDBHDS licensure is necessary. To suggest otherwise is nonsensical and is not worthy of your consideration.

Mr. Hampshire also takes issue with the "Service Type" Newport Academy identified in its Revised Application, speculating that the selection of "MM Children Residential Service," rather than a "MH Children Group Home Residential Service" somehow evidences an "attempt to avoid the Zoning Ordinance limitations of 'Group Residential Facility' and to instead focus on medical treatment...." Hampshiiv Letter at 2. However, the service type Newport Academy identified is a distinction without a difference as we have shown in our prior letters. Moreover, Newport Academy has made clear that it intends to provide treatment for adolescent girls struggling with depression, anxiety, trauma, and other mental health issues in a homelike setting. The "Service Type" identified in Newport Academy's Revised Application does not change that.

Further, as set forth in detail in our June 28 letter, the term "Medical Care Facility" cannot be applied to the Kurtz Property, as it conflicts with the unambiguous language of the


state statutes and with the Zoning Ordinance. Indeed, the definition of the term "medical care facility" is reserved for institutional uses, including hospitals and medical schools providing inpatient medical care, and is plainly inconsistent with the type of residential mental health treatment proposed for the Kurtz Property. Group residential facilities are solely under the purview of VD131-IDS, per § 37.2-408(13) of the State Code which makes VDBHDS the single licensing agency ... for group homes or residential facilities ...." Thus, VDBHDS' sole regulating authority over group residential facilities renders equally nonsensical the erroneous suggestion that Newport Academy's proposed use could also require a Certificate of Public Need from the Virginia Department of Health.

The Hampshire Letter also claims that because the proposed treatment at the Kurtz Property includes that of "substance abuse," it is a congregate living facility. Hampshire Letter at 7. As Newport Academy has made clear, Newport Academy is not a drug rehabilitation facility nor does Newport Academy provide "detoxification", which is the type of care a congregate living facility provides. Recognition and treatment of substance abuse issues through counseling services for a troubled adolescent in a group residential home do not fall within the Ordinance's definition of a congregate living facility.

More importantly, a determination from you that the Kurtz Property is a medical care facility or congregate living facility, as the Hampshire Letter suggests, would impermissibly replace the statutory role assigned to VDBHDS under § 15.2-2291. As explained in the Board of Supervisors case discussed on Page 3, "a plain reading of [§ 15.2-2291 and the Zoning Ordinance] suggests that proper licensing by the DMH [predecessor to VDBHDS] of a mental health treatment facility is dispositive of the fact that the licensed facility is treating mental persons with an illness." Id. at *6. Because "[1]ogic dictates that the administrative body with the most qualified personnel determine whether or not facilities are eligible for group home status," id, the Zoning Administrator lacks the authority to make any other determination, whether to call the proposed use of the Kurtz Property a medical care facility or congregate care facility.

For all these reasons, Newport Academy's proposed use of the Kurtz Property can properly be characterized only as a group residential facility in accordance with § 2-502 of the Fairfax County Zoning Ordinance.

We are available to discuss these issues further with you if you wish.

Leslie B. Johnson Fairfax County Zoning Administrator RE; June 4, 2019 Zoning Determination Request for 1318 Kurtz Road August 5, 2019 Page 6

-Sincerely yours,

F. Murphy McGuireWoods LLP 1750 Tysons Boulevard, Suite 1.800 Tysons, VA 22102 Tel: 703/712-5487 Fax: 703/712-5243 [email protected]

Michael Allen Reiman, Dane & Colfax, LLC 1225 19th Street, N.W., Suite 600 Washington, D.C. 20036 Tel: 202/728-1888 Fax: 202/728-0848 [email protected]

cc: Laura S. Gori

1318 Kurtz Rd 1318 Kurtz Rd, McLean, VA 22101 ii 4 hr 41 min

County of Fairfax, Virginia To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County

Sent via US Mail and Email (sfmurphvAmeguirewoods.com & mallenQrelmanlaw.coml

July 19, 2019

Mr. Sean F. Murphy McGuire Woods LIP 1750 Tysons Boulevard, Suite 1800 Tysons, VA 22102

Mr. Michael Allen Reiman, Dane & Colfax, PLLC 1225 19th Street, N.W., Suite 600 Washington, DC 20036

Re: June 28, 2019 Letter Re: 1318 Kurtz Road Tax Map Ref: 30-2 ((13)) 36 Zoning District: R-2 Salona Village, Lot 36

Dear Mr. Murphy and Mr. Allen:

I'm writing in response to your June 28, 2019, letter, which requested that I find Newport Academy's proposed use of 1318 Kurtz Road to be a group residential facility rather than an inpatient treatment center or medical care facility.

I have reviewed the revised license application submitted by Virginia Health Operations, LLC, d/b/a Newport Academy to the Virginia Department of Behavioral Health and Developmental Services (VDBHD) for a Mental Health Children's Residential Service to be located at 1318 Kurtz Road. Before responding to your June 28 letter and the other requests for a zoning determination about that property, I have several questions about the operational characteristics of the proposed facility at Kurtz Road. In particular:

• What is the minimum and maximum length of stay for an individual at this facility? • What is the maximum number of resident and non-resident staff that will be onsite at

any given time (next to each number, please indicate whether resident or nonresident)?

• Does Newport Academy intend to use any independent therapists, counselors, instructors, or other independent contractors at this location who are not on Newport Academy's staff, and if so, how many?


12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035-5507

Phone 703-324-1314 Fax 703-803-6372

www.fairfaxcounty.aov/planning-development

Mr. Sean F. Murphy Mr. Michael Allen July 19, 2019 Page 2

• What percentage and total floor area of the facility will be used as office space for staff, including but not limited to offices for the Executive Director/Clinical Director, Individual Therapists, Family Therapists, Care Coordinators, the Residential Coordinator, counselors and medical staff?

• Ple,ase provide a floor plan that shows the areas to be used specifically for staff offices.

• Does Newport Academy currently have any local off-site office space where its business operations are conducted?

• How will parking for staff and visitors be managed and accommodated on the property, particularly during shift changes?

• What is the maximum number of cars anticipated at any one time? • Will employees or visitors park on the street? • How will parking be managed for family events and visits?

Your prompt response to these questions is appreciated so that I may finalize my review of your request as well as other requests concerning the proposed use of the property. If you have any questions related to the specifics of this request, please feel free to contact me.

Sincerely,

1,:ou Leslie Johnson

" Zoning Administrator

cc: RE Monroe LLC; 1318 Kurtz Road; McLean, Virginia 22101 (property owner)

McGUIREWOODS stmurptlyOrneguiFeWorads.cOm Direct Fait: 703.712.5243

McGuireWoods LIP 1Z50 Tysons Boulevard

Suite 1800 McLean, VA 22102-4215

Phone: .703.712.5000 Pax: 703.712.5050

www.mcguirewoods.com

Sean F. MnrpIty Direct: 703.712.5487

June 28, 2019

BY ELECTRONIC AND FIRST CLASS MAIL

Leslie B. Johnson Fairfax County Zoning Administrator Department of Planning and Zoning Zoning Administration Division 12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035-5505

FAIFiFAX

JUL 0 2 2019

DiibTfor= ZONING ADMINISTRAT!ON I

2-0 1 9 0539

Re: June 4, 2019 Zoning Determination Request for 1318 Kurtz Road Tax MapRef: 30-2-((1 3)) 0036

Dear Ms. Johnson:

We again write you on behalf of Virginia Health Operations, LL,C ("VHO") and Monroe LE, LLC ("Monroe"), which we collectively refer to as "Newport Academy", with respect to the properties at 1620, 1622, and 1624 Davidson Road (the "Davidson Properties"), and at 1318 Kurtz Road (the "Kurtz Property")(collectively the "Newport Properties").

For the reasons outlined below, we ask that you deny the request of Katie Zimmerman and Christiane Lourenco in their June 4, 2019 "Zoning Determination Request for Psychiatric Residential Treatment Facility" (the "June 4 Letter"). They ask you to make a determination that Newport Academy's proposed operations on the Newport Properties constitute "Medical Care Facilities" as set forth in § 20-300 of the Zoning Ordinance of Fairfax County, Virginia (the "Zoning Ordinance") Instead, we reiterate our request in our June 10, 2019 letter (the "Newport Letter"), that you revise your existing determination, and find that the proposed use for each of the Newport Properties is a group residential facility.

Newport Academy's proposed uses for the Newport Properties are consistent with § 15.2-2291 of the Code of Virginia. As discussed more fully in the Newport Letter, the Virginia Department of Behavioral Health and Development Services ("VDBHDS") alone is empowered to determine whether an applicant meets the requirements for licensure. Absent a contrary determination from VDBHDS, we maintain that you lack the authority to classify the Newport Properties as a medical care facility. As we articulated in the Newport Letter, once VDBHDS grants a license, Virginia Code §15.2-2291 conclusively establishes that a group home for eight (8) or fewer residents is a "residential facility." Such a group home would, ipso facto, be a

1 While the June 4 Letter switthes between use Of "Medical Care Fatility" and "Medical Treatment Facility" we understand ihe authors to reference "Medical Care Facility" at it it defined in the Zoning Ordinance, whereas Medical Treatinent Facility is not.

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Leslie B. Johnson Fairfax County Zoning Administrator RE: June 4,2019 Zoning Determination Request for Newport Properties June 28, 2019 Page 2

"Group Residential Facility" as that term is defined in §20-300 of the Fairfax County Zoning Ordinance. Moreover, once it qualified as a "Group Residential Facility," it would be excluded from the definition of "Medical Care Facility" in §20-300 of the Zoning Ordinance. Your May 15, 2019 Use Determination (the "Determination") departs dramatically from the Zoning Administrator's long-established interpretations and applications of the Zoning Ordinance.

The rationale of the June 4 Letter, while unpersuasive, amplifies existing concerns that discriminatory views of neighborhood opponents and others seek to influence your determinations regarding the Newport Properties, urging that you substitute your determination for the judgment of VD13HDS as to what qualifies as a group residential facility. While the Newport Letter highlights why such discriminatory action would be in violation of state and federal laws prohibiting discrimination on the basis of disability2, it would also contradict the County's own stated position, in previous litigation concerning group residential facilities for adolescents, that "the General Assembly and the Board of Supervisors [entrusted VDBHDS] • with the task of determining what facilities would be eligible ."3

Any discretion you may have under §18-103 of the Zoning Ordinance must be exercised reasonably, consistently, and in conformance with state and federal law. Because the June 4 Letter requests actions in conflict with that legal authority (and with longstanding County interpretation and application of the Zoning Ordinance), you cannot grant the request contained in the June 4 Letter.

A. Newport Academy's Mission

Newport Academy's proposed uses for the Newport Properties are driven by the expanded need for group residential facilities for adolescents with mental health issues. As Jamison Monroe shared with you and others at the April 24 public forum, recent studies indicate troubling statistics for children between the ages of 12 and 17. As he reported, there is an overall 60% increase in reports of major depression over the past six years, correlating with significant increases in suicidal thoughts, plans, and events for children 18 and older. Despite these increases, about 59% of children suffering from depression do not receive any treatment.

Children from Virginia, including Fairfax County, are already being served by Newport Academy outside of Virginia. Newport Academy is responding to requests from families and treatment professionals to provide more residential options in Northern. Virginia to address the high rate of untreated depression and other mental health issues in the Community. Additional

2 As discussed in the Newport Letter, such discrimination violates laws including the Virginia Fair Housing Law; § 36-96.1 et seq of the Code of Virginia; the federal Fair Housing Act, 42 U.S.C. §3604(f); the Americans with Disabilities Act, 42 U.S.C. § 12132; and the Rehabilitation Act of 1973,29 U.S.C. § 794.

3 Post-Trial Memorandum of the Board of Supervisors, the Zoning Adthinistrator, Alternative &We, Inc., and the

Northern Virginia Partners* for Children, pg. 17; a copy Of the Meinorandum is attached.

Leslie B. Johnson Fairfax County Zoning Administrator RE: June 4, 2019 Zoning Determination Request for Newport Properties June 28, 2019 Page 3

group residential facilities like Newport Academy in Northern Virginia are necessary, so that adolescents can receive appropriate therapy in close proximity to their parents, siblings, existing support systems and their personal healthcare providers

B. June 4, 2019 Letter from Katie Zimmerman and Christiane Lourenco

The June 4 Letter claims, inaccurately, that you decided that the proposed use of the Davidson Properties "as psychiatric residential treatment facilities" was most similar to a congregate living facility rather than a group residential facility under the Zoning Ordinance.' Focusing on this topic of psychiatric residential treatment facilities, the authors of the June 4 Letter direct your attention to unrelated provisions of the Virginia Administrative Code, 12VAC30-130-850, which provides a definition of "inpatient psychiatric facilities." This definition is irrelevant. Indeed, the regulation from which it is drawn pertains to the Virginia Medicaid program, not licensure.

Taken in total, the June 4 Letter asserts that there is a "valid argument" that the Newport Properties are "in fact Medical Treatment Facilities pursuant to Fairfax County Zoning." That assertion is incorrect.

C. Medical Care Facilities

Contrary to the June 4 Letter, the term "Medical Care Facility" cannot be applied to the Newport Properties, as it conflicts with unambiguous State statutory language and with the Zoning Ordinance. The latter, at §20-300, defines that term as follows:

MEDICAL CARE FACILITY: Any institution, place, building, or agency that offers or provides health services and medical, psychiatric, or surgical care to two or more persons, primarily as inpatients, suffering from a health condition, illness, disease, injury, deformity, or other physical or mental condition. This use includes facilities that offer or provide acute, chronic, convalescent, aged, nursing, or mental/intellectual/physically disability services and includes facilities offering or providing these services. For the purposes of this Ordinance, this term includes a HOSPITAL, ASSISTED LIVING FACILITY, NURSING FACILITY, and other facilities that may be described as a sanatorium/sanitarium, mental hospital, intermediate/extended care facility, medical school, and other similar institutions or facilities. This term does not include CONGREGATE LIVING FACILITY, CONTINUING CARE FACILITY, GROUP RESIDENTIAL FACILITY, or INDEPENDENT LIVING FACILITY, physician's office, first aid station for

4 While the June 4 Letter is correct in that the Determination states that the proposed use of the Davidson Properties is most like a congregate living facility, there is no discussion of the proposed use as "psychiatric residential treatment facilities." See below for-further discussion,

Leslie B. Johnson Fairfax County Zoning Administrator RE: June 4, 2019 Zoning Determination Request for Newport Properties June 28,2019 Page 4

emergency .medical or surgical treatment, medical laboratory, or medical office providing Out-patient services.

This definition is targeted towards institutional uses including hospitals and medical schools providing inpatient medical care, and is plainly inconsistent with the type of residential mental health treatment proposed for the Newport Properties. Further supporting this conclusion are the additional requirements that §9-303.3 of the Zoning Ordinance imposes on medical care facilities. There, the Zoning Ordinance states, "[a]ll applications for medical care facilities shall be filed at the same time as the application for a State Medical Facilities Certificate of Public Need," which is an entirely different regulatory scheme. This is plainly inconsistent with VDBHDS' role in licensing and regulating group residential facilities, which is the proposed use for the Newport Properties.

The Virginia Department of Health's Office of Licenture and Certification is the body statutorily tasked with issuing such Certificates, consistent with the regulations of §32.1-102.1 et seq. of the State Code. By contrast, group residential facilities are solely under the purview of VBDHDS, per §37.2-408(B) of the State Code which makes VDBHDS"... the single licensing agency ... for group homes or residential facilities ...." VDBHDS' sole regulating authority over group residential facilities makes it impossible that Newport Academy's proposed use could also require a Certificate of Public Need from the Virginia Department of Health.

D. A Determination That These Properties Are Medical Care Facilities is Inconsistent

with the State and Local Provisions Allowing Group Residential Facilities

Much like your decision in the Determination that the Davidson Properties constitute a single, 24-resident "congregate living facility," a determination that the Newport Properties are medical care facilities would supplant the statutory role assigned to VDBHDS under § 15.2-2291. Furthermore, it is in contradiction to the County's own position in previous litigation with respect to the legislative intent of relevant portions of the State Code and the Zoning Ordinance, which, as remedial laws, must be construed liberally.'

We observed in the Newport Letter that your decision tO render a determination absent VDBHDS' final decision regarding licensure for any of the Davidson Properties was in contrast to the direction the Fairfax County Circuit Court provided in Board of Supervisors of Fairfax

County v. Board of Zoning Appeals, 1997 WL 1070562 (Fairfax Circuit Ct., April 7, 1997). In that case, the Circuit Court held "a plain reading of [§ 15.2-2291 and the Zoning Ordinance] suggests that proper licensing by the DMH [predecessor to VDBHDS] of a mental health treatment facility is dispositive of the fact that the licensed facility is treating mental persons with an illness." Id at *6. Because "[1]ogic dictates that the administrative body with the most qualified personnel determine whether or not facilities are eligible for group home status," id,

s See infra the MOinoratidurii, pg. 12:

Leslie B. Johnson Fairfax County Zoning Administrator RE June 4, 2019 Zoning Determination Request for Newport Properties June 28,2019 Page 5

you lack the authority to make any other determination, whether to call the proposed use of the Newport Properties a medical care facility or congregate care facility.

Indeed, this is the arguthent your predecessor and the Board of Supervisors made in that case in their Post-Trial Memorandum of the Board of Supervisors, The Zoning Administrator, Alternative House, Inc. and the Northern Virginia Partnership for Children (the "Memorandum"), a copy of which has been attached to this letter.

I. Legislative Intent of the General Assembly

On page 9 of the Memorandum, the County states "it is apparent from both the adopted language and the relevant legislative history, the General Assembly intended [§ 15.2-2291] to be ... a limitation on the authority of local governments to restrict the siting of such facilities." The Memorandum states that a subcommittee report proposing the adoption of § 15.2-2291 was even clearer on this matter. While the Federal Fair Housing Amendments Act of 1988 "might require only governmental neutrality toward the disabled," the Memorandum states on page 10, "the subcommittee proposed adoption of [§ 15.2-2291] as a signal 'that the State wishes an affirmative effort rather than neutral treatment alone when it comes to the siting of group homes.'

The County acknowledges that, in the subcommittee's view, the statute "'sets a clear statewide policy that facilities for eight or fewer mentally disabled individuals are to be regarded as single family uses.'" Id. at 10. In footnote 7, the County notes that but for an unrelated change, "the language adopted by the General Assembly was materially the same as that proposed by the subcommittee."

2. Legislative Intent of the Board of Supervisors

The Memorandum then discusses the Board of Supervisors' implementation of related Zoning Ordinance provisions, stating the "legislative history behind the Board's enactment is similarly clear." Id. at 10. The staff report your predecessor prepared for the Board described the types of facilities to be allowed by-right under the new ordinance, including "mental health youth group homes; short-term mental health diagnostic facilities for youths; mental health therapeutic homes for children; and homes for recovering drug and/or alcohol abusers." Id As the Memorandum states, the staff report is "evidence of what was before the Board when it adopted the proposed language verbatim; in fact, there is no evidence of a contrary intent by the Board." Id. at 11.

Finally, on page 12, the Memorandum underscores the remedial nature of both the state statute and local ordinance provisions related to group residential facilities, noting they are "intended to remove many of the historic obstacles to fair housing for the mentally disabled." Quoting Carmel v. City of Hampton, 241 VA. 457, 460, 403 S.E.2d 335, 337 (1991), the County

Leslie B. Johnson Fairfax County Zoning Administrator RE: June 4, 2019 Zoning Determination Request for Newport Properties June 28, 2019 Page 6

insisted that both provisions "are to be construed liberally to remedy the mischief to which they are directed in accordance with the legislature's intended purpose." Id. Where there is ambiguity in the provisions of either the State Code or the Ordinance, the County argued that "the rule of liberal construction would require [following] the construction that expanded housing opportunities for the mentally disabled, rather than a construction perpetuating discrimination." Id Application of that rule here, as the County has done before, compels a determination that expands housing opportunities for the mentally disabled and not one that will perpetuate discrimination against them.

Granting the request of the June 4 Letter would be inconsistent with the State Code and Zoning Ordinance, and it would improperly preempt VDBHDS' determination regarding licensure of any of Newport Academy's proposed uses across the Newport Properties. Furthermore it is readily apparent that the group residential facilities that Newport Academy proposes to operate, is riot a medical care facility seeking to provide inpatient medical care.

Accordingly, we ask that you deny the request of the June 4 Letter to make a determination that the proposed uses of the Newport Properties constitute a medical care facility.

We are available to discuss these issues further with you if you wish.

Sincerely yours,

1469 /i s ri F. Murphy /d McGuireWoods LLP 1750 Tysons Boulevard, Suite 1800 Tysons, VA 22102 Tel: 703/712-5487 Fax: 703/712-5243 [email protected]

/4 "44 7, Michael Allen Reiman, Dane & Colfax; PLLC 1225 19111 Street, N.W., Suite 600 Washington, D.C. 20036 Tel: 202/728-1888 Fax: 202/728-0848 [email protected]

cc: Laura S. Gori

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