Prune Hill neighbors head to court over drug rehab

Dorothy Fox Safety Alliance lawyer says group ‘prepared to go full distance’ in battle against Discover Recovery

Prune Hill residents fervently opposed to having a residential drug treatment center move in next to Camas’ Dorothy Fox Elementary School are taking their fight to the courts.

Brian Lewallen, the Camas attorney representing the Dorothy Fox Safety Alliance (DFSA), said the group will take their case to Clark County Superior Court in a bid to stop the owners of Discover Recovery from opening an inpatient recovery center on a 2.39-acre property known as Fairgate Estate that has been used as a bed and breakfast, wedding venue and, most recently, an assisted living center.

“We are filing a land-use petition act (case) … and trying to fight the hearings examiner’s decision,” Lewallen told The Post-Record on June 7.

DFSA members say they fear the 15-bed drug rehabilitation facility — which is geared toward working professionals seeking help for substance abuse disorders — would harm their neighborhood, endanger their children and lower their property values.

Prune Hill residents formed the safety alliance group in February, a few weeks after the owners of Discover Recovery filed an official application for a conditional-use permit at the Fairgate Estate property.

The group’s anonymous founders built a website, insinuated online that future Discover Recovery patients seeking help for drug or alcohol addictions might kidnap, rape or kill children at the nearby Dorothy Fox Elementary School, circulated a petition opposing the drug rehabilitation center, formed a limited liability corporation, collected more than $5,000 via GoFundMe and placed “No Drug Rehab Next to Dorothy Fox” signs throughout the city.

Discover Recovery, a company that has operated a 40-bed inpatient drug treatment and rehabilitation center in Long Beach, Washington, since 2018, applied for the conditional-use permit on Jan. 21.

On March 24, Camas Hearings Examiner Joe Turner held a public hearing to consider the treatment center’s application for a conditional-use permit, and opponents argued the proposed use would be “materially detrimental to the public welfare.”

The DFSA members voiced concerns that Discover Recovery patients might leave the facility without medical advice and interact with children in the neighborhood.

On April 28, Turner ruled the facility does comply with city code and should be granted a conditional-use permit. The hearings examiner also set a few additional rules in his decision including 24-hour surveillance of all patients; routine bed checks at 30-minute intervals; criminal background checks on all patients; a 6-foot solid fence around the property; no admittance for sex offenders or any patient who has been convicted of a violent crime or been court-mandated to seek treatment for their substance-abuse disorder; annual meetings with city, school and neighborhood representatives; and reporting to the Camas Police Department if a patient leaves against medical advice.

The extra requirements did not sway the DFSA opponents.

In May, the group filed a request for reconsideration and proposed even more conditions they would like to see connected to the conditional-use permit, including a requirement that Discovery Recovery have a security guard posted at the facility at all times and more frequent meetings with city and neighborhood representatives.

Turner denied the group’s petition for reconsideration on May 24.

One week later, DFSA members turned out for a Camas City Council meeting and urged the Council to grant Lewallen enough time to tell city leaders about new information the group had collected from a public records request for emails between city of Camas staff and Discover Recovery representatives and lawyers in 2020.

“I was trying to educate the Council,” Lewallen later told The Post-Record. “The city council has been instructed not to speak about this. They say they are not allowed to comment on hearings examiner matters. I tried to share with the Council that, because they had no decision-making rights, the Fairness Doctrine doesn’t apply to them. It applied to the hearings examiner.”

Applicants pursued conditional-use permit in November 2020

DFSA members have collected months worth of emails between city staff and Discover Recovery representatives that show early conversations about the proposed facility.

Many DFSA members seem to think the emails point to secretive, behind-the-scenes deal-making between the city and Discover Recovery.

“I know you’re aware of some of the information we’ve uncovered,” Hannah Rogers, a Prune Hill resident and DFSA member, told Camas City Council members during the Council’s June 14 town hall. “Staff told (Discover Recovery) they would fall under a (Type IV) instead of a (Type III), then there was a six-week period of silence. Then, after that mysterious period, (the city) suddenly told the applicant it was a Type III, making it easier on them. Interesting how that switched. Not sure what the city council knew about that. As a mother of three young children whose lives are now going to be less safe, we want answers to these questions.”

The emails do show that city staff told Discover Recovery representatives early on they would likely need to go through a Type IV legislative process, which would include hearings before the planning commission and city council.

But city staff based that information on language Discover Recovery representatives used to describe the rehabilitation center, explained Camas Planning Manager Robert Maul.

In their initial outreach to city staff, an architect and attorney representing Discover Recovery both referred to the proposed rehabilitation center as a “residential treatment facility.”

According to Maul, because “residential treatment facility” is not in the city’s code as a listed use or even defined in the city code, Discover Recovery would have needed to formally ask the city council to add “residential treatment facility” to the city’s code.

“Which is what a Type IV process is,” Maul explained. “The applicant was advised by staff that, to include that definition in the code, they would need to apply for a code text amendment, which goes before the Planning Commission and City Council.”

The Type IV process discussed in the emails would not have been a land-use application, Maul added, but rather a legislative action to modify the city’s code.

“In order to change the code you will need to formally apply for a zoning text change, which is a legislative process,” Maul told Discover Recovery co-owner Thomas Feldman in an email dated July 15, 2020.

The process could have taken a long time, since the city had slowed its operations due to the COVID-19 pandemic.

“As we discussed, there is no certainty on timing since we are unable to hold public hearings and the process can take anywhere from four to eight months under normal circumstances,” Maul told Feldman in the July 15 email.

In subsequent communication with Discover Recovery representatives, city staff continued to say the applicants will likely need to pursue a code text amendment and go before the planning commission and city council.

Instead of taking this route and trying to have “residential treatment facility” added to the city’s code, the applicants decided to switch gears and apply for a conditional-use permit using another term, “convalescent home,” to describe their inpatient treatment facility.

The change came from the applicant, not from city staff, Maul said.

“The applicant submitted a pre-application conference request … whereby they made their argument that the proposed use could fall under ‘nursing, rest or convalescent home,’ which is a listed use in the code, carries a definition and is processed as a Type III conditional use permit,” Maul explained.

Lewallen and the DFSA members have argued there is a “black hole” of missing communications between the city and Discover Recovery between October and December 2020, but public records are available that shed light on what was happening during this time period.

In early November, Discover Recovery representatives submitted a pre-application request for a change of use at Fairgate Estate, and the company’s attorneys submitted a memorandum to supplement the pre-application request, stating they believed the “applicant’s proposed use at this site constitutes a convalescent home use, which is a conditional use under the applicable R-12 designation.”

The applicant’s attorneys argued that, because Discover Recovery intended to “provide full-time care and treatment for individuals seeking to recover from disorders in the abuse of drugs, alcohol and other substances,” the proposed use fell under the city’s definition of “nursing, rest or convalescent home,” listed as a conditional use in Camas’ R-12 zones.

The state of Washington defines a convalescent home as a facility that “maintains and operates 24-hour skilled nursing services for the care and treatment of chronically ill or convalescent patients, including mental, emotional or behavioral problems, intellectual disabilities or alcoholism.

Because Discover Recovery was now calling its facility a “convalescent home” instead of a “residential treatment facility” the applicants no longer needed to go through a Type IV process to change the city’s code, but still had to go through the hearings examiner process to get a conditional-use permit if they wanted to operate a convalescent home in the city’s mostly residential R-12 zone.

It was the applicants who decided to change the definition of the facility from “residential treatment center” to “convalescent home” and try for a conditional-use permit, Maul said, and it was their responsibility to make a case for that permit in front of the hearings examiner.

“Staff’s role is to review for compliance and advise all parties of the legal and adopted process involved,” Maul added.

In the end, the hearings examiner sided with Discover Recovery and said the company’s application met the city’s requirements for a conditional-use permit.

Having lost their fight before the hearings examiner and their petition for reconsideration rejected, the DFSA is now seeking a direct judicial review of Turner’s land-use decision through the state’s Land Use Petition Act (LUPA) process.

“One of the arguments we’re going to make is that this was not a Type III land-use decision, but a Type IV that should have gone to the city council,” Lewallen said.

The lawyer, who has represented the DFSA pro bono through the hearings examiner process, said he realizes the LUPA process can be lengthy.

“These cases can take 12 to 18 months to fully litigate,” Lewallen said. “But we are prepared to go the full distance on this.”