HomeMy WebLinkAboutHO2019-001 - Approving Reasonable Accomodation for the property at 101 Via UndineRESOLUTION NO. HO2019-001
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING REASONABLE
ACCOMMODATION NO. RA2019-001 FOR THE PROPERTY
LOCATED AT 101 VIA UNDINE (PA2019-050)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Rhonda Moore ("Applicant"), authorized representative
requesting approval of a reasonable accommodation, with respect to property located at
101 Via Undine, Newport Beach, California and legally described as Lot 252 in Tract 907
in the City of Newport Beach, County of Orange, State of California, Assessor's Parcel
No. 423-251-14 ("Property").
2. The Applicant has submitted a reasonable accommodation application requesting relief
from Section 20,30.040 (Fences, Hedges, Walls, and Retaining Walls) and Section
21.30.040 (Fences, Hedges, Walls, and Retaining Walls) of the Newport Beach
Municipal Code ("NBMC") to allow a hedge along the perimeter of a front yard setback
area to exceed the maximum height limit of 42 inches. The additional hedge height is
requested to provide an individual with a disability privacy to utilize the yard area on the
subject property.
3. The Property is designated Single -Unit Residential Detached (RS-D) by the General Plan
Land Use Element and is located within the Single -Unit Residential (R-1) Zoning District.
4. The Property is located within the coastal zone. The Coastal Land Use Plan category is
Single Unit Residential Detached (RSD-C) and it is located within the Single -Unit
Residential (R-1) Coastal Zoning District.
5. The project is exempt from the requirements of a coastal development permit pursuant to
NBMC Section 21.52.035(C) because the hedge is considered accessory to the principle
dwelling and would not result in any improvement to the dwelling structure that results in
changes in floor area exceeding ten percent (10%) of the existing floor area or ten
percent (10%) of the existing height, parking demand, or change the general level of
activity within the neighborhood.
6. A public hearing was held on July 31, 2019, in the Newport Beach Conference Room
(Bay B — 1 st Floor) at 100 Civic Center Drive, Newport Beach. A notice of time, place
and purpose of the hearing was given in accordance with the Ralph M. Brown Act and
the NBMC. Evidence, both written and oral, was presented to, and considered by, the
Hearing Officer at this hearing. The hearing was held open until Monday, August 5,
2019 at 5 PM, to allow for submittal of additional documents and rebuttal thereto.
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SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
This project is exempt from the California Environmental Quality Act ("CEQA") pursuant
to Section 15303 under Class 3 (New Construction or Conversion of Small Structures) of
the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3,
because it has no potential to have a significant effect on the environment.
2. The project involves a minor accessory hedge that is pre-existing on an existing
single-family property involving no construction.
SECTION 3. REQUIRED FINDINGS.
In accordance with NBMC Section 20.52.070(D)(2), the following findings and facts in support
of such findings are set forth:
Finding:
A. That the requested accommodation is requested by or on behalf of one or more
individuals with a disability protected under the Fair Housing Laws.
Facts in Support of Findina:
A letter from Dr. Rimal Bera, MD, the treating physician, has been submitted by the
applicant supporting this claim and the necessity for the increase in hedge height
within the front yard setback. The statement indicates that due to the severity of the
existing medical condition of his patient who is a resident of the subject property,
the accommodation is necessary to provide privacy to utilize the outdoor yard area
on -site and outside the patient's bedroom slider. The increased hedge height is
necessary for the patient to enjoy the yard and not have severe symptoms
triggered by the exterior of the property. Supporting medical documentation was
submitted from a second treating physician, Dr. K. Himasiri Desilva, confirming the
diagnosis. Other supporting documents were submitted from UC Irvine Health
describing the appointment schedule and a drug regime prescribed for the disabled
resident. A letter from the Social Security Administration confirming the disabled
resident was eligible for Supplemental Security Income due to his disability was
also submitted.
Most medical records were either redacted or sealed to protect doctor -patient
confidentiality and privacy, at the request of the applicant. The following findings
are adopted in support of sealing the documents:
California Rules of Court 2.550(d) describes findings required to seal records. They
state five findings.
(1) There exists an overriding interest that overcomes the right of public access to
the record. Here, the medical records contain doctor -patient communications that
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are privileged and also raise privacy interests. They contain detailed diagnosis,
medications, and appointment schedules. They also include detailed descriptions
of the diagnosed condition. At issue is whether a mental disability exists. The
Hearing Officer was presented with substantial, credible medical evidence from
well established and recognized experts sufficient to make a determination whether
a disability exists. As the alleged disability is a mental impairment, any public
interpretation of this information and any challenge to its conclusions would likely
require a third -party expert examination of the patient, which would further invade
the disabled resident's privacy interests. The probative value to the public of the
details of the disability are outweighed by the prejudicial effect to the disabled
resident of disclosing privileged and private information. The doctor -patient and
privacy interests in these details outweigh the right of public access to the details of
the disability.
(2) The overriding interest supports sealing the record. Here, the overriding interest
is doctor -patient confidentiality and privacy. These are foundational interests and
support the sealing of the records.
(3) A substantial probability exists that the overriding interest will be prejudiced if
the record is not sealed. Here, testimony at the hearing questioned the disability
and several opponents of the Reasonable Accommodation insisted on access to
medical records. If the medical records were made public there is a substantial
probability the confidential material in the record would be widely disseminated
among opponents and neighbors, prejudicing the patient's doctor -patient
confidentiality and privacy interests.
(4) The proposed sealing is narrowly tailored. Here, the Hearing Officer sealed
some of the records submitted by the applicant and released others with
confidential information on the released documents redacted. This action is
narrowly tailored to protect only doctor -patient and privacy interests.
(5) No less restrictive means exist to achieve the overriding interest. Here, the
medical information was necessary for the Hearing Officer to establish that a
disability existed. There is no other alternative than to submit this information to the
Hearing Officer and there is no less restrictive means of conveying that information
while protecting the overriding interests of confidentiality and privacy.
Further, Municipal Code section 20.52.070.C.4.d specifically requires that "any
request for information regarding the disability of the individuals benefited complies
with ... the privacy rights of the individuals affected." The documents requested to
be placed under seal were submitted at the Hearing Officer's request and the
Hearing Officer must therefore observe the privacy rights of the disabled resident.
Finding:
B. That the requested accommodation is necessary to provide one or more individuals with a
disability an equal opportunity to use and enjoy a dwelling.
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Facts in Support of Finding:
1. The additional hedge height is needed for the disabled resident to enjoy and utilize
safe access to the outdoor yard area outside of their bedroom sliding door.
2. In the letter from Dr. Bera, MD of UCI Neuropsychiatric Center that has been
submitted by the applicant supporting the claim and the need for increased hedge
height, Dr. Bera recommends the increased hedge height due to the necessary use
of a private yard due to the resident's existing medical condition. The increased
hedge height would allow the individual privacy and alleviates symptoms triggered
by passing pedestrians, gardeners, construction workers, dogs, noise and lights.
This particular pathway located on the other side of the hedge is frequently traveled
and provides public access to the beach and clubhouse. The patient spends the
majority of the time at home and utilizes this area located directly outside of the
patients bedroom and bathroom and is accessed by the patient through sliding
glass doors. Dr. Bera concludes that this hedge that encloses the majority of the
yard area allows this patient to continue to enjoy a more secluded, secure, quiet
and safe area inside and outside the bedroom.
3. With consideration of the factors provided by NBMC Section 20.52.070.D.3-4, the
requested reasonable accommodation is necessary to provide the disabled
individual an equal opportunity to use and enjoy a dwelling. If the requested
accommodation is granted, the disabled person will be able to utilize the outdoor
yard area. This area is outside their bedroom sliding door. Access to this protected
outdoor yard area for the disabled resident that spends most of their time at their
home on the subject property is thereby enhancing their quality of life. Any
modifications necessary to create similar outdoor yard areas on the subject
property with three front setback areas cannot be accommodated within the
existing residence without more significant disruption to the interior of the home
and could be impossible without demolition of portions of the existing dwelling.
Approval of the accommodation will not alter the character of the neighborhood,
because the hedge is a nominal accessory feature common within the Lido Isle
neighborhood and along the Stradas.
4. The requested reasonable accommodation to raise the hedge height from 42
inches to 78 inches is reasonable on its face, possible, feasible, and plausible.
5. Objections raised by opponents, including that there are potential alternatives less
impactful and that public and/or private views to the harbor will be impacted, do not
establish that the request is NOT reasonable.
Finding:
C. That the requested accommodation will not impose an undue financial or administrative
burden on the City as "undue financial or administrative burden" is defined in Fair Housing
Laws and interpretive case law.
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Facts in Support of Finding:
1. Allowing the additional hedge height would not impose an undue financial or
administrative burden on the City. There are no administrative costs because there
are no building permits required.
Finding:
D. That the requested accommodation will not result in a fundamental alteration in the nature
of the City's zoning program, as "fundamental alteration" is defined in Fair Housing Laws
and interpretive case law.
Facts in Support of Finding:
1. The proposed accommodation would not result in any fundamental alterations to
the character and use of home or the neighborhood. The hedge only provides
additional privacy for the existing yard area which is approximately 400 square feet
and does not change the use of the house or the yard. The hedge is nominal in
nature and maintains a design, bulk, and scale of development that is consistent
with the surrounding neighborhood pattern of development.
2. The hedge is a common accessory within the surrounding Lido Isle Community and
provides necessary privacy of the yard on the subject property. The property is
unique with three front setbacks. The only setback that includes an exterior yard
area is the front setback on the Strada Trieste (public walkway). The proposed
increase in the hedge height represents a nominal change to the existing property
and would not intensify the existing single -unit residential use of the property;
therefore, the requested accommodation would not undermine the express
purpose or land use identified by the City's General Plan.
3. While the requested reasonable accommodation may impact public and/or private
views to the harbor, there are no identified City programs regarding the
preservation of views to the harbor that are fundamentally altered.
Finding:
E. That the requested accommodation will not, under specific facts of the case, result in a
direct threat to the health or safety of other individuals or substantial physical damage to
the property of others.
Facts in Support of Finding:
1. There is a required site distance triangle adjacent the intersection of the Strada and
Via Lido Soud, where the hedge will be trimmed and maintained at a maximum 36
inches to comply with the City Traffic Engineer recommendation pursuant to Zoning
Code Section 20.30.130(E). Traffic Visibility Area to ensure the safety of
pedestrians and bicyclists; therefore, the proposed project would not pose a threat
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to the health or safety of other individuals or substantial physical damage to the
property of others.
2. The City Police Department reviewed the request and did not identify any safety
concerns.
3. While some private views to the harbor may be impacted, there is no evidence that
the requested reasonable accommodation will result in substantial physical
damage to any property of others.
Finding:
F. That the burden on the applicant to show the request is reasonable on its face and/or
possible was met while the burden on opponents to show that the request is either not
reasonable, is an undue hardship, or is a fundamental alteration to a city program was not
met.
Facts in Support of Finding:
1. All arguments that the accommodation was NOT reasonable, was an undue
hardship, or caused a fundamental alteration to a City program were considered
and found not to be persuasive. Specifically, the subject resident met the definition
of "disabled;" the accommodation is necessary to allow the resident equal
opportunity to use and enjoy the ENTIRE dwelling and surrounding premises;
impacts on the existing public and private partial views caused by the
accommodation do not outweigh the benefit to the applicant to enjoy and use the
entire dwelling and adjacent premises; there are no fundamental alterations to a
City program; all safety concerns have been mitigated; and no property of others
will sustain substantial physical damage.
Finding:
G. For housing located in the coastal zone, a request for reasonable accommodation under
Section 21.16.020 (E) may be approved by the City if it is consistent with the findings
provided in subsection (D)(2) of this section; with Chapter 3 of the California Coastal Act
of 1976; with the Interpretative Guidelines for Coastal Planning and Permits established
by the California Coastal Commission dated February 11, 1977, and any subsequent
amendments, under the Local Coastal Program.
Facts in Support of Finding:
1. In accordance with Section 21.16.020(E), (Reasonable Accommodations) of the
Local Coastal Program Implementation Plan, the review authority may grant
reasonable accommodations to the City's coastal zoning and land use regulations,
policies, and practices when needed to provide an individual with a disability an
equal opportunity to use and enjoy a dwelling in compliance with Federal and State
Fair Housing Laws.
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2. In accordance with Section 21.52.035(C)(1)the project is exempt from the
requirements from a coastal development permit since the hedge is accessory to
the principal dwelling and the modifications do not result in an increase of gross
floor area, height, or bulk of the principal structure by more than ten percent (10%).
3. The requested reasonable accommodation is consistent with the City's Local
Coastal Program. The taller hedge will not encroach onto the Strada Trieste or any
public walkway. Therefore, the public view that is afforded south down the Strada
and across Via Lido Soud towards the beach on the Bay will not be impacted.
Additionally, the public access via the Strada will not be significantly impacted.
Traffic and parking are not affected by the increase in hedge height. No potential
adverse effects to the goals and policies of the California Coastal Act, Interpretative
Guidelines, or Local Coastal Program were identified.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Hearing Officer of the City of Newport Beach hereby approves Reasonable
Accommodation No. RA2019-001, subject to the conditions set forth in Exhibit A, which is
attached hereto and incorporated by reference.
2. The Hearing Officer Decision and Order, dated August 15, 2019 and attached as Exhibit
B, in its entirely, is incorporated by reference herein.
3. This action shall become final and effective 14 days following the date this Resolution
was adopted unless within such time an appeal is filed with the City Clerk in
accordance with the provisions of NBMC Title 20 Planning and Zoning.
PASSED, APPROVED, AND ADOPTS THIS 15T" DAY OF AUGUST, 2019.
�- Hearing Officer
Edward . Johnson, SQ. --
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EXHIBIT "A"
CONDITIONS OF APPROVAL
PI ANNIN(;
1. The development shall be in substantial conformance with the approved site plan, floor
plans and building elevations stamped and dated with the date of this approval. (Except
as modified by applicable conditions of approval).
2. The applicant shall maintain the hedge at all times at the maximum height of 6.5 feet
except for the area within the 5 foot by 5 foot site distance triangle from the
intersection of Strada Trieste and Via Lido Soud where the maximum height shall not
exceed thirty-six (36) inches at any time.
3. The reasonable accommodation shall lapse if the exercise of rights granted by it are
discontinued for at least one hundred eighty (180) consecutive days.
4. If the disabled person(s) initially occupying the residence vacates or conveys the property
for which the reasonable accommodation was granted, the hedge shall be modified and
maintained at heights compliant with the Zoning Code.
5. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
6. The applicant shall comply with all federal, state, and local laws. Material violation of
any of those laws in connection with the use may be cause for revocation of this Use
Permit.
7. A copy of the Resolution, including conditions of approval set forth in this Exhibit "A",
shall be incorporated into the Building Division and field sets of plans prior to issuance
of the building permits.
8. This approval shall expire and become void unless exercised within twenty-four (24)
months from the actual date of review authority approval, except where an extension of
time is approved in compliance with the provisions of NBMC Title 20 Planning and
Zoning.
9. To the fullest extent permitted by law, applicant shall indemnify, defend and hold
harmless City, its City Council, its boards and commissions, officials, officers, employees,
and agents from and against any and all claims, demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever which may arise from or in any manner relate (directly
or indirectly) to City's approval of Moore Hedge Height Addition including, but not limited
to, Reasonable Accommodation No. RA2019-001 (PA2019-050). This indemnification
shall include, but not be limited to, damages awarded against the City, if any, costs of
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suit, attorneys' fees, and other expenses incurred in connection with such claim, action,
causes of action, suit or proceeding whether incurred by applicant, City, and/or the
parties initiating or bringing such proceeding. The applicant shall indemnify the City for
all of City's costs, attorneys' fees, and damages which City incurs in enforcing the
indemnification provisions set forth in this condition. The applicant shall pay to the City
upon demand any amount owed to the City pursuant to the indemnification requirements
prescribed in this condition.
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EXHIBIT "B"
HEARING OFFICER DECISION AND ORDER
CITY OF NEWPORT BEACH
EDWARD J. JOHNSON ESQ., HEARING OFFICER
REASONABLE ACCOMMODATION NO. RA2019-001
Hearing Location: Newport Beach City Hall
100 Civic Center Drive
Newport Beach, CA 92660
Hearing Date: July 31, 2019; 10:38 AM
Application Number: RA2019-001
Applicant: Rex and Rhonda Moore
City Staff: Melinda Whelan, Assistant Planner
Decision: The Reasonable Accommodation is APPROVED
Parties Present: Edward J. Johnson, Esq., appearing by Skype from Mariposa CA
Melinda Whelan, City of Newport Beach
Armeen Komeili, Newport Beach Deputy City Attorney
Rhonda Moore, applicant
Sean Morrissey, attorney for applicant
Notice:
Notice of the hearing was published in the Daily Pilot, mailed to property owners within 300 feet
of the site, and posted on the subject property at least 10 days prior to the hearing.
Staff Report and Recommendation:
City Community Development Department staff submitted a Staff Report describing a request
for a Reasonable Accommodation under Municipal Code Sections 20.52.070 and 21.16.020, to
allow a hedge along the perimeter of the front yard setback to exceed the maximum height limit
of 42 inches, and to instead be grown to a maximum height of 6.5 feet (78 inches). The
additional hedge height is requested to provide privacy of the front yard area on the subject
property for an individual with a disability. Staff reported that the City Traffic Engineer had
reviewed the application and recommended a "sight distance triangle" whereby the hedge height
would be reduced to 36 inches in a five foot by five foot area along the corner of the lot so that
pedestrians along the public way adjacent to the hedge could see travelers along the public way
that was immediately perpendicular to the hedges. Staff reported that no public views would be
obstructed. Staff reported that the City Police Department had also reviewed the application and
had no comments. Staff recommended approval.
Standard of Review:
The legal standard of review of all evidence in administrative cases is a preponderance of the
evidence, or evidence which is of greater weight and more convincing than the evidence offered
in opposition to it, that is, evidence which as a whole shows that the fact sought to be proved is
more probable than not. As this is an application for a benefit, the burden of proof and the burden
of persuasion initially lies with the applicant. However, the burden of proof for a Reasonable
Accommodation in particular is not entirely settled law, as discussed in detail below. Essentially,
it's a two part test. Initially, the applicant bears the burden of showing the request is "possible"
and/or "seems reasonable on its face." Then the burden shifts to opponents to show the request is
"not reasonable" and/or would cause "undue hardship."
Findings:
The request for Reasonable Accommodation is APPROVED. The only question presented by
this request is whether or not the requested accommodation met the findings of Municipal Code
section 20.52.070.D.2. The City Staff Report thoroughly describes the project description,
background, Municipal Code requirements, and required findings and is hereby incorporated by
reference, as amended below, as a finding of this DECISION AND ORDER.
Requested Accommodation:
The Newport Beach Municipal Code allows reasonable accommodations so that an individual
with a disability protected by Fair Housing Laws can have an equal opportunity to use and enjoy
a dwelling. To approve such accommodation, five required findings must be made. Those
findings are described in detail in the Staff Report, incorporated herein by reference, as amended.
The U.S. Department of Housing and Urban Development (HUD) Fair Housing website
(https://www.hud.gov/program_offices/fair_housing_equal_opp/disabilities/inhousing) describes
disability rights in housing as specified by federal law. The HUD website states that federal law
defines a person with a "disability," in part, as "[a[ny person who has a physical or mental
impairment that substantially limits one or more major life activities; has a record of such
impairment; or is regarded as having such an impairment. (See also School Board of Nassau
County, Florida v. Arline, 480 U.S. 273, 279 (1987)) Disability rights in private housing also
apply to zoning and land use regulations.
Here, the applicant requests a reasonable accommodation to exceed the front yard height limit
for hedges to provide privacy for a disabled individual. The disabled person's treating physician
reported that the resulting privacy would be helpful in light of the applicant's condition. This
reasonable accommodation request is a very minor alteration to the City's zoning and planning
policies.
As a general comment, this Hearing Officer offered cautions regarding the use of this procedure
at the hearing on a prior Reasonable Accommodation Request, NO. 2018-001, held on June 26,
2018, and at another prior Reasonable Accommodation Request, NO. 2018-002, held on July 17,
2018, and repeats those cautions again here. The Hearing Officer is concerned that the use of a
reasonable accommodation request should not substitute for what otherwise might more properly
be a variance request or other type of more appropriate procedure. There appears to be no limit to
what could be requested as a "reasonable accommodation," as this process allows exemption
from any "zoning and land use regulations, policies, and practices" (see section 20.52.070.A,
Purpose) limited only by the findings. Accommodations such as the one here will establish
precedent for other requests, and may set a precedent for what might be required of private
housing providers to make reasonable accommodations, especially for small housing projects
like the land use at issue here. The City should be mindful of the federal definition of "disability"
and the intent of the Fair Housing laws to assure that zoning and land use policies do not keep
persons with disabilities from locating to their area, as described in the HUD website, when
considering future reasonable accommodation requests.
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Summary of Evidence Presented:
Real Party in Interest
At the outset of the hearing, Mr. Donald Fesler, a neighbor opposed to the accommodation,
argued that the real party in interest was the owner of the property, who was not the applicant
and who was not present, and that the application should be rejected. Mrs. Rhonda Moore, the
applicant, testified that the owner was her mother-in-law who was aware of the application and
had given approval for the filing. The Hearing Officer accepted these representations. Further,
Municipal Code section 20.52.070.C.I states that a request may be made "by any person with a
disability [or] their representative..." and here the application was submitted by "Rex and
Rhonda Moore," where the Moore's are the parents of the alleged disabled party who would be
the beneficiary of the accommodation, and are the disabled party's representative.
Summary of Testimonyipport
The City Staff Report recommends approval. The Staff Report stated that the disabled individual
requires the additional hedge height to provide privacy to alleviate severe symptoms triggered by
passing pedestrians and others. The hedge would shield an outdoor open space used by the
disabled individual, which is immediately adjacent to his bedroom, and accessed by the bedroom
sliding glass door. The disabled individual spends the majority of his time at home and uses this
area frequently.
Mrs. Rhonda Moore, mother of the disabled resident, explained that the request was for 78
inches in height because the disabled resident was 6 foot tall and she believed that an addition 6
inches over his height would most effectively screen him.
The Staff Report included a letter from the disabled individual's physician describing the
disability and stating that " It is imperative that my patient have the reasonable accommodation
... [to] alleviate[] symptoms [and] allow my patient to continue to enjoy a more secluded, secure,
quiet and safe area inside and outside his bedroom." Additional documentation of the disability
was submitted by the applicant, some of which was placed under seal at the applicant's request,
more fully discussed below.
Mr. Eric Henn, Lido Isle Community Association President, appeared and presented a letter in
qualified support, conditioned on the hedge not exceeding 60 inches, which the Association
Board had supported for the general area. Hedges in excess of this height would impact private
and public views to the harbor, he argued.
Summary of Testimony in Opposition
Mr. Don Fesler, owner of property near the subject property, submitted written and verbal
testimony. Mr. Fesler's written declaration argued that there was only a redacted document
supporting the disability and that any supporting medical information should be made public. He
challenged the veracity of the applicant regarding the hedges and argued the application was just
an attempt to circumvent the City's hedge height requirements. He argued that he had observed
the alleged disabled individual jogging, skateboarding, walking the dog, driving, attending
community BBQ's, and working out, and challenged that there was a qualifying disability. He
argued that the increased hedge height would not be effective in shielding noise or views through
the hedge, and that there were alternative bedrooms and a interior patio open to the sky that
provided alternatives for privacy, and therefore the additional hedge height was not necessary.
He argued that the accommodation would fundamentally alter the character of the community
because it would block views and be out of character with other hedges. He also questioned why
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the Moore's moved to Lido Isle as the close proximity of houses did not provide the same degree
of privacy they would have if they did not live on the island. Mr. Fesler's oral testimony
essentially repeated these objections, and also argued that the applicant placed the disability at
issue which waives any privilege and case law required all details to be disclosed.
Ms. Roberta Fesler, owner of property near the subject property, submitted written and verbal
testimony. Her written testimony also challenged the veracity of the applicant and the motive for
the application. She also challenged the need for the accommodation as alternative bedrooms and
outdoor spaces were available. She also challenged the nature of the disability noting she too had
observed the disabled individual jogging, skateboarding, and driving. She declared that she had
personally observed the interior patio and argued it was sufficient to meet privacy needs. She
also objected to the redaction and sealing of medical records. She also believed that the hedge
would create a safety issue in that the subject residence was located on a busy corner and the
oversized hedge would block the view of those traveling along the public way that was
perpendicular to the hedges. Mrs. Fesler's oral testimony essentially summarized her written
declaration, and also argued that the definition of "dwelling" does not include the adjacent
outdoor spaces and therefore a reasonable accommodation for the use and enjoyment of a
"dwelling" does not include the use of the outdoor spaces.
Ms. Manal Bozarth, a nearby neighbor, appeared and objected that the increased hedge height
would obstruct her and neighbors' view of the bay, would create a safety issue, and would alter
the look of Lido Isle. She questioned why the Moore's would purchase a home on Lido with
close living proximity and less privacy. She subsequently submitted written comments arguing
that alternative bedrooms were available to the disabled individual and questioned the legitimacy
of the disability.
Correspondence in opposition was received from Mr. Wayne Graveline, a nearby neighbor,
objecting that his view of the harbor would be blocked; and from Ms. Sandra Abrahamian, a
nearby neighbor, objecting that the oversized hedge would create a safety hazard for people
coming along the perpendicular public way.
Rebuttal testimony from the applicant clarified that the disabled individual may have been seen
performing the activities discussed above but that the disability was not a physical one. She also
explained that she was not previously aware that a reasonable accommodation procedure was
available which was the reason she had not submitted an application earlier.
Summary of Other Testimony
Correspondence was received from Mr. Jim Mosher discussing the appeal procedures and
suggesting appeals should be first heard by the Planning Commission before being heard by the
City Council.
The hearing concluded at 12:28 PM, but was held open until 4 PM Friday, August 2 for
additional document submittal, and to 5 PM Monday, August 5 for rebuttal to any additional
submittals.
Discussion:
Municipal Code section 20.52.070.A defines the Purpose of a Reasonable Accommodation to be
"to provide an individual with any disability an equal opportunity to use and enjoy a dwelling."
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To approve an individual Reasonable Accommodation, the Hearing Officer must find that the
application meets all five required findings of Municipal Code section 20.52.070.D.2.a. They
are:
The requested accommodation is requested by or on behalf of one or more
individuals with a disability protected under the Fair Housing Laws;
ii. The requested accommodation is necessary to provide one or more individuals
with a disability an equal opportunity to use and enjoy a dwelling;
iii. The requested accommodation will not impose an undue financial or
administrative burden on the City as "undue financial or administrative burden"
is defined in Fair Housing Laws and interpretive case law;
iv. The requested accommodation will not result in a fundamental alteration in the
nature of a Cityprogram, as 'fundamental alteration " is defined in Fair Housing
Laws and interpretive case law; and
V. The requested accommodation will not, under the specific facts of the case, result
in a direct threat to the health and safety of other individuals or substantial
physical damage to the property of others.
First Required Finding: Disability
The first finding requires that the application be for the benefit of "one or more individuals with
a disability protected under the Fair Housing Laws." The Federal HUD website on Disability
Rights in Housing, referenced above, states that the definition of a person with a disability
includes "any person who has a physical or mental impairment that substantially limits one or
more major life activities; has a record of such impairment; or is regarded as having such an
impairment." (See also Giebeler v. M&B Assocs, 343 F.3d 1143, 1147 (9th Cir. 2003) "a physical
or mental impairment which substantially limits one or more of such person's major life
activities.")
Here, a letter from the treating physician was submitted as part of the application packet. Based
on a request from the applicant, the City Attorney redacted key medical information from the
letter to protect privacy. The Hearing Officer requested additional unredacted documentation to
determine if a disability existed. Applicant Rhonda Moore requested that such information be
placed under seal to protect doctor -patient confidentiality and privacy.
At the outset of the hearing, the Hearing Officer announced and gave notice that the request to
seal documents would be considered, and announced the standards for determining whether to
approve the sealing of documents. The Hearing Officer explained that the California Rules of
Court, Rule 2.550, provides guidance on sealed records. Although the Reasonable
Accommodation administrative hearing is not conducted by a Superior Court or other "Court" as
envisioned by the California Judicial Council, it is a quasi-judicial proceeding and the Hearing
Officer finds that the Rules of Court provide persuasive reasoning.
Rule 2.550(d) describes findings required to seal records. They state five findings.
(1) There exists an overriding interest that overcomes the right ofpublic access to the
record. Here, the medical records contain doctor -patient communications that are
privileged and also raise privacy interests. They contain detailed diagnosis, medications,
and appointment schedules. They also include detailed descriptions of the diagnosed
condition. At issue is whether a mental disability exists. The Hearing Officer was
presented with substantial, credible medical evidence from well established and
recognized experts sufficient to make a determination whether a disability exists. As the
alleged disability is a mental impairment, any public interpretation of this information
and any challenge to its conclusions would likely require a third -party expert examination
of the patient, which would further invade the disabled resident's privacy interests. The
probative value to the public of the details of the disability are outweighed by the
prejudicial effect to the disabled resident of disclosing privileged and private information.
The doctor -patient and privacy interests in these details outweigh the right of public
access to the details of the disability.
(2) The overriding interest supports sealing the record. Here, the overriding interest is
doctor -patient confidentiality and privacy. These are foundational interests and support
the sealing of the records.
(3) A substantial probability exists that the overriding interest will be prejudiced if the
record is not sealed. Here, testimony at the hearing questioned the disability and several
opponents of the Reasonable Accommodation insisted on access to medical records. If
the medical records were made public there is a substantial probability the confidential
material in the record would be widely disseminated among opponents and neighbors,
prejudicing the patient's doctor -patient confidentiality and privacy interests.
(4) The proposed sealing is narrowly tailored. Here, the Hearing Officer sealed some of the
records submitted by the applicant and released others with confidential information on
the released documents redacted. This action is narrowly tailored to protect only doctor -
patient and privacy interests.
(5) No less restrictive means exist to achieve the overriding interest. Here, the medical
information was necessary for the Hearing Officer to establish that a disability existed.
There is no other alternative than to submit this information to the Hearing Officer and
there is no less restrictive means of conveying that information while protecting the
overriding interests of confidentiality and privacy.
Further, Municipal Code section 20.52.070.C.4.d specifically requires that "any request for
information regarding the disability of the individuals benefited complies with ... the privacy
rights of the individuals affected." The documents requested to be placed under seal were
submitted at the Hearing Officer's request and the Hearing Officer.must therefore observe the
privacy rights of the disabled resident.
The applicant submitted two sets of documents in response to the Hearing Officer's request for
additional documentation of the disability, with requests that they be sealed. For the first set,
guided by the above findings and requirements, the Hearing Officer announced the following at
the hearing:
An email requesting that the documents be sealed was held to be a public document. A letter
to the Hearing Officer from applicant Rhonda Moore describing the details of the disability
was to be sealed for privacy. An unredacted letter from the treating physician to the Hearing
Officer describing the disability would be sealed for privacy and a redacted version released
as a public document. A second letter from the treating physician containing details of the
IN
disability was to be similarly treated. A report from UC Irvine Health describing medications
and appointments would be sealed for doctor -patient confidentiality and privacy. A letter
from the Social Security Administration regarding Supplemental Security Income would be
made public with confidential information redacted for privacy. A detailed description of the
disability characteristics would be sealed for privacy. A letter from UC Irvine Health
regarding Jury Duty Exemption would be made public with information about the disability
redacted for privacy. The Reasonable Accommodation application would be made public
with confidential information redacted for privacy.
The second set of documents requested to be sealed was submitted by applicant Rhonda Moore
after the hearing, but within the time allowed by the Hearing Officer to submit supplemental
documents. Guided by the above findings and requirements, the Hearing Officer finds the
following regarding those documents:
Reports from a second treating physician, Dr. K. Himasiri Desilva, describing diagnosis,
medicine prescriptions, and appointments would be sealed for doctor -patient confidentiality
and privacy.
The hearing was left open until 4 pm Friday, August 2, 2019 for, among other reasons, an
opportunity for opponents to submit case law or other authority arguing that the disability has
been placed at issue requiring all document to be disclosed, and no additional authority was
received by that time.
Therefore, the preliminary determinations about sealed documents made at the hearing, and the
determinations made herein about the second set of documents, are now final and the documents
as described above shall be sealed and/or redacted.
The diagnosis, prognosis, and treatment plan described in the documents of the two treating
physicians, along with the letter from the Social Security Administration informing the subject
disabled individual that he met the medical requirements to receive Supplemental Security
Income benefits, is substantial evidence of a disability. Accordingly, I find that a disability exists
in accordance with statutory and case law definitions for Reasonable Accommodations.
The First Required Finding for a Reasonable Accommodation can be made.
Second Required Finding: Necessary for Equal Opportunity
The second Reasonable Accommodation finding requires that "[t)he requested accommodation is
necessary to provide one or more individuals with a disability an equal opportunity to use and
enjoy a dwelling." (Emphasis added.) Further, Municipal Code section 20.52.070.C.4.c,
Application Required Submittals, requires that the applicant document that the requested
modification is the minimum necessary ... to use and enjoy the residence." (Emphasis added.)
The Sixth Circuit Court of Appeals discussed the meaning of the terms "equal opportunity,"
"necessary," and "reasonable" in the context of a reasonable accommodation in Smith & Lee
Associates v. City of Taylor, Michigan, 102 F.3d 781 (6" Cir 1996), which provides persuasive
reasoning. (The Ninth Circuit Court of Appeals has cited to this case with general approval in
Giebeler, 343 F.3d at 1155.)
7
In Smith, the Court stated that the phrase "equal opportunity," "is concerned with achieving
equal results, not just formal equality ... [and that] the FHAA [Fair Housing Act Amendments of
1988] imposes an affirmative duty to reasonably accommodate handicapped people." (Id. at 795.
Emphasis original, internal citations omitted. See also Giebeler, 343 F.3d at 1146-1147.) Further,
the Court in Smith stated that "[t]he statute links the term `necessary' to the goal of equal
opportunity." (Smith, 102 F.3d at 795.) "Equal opportunity is a key component of the necessity
analysis ...." (Giebeler, 343 F.3d at 1155.) "The concept of necessity requires at a minimum the
showing that the desired accommodation will affirmatively enhance a disabled plaintiff's [here
the applicant] quality of life by ameliorating the effects of the disability." (Id. Internal quotes and
citations omitted.) With respect to what constitutes "reasonable," the Court stated that "an
accommodation is reasonable unless it requires `a fundamental alteration in the nature of a
program' or imposes `undue financial and administrative burdens."' (Id, quoting the United
States Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979).
Emphasis added.) The United States Supreme Court, in USAirways v. Barnett, 535 U.S. 391,
401-402 (2002), described "reasonable" as meaning "reasonable on its face ... feasible ...
plausible.")
This discussion appears to shift the burden to the public entity to show that the accommodation is
NOT reasonable.
This point was addressed by the Ninth Circuit Court of Appeals in Giebeler v. M&B Assocs.
There, the Court stated it had "not decided previously whether the plaintiff [here the applicant] or
the defendant [here the opponents] in an FHAA case bears the burden of showing whether a
proposed accommodation is reasonable." (Giebeler, 343 F.3d at 1156.) The Court described two
variations of the burden. In the first variation, the applicant bears the burden of showing the
accommodation was "possible," whereupon the burden shifts to the opponents to show that it is
NOT reasonable. In the second variation, the applicant bears the burden to show that the
accommodation seems "reasonable on its face," whereupon the burden shifts to the opponents to
show that the accommodation would cause an "undue hardship." (See Id.) The Court in Giebeler
did not decide this issue as it found that the applicant there met both standards. The Court went
on to discuss "reasonableness" and stated that "[o]rdinarily, an accommodation is reasonable
under FHAA when it imposes no fundamental alteration in the nature of the program or undue
financial or administrative burdens." (Id. at 1157; internal quotes and citations omitted.)
(Nowhere in the case research did this Hearing Officer find a requirement that the burden is on
an applicant to show that the modification be the "minimum necessary" despite the City
application requirement.)
The above discussion by the Courts ties the Second Required Finding of Municipal Code section
20.52.070.D.2 to the Third and Fourth Required Findings and here they will be discussed
together.
Here, the applicant has requested that hedges along the frontage of Strada Trieste, a non -
vehicular public way adjacent to the disabled resident's bedroom, be allowed to grow higher than
the maximum height of 42 inches, to a height of 78 inches. The disabled resident's treating
physician submitted a letter, partially redacted by the City for privacy, stating that this would
allow privacy and alleviate symptoms triggered by passers-by. It stated that the privacy would
allow the disabled resident to enjoy a secluded, secure, quite and safe area inside and outside of
the bedroom.
8
Documents sealed by this Hearing Officer, discussed above, detail the symptoms of the disabled
resident's mental impairment, describe how the symptoms can be aggravated, and concludes that
the hedge can alleviate the symptoms triggered by passers-by. The diagnosis of the impairment is
confirmed by sealed medical records from a second treating physician, Dr. K. Himasiri Desilva.
The two treating physicians, who have treated the disabled resident for years, are best positioned
to diagnose a mental impairment, its symptoms, and conditions that trigger those symptoms.
Given that, I find that an accommodation for additional hedge height seems reasonable on its
face, and the growth of oversized hedges is certainly possible, feasible, and plausible. This meets
the applicant's burden under either variation described by Giebeler. The burden then shifts to
opponents to show that the accommodation is NOT reasonable and/or that it would cause undue
hardship, per the burden described in Giebeler.
Here, opponents raise a number of objections. Essentially the objections that the requested
reasonable accommodation is either not reasonable or an undue burden are summarized as
follows: (1) The resident does not meet the definition of "disabled" as envisioned by the statutes;
(2) The accommodation is not the minimum necessary because the requested accommodation
would not be effective and alternatives are available; (3) The term "use and enjoyment of a
dwelling" refers to the interior of the home and does not include the adjacent outdoor spaces; (4)
The additional hedge height causes a fundamental alteration to the character of the community
and an undue hardship regarding views to the harbor; (5) The higher hedge creates safety
concerns; and (6) There is an improper motive behind the application.
These objections will each be addressed in the order listed above.
(1) Disability
As discussed above, documents from two treating physicians, a document from the Social
Security Administration confirming eligibility for Supplemental Security Income due to medical
conditions, and the testimony and supporting documents from the disabled resident's mother are
more than sufficient to find that a preponderance of evidence exists establishing the disability.
This objection is unpersuasive.
(2) Alternatives
Opponents argue that the objective of privacy can be achieved by the disabled resident using
another alternative, that is, by using a bedroom interior to the home that is not adjacent to the
public way, and by using a courtyard open to the sky in the interior of the home for outdoor
recreation which is also not adjacent to the public way. They argue this would eliminate the
distractions that trigger the disabled resident's symptoms and obviate the need for the
accommodation. They argue that two other Hearing Officer Reasonable Accommodation
Decisions, one decided by this Hearing Officer, support that argument based on the availability
of other alternatives. The two cases were RA2011-002 to exceed the allowable floor area ratio to
enclose a breezeway leading to a handicap accessible bathroom, and RA2018-002 to allow a golf
cart to park in the rear yard setback.
However, those two cases are inapposite to the case here.
RA2011-002 involved a major remodel to enlarge the ground floor kitchen and dining area, and
to relocate an existing bathroom. To make the new relocated bathroom accessible to the disabled
E
resident, the existing breezeway was proposed to be enclosed, thus exceeding the allowable floor
area ratio. The Hearing Officer found that the existing bath in its existing location was adequate
to provide the disabled person equal opportunity to use and enjoy the dwelling, and its relocation
was not necessary. In essence, the existing condition was sufficient and the barrier was created
by the applicant himself to accommodate the self-serving interest of a larger kitchen and dining
area. The reasonable accommodation for additional floor area to enclose the breezeway was
denied.
RA2018-002 involved a request to allow a golf cart to park in the rear yard so that the resident
could more easily access neighborhood stores and services. The golf cart was in addition to the
resident's family vehicle, which was not modified for any handicap accessibility, which the
applicant testified he was able to drive, and which was lawfully parked in the resident's garage.
The Hearing Officer found that the resident did not adequately establish his disability and that
reasonable accommodations were intended to allow equal use and enjoyment of the dwelling,
which did not include convenient use and enjoyment of neighborhood stores and services. The
request was denied.
Both cases involved a finding that no barriers were present that needed to be removed and
neither turned on the availability of other alternatives. In fact, nowhere in the findings required
by Municipal Code section 20.52.070.D.2, nor in the findings that a Hearing Officer may
consider in section 20.52.070.D.3-4, does the word "alternatives" appear.
Another denial with facts somewhat similar to the Moore application was Howard v.
Beavercreek, 276 F.3d 802 (6" Cir. 2002). The Sixth District Court of Appeals' reasoning there
merits examination. There, the Court upheld the denial of a requested accommodation to raise a
fence to six feet, which was in excess of city requirements. Mr. Howard, the disabled applicant,
argued he suffered from PTSD and believed his neighbors were spying on him, exacerbating his
condition. The fence was for the purpose of privacy and eliminating any undue stress. The City,
trial Court, and Appeals Court based their denial, in part, on the lack of a definitive opinion from
the treating physician, which stated only that it was feasible that the fence may relieve the stress.
They also found that Mr. Howard had lived in his home for several years and had not earlier
requested the accommodation, showing that he was not denied equal opportunity to enjoy the
housing or community of his choice. The trial court further found that there was "uncontroverted
evidence" that the fence would cause a threat to pedestrian and vehicular traffic. The Appeal
Court affirmed the denial. (Id. at 805-807.)
The Moore application here differs in several key respects. First, here, the treating physician was
much more emphatic in the need for the accommodation, stating that the accommodation was
"imperative" and that the hedges "alleviates these symptoms" of the disability. Second,
according to Mr. Fesler's declaration, the Moore's had only recently moved into the residence in
the summer of 2017 and began immediately planting oversized hedges. (Although Mr. Fesler
argued it was not for the purposes of privacy for the disabled resident). Mrs. Moore testified that
the only reason she waited so long to apply for a reasonable accommodation was that she only
recently learned such a procedure was available. Third, the City's Traffic Engineer has
determined that the required "safety triangle" trimming would mitigate any safety threats, and
the City Police Department's review did not reveal any safety issues. So the three principal
factors determining Howard, longevity in the neighborhood without the accommodation, an
equivocal opinion from the treating physician, and threats to pedestrian and vehicular traffic,
10
were not present here. For those reasons, while instructive, the facts of the Howard case do not
compel a similar finding of denial here. and its holding is by no means controlling here.
The facts and reasoning of the above three denials are substantially distinguished from the Moore
application and do not suggest denial here.
The case here is much more similar to three other requests that were all approved, one by this
Hearing Officer. They were RA2015-002, RA2016-001, and RA2018-001. All three involved
requests to accommodate an elevator to the second story. The argument against the Moore's
application here is that the disabled resident could simply confine himself to certain parts of the
house, thus avoiding the accommodation for additional hedge height. Applying that same logic
to the elevator cases, those residents could have been told to simply confine themselves to the
first floor, thus avoiding the accommodation for an elevator. But that was not the standard for the
three elevator cases and is not the standard for the case here for hedges.
As discussed above, the term "necessary" is linked to the goal of equal opportunity. The required
finding references an equal opportunity to use and enjoy a dwelling. Here, a resident does not
enjoy equal opportunity to use and enjoy a dwelling when they are confined to only parts of the
dwelling, effectively barring them from other parts of the home such as the second story in the
case of the elevator requests or a specific bedroom as here. "The concept of necessity requires at
a minimum the showing that the desired accommodation will affirmatively enhance the disabled
[resident's] quality of life by ameliorating the effects of the disability." (Smith, 102 F.3d at 795.)
That minimum showing was met by the documentation from the treating physician as discussed
above.
This objection is unpersuasive.
A few opponents questioned why the Moore's would move to this location, implying that other
locations would provide an alternative where more privacy would be available. But living in the
neighborhood of their choice is exactly the point. Every court reviewing a reasonable
accommodation references this goal of the FHAA. For example, the Ninth Circuit Court of
Appeals noted "Congress intended the FHAA to protect the right of handicapped persons to live
in the residence of their choice in the community." (City of Edmonds v. Washington State Bldg.
Code Council, 18 F.3d 802 (91h Cir. 1994); See also Smith, 102 F.3d at 795, the Act prohibits
excluding people with disabilities entirely from zoning neighborhoods or giving them less
opportunity to live in certain neighborhoods than people without disabilities.) While it is true that
Lido Isle is densely packed with very small lot sizes, high lot coverage, and minimum outdoor
usable recreation space, the fact that other neighborhoods with more lot space and/or privacy are
available as an alternative does not compel disabled persons to exhaust those alternatives and to
forgo living in the neighborhood of their choice.
This objection is unpersuasive.
(3) Definition of "Dwelling"
Opponents argue that reasonable accommodations must be limited to use and enjoyment of the
dwelling, which they argue, is defined by 42 USC 3602(b) as only those areas within the
enclosed home and not the adjacent open spaces.
This is an overly narrow interpretation of the letter and intent of the statute. The intent is to
prevent discrimination and to promote equal opportunity. FHAA section 42 USC 3604(f)(3),
which contains the language for "reasonable accommodations," also defines "discrimination" in
terms of the "premises" which suggests more than the four walls of the structure. (Black's Law
Dictionary, Seventh Edition, defines "premises" to mean "a house or building, along with its
grounds." Emphasis added.) If barriers must be removed to the equal use and enjoyment of the
interior of the home, it makes little sense to allow barriers to the equal use and enjoyment of the
outdoor spaces of the premises immediately adjacent to the home. Any reasonable person would
take for granted that, if their bedroom fronted on an outdoor space with a sliding glass door
leading to it, they would be entitled to use that space as part of their dwelling and premises. Such
is the case here. This Hearing Officer is unaware of any case law supporting this narrow
interpretation. Notably, the case in Howard, discussed above, included the argument that a
privacy fence was needed, inter alia, to prevent leaves from blowing into the yard which
exacerbated a heart condition when the applicant raked them. Although denied on other grounds,
the Court there made no distinction that this outdoor area was disqualified from a reasonable
accommodation request due to not meeting the definition of "dwelling." Further, the
interpretation of reasonable accommodations in all case law has been liberally applied, including
the reasoning discussed above that places the burden on opponents to show the accommodation
is NOT reasonable. The argument that the home, or "dwelling," is limited to the space within the
dwelling walls, without supporting authority applying this to reasonable accommodations, is
insufficient to show that the accommodation is NOT reasonable.
This objection is unpersuasive.
(4) Fundamental Alterations or Undue Hardship — Views
Opponents argue that allowing oversized hedges in this location would create a fundamental
alteration to the character of the community. Currently, all hedges located in the front yards in
the neighborhood where the accommodation is requested are limited to 42 inches by City
regulations. The local homeowners association (HOA), the Lido Isle Community Association,
testified that they recently approved a CC&R requirement to allow hedge heights to increase
from 30 inches to 60 inches to allow privacy but which still allowed some view to the harbor. In
addition to this requirement, the CC&Rs required all trees to be trimmed to 7 feet off the ground.
This would allow a view corridor of 2 feet between the 5 foot tall hedges and the 7 foot tree
trimmings off the ground. The HOA argued that if this particular hedge was allowed up to 78
inches as requested, and trees are trimmed down to 84 inches, it would leave only 6 inches of
view corridor. The HOA argued that the requested accommodation would impact all homes north
(away from the water) of the accommodation looking toward the harbor and all homes on the
applicant's side of the Strada (pedestrian public way) in that those homes would no longer have a
clear view. The HOA supported an accommodation of 6 feet but not the 78 inches. Other
neighbors objected that their view of the harbor and water would be restricted. They argued this
restriction on the views would be an undue burden and fundamental alteration to their property
rights and to the public views.
In water -oriented communities, views to the water are an important property interest that has
significant economic value. Opponents were quick to point that out. However, the "fundamental
alteration" in the findings refers to the "nature of the City's zoning program." Here, it is the
HOA's program for view preservation not the City's zoning program that is affected. While the
accommodation may indeed affect the views of individuals and the public, it is not a fundamental
alteration to the zoning program and no such argument was presented. Further, no case authority
12
was presented in support of this argument that would show that private and public views were
the type of fundamental alteration as "defined in Fair Housing Laws and interpretative case law"
as required by the finding. Even if the HOA program were to be considered, the HOA
jurisdiction includes many other streets and strada on the island which would be completely
unaffected by the requested accommodation.
This objection fails to show a fundamental alteration in the nature of a program.
However, the Court in Smith, discussed above, did note that, in determining the reasonableness
of an accommodation, cost to the objectors and benefit to the applicant merit consideration as
well, and a court must balance the objector's interest against the need for the accommodation.
(Smith, 102 F.3d at 795; see also Bronk v. Ineichen, 54 F.3d 425, 429 (7t' Cir. 1995) reasonable
accommodation not "an obligation to do everything humanly possible to accommodate a
disabled person.")
Here, after showing that the accommodation is reasonable and/or possible, the burden shifts to
opponents to show that the accommodation is NOT reasonable or would cause undue hardship.
Opponents argue the added hedge height would be a significant cost to them and cause them an
undue hardship by limiting their views. But in a densely packed urban environment such as this,
many things may obstruct views, including the numerous other hedges and trees along the view
corridor. The Staff Report, the applicant, and the HOA all reported that there are many other
oversized hedges in the immediate neighborhood which presumably also block views. The
existing private views argued here are limited at best and no view analysis was presented to
substantiate the degree of loss.
Further, when the Courts in Smith and Bronk noted that costs and benefits should be balanced,
they were referring to costs to the entity providing the accommodation. Here, the accommodator
is the City, and costs to the City are addressed in the Third Required Finding that there be no
undue burden on the City, and the Fourth Required Finding that there be no fundamental
alteration to a City zoning program. The City Staff Report declared there to be no such adverse
impacts. Any impact to a third -party should be viewed in the context of those findings.
Regarding private or public views, there is no City zoning program that has been identified for
the protection of views. The subject property is within the coastal area and has an active local
coastal program (LCP), but no evidence was presented that any views to the coast or harbor are
to be protected. Third -party impacts are also viewed in the context of the Fifth Required Finding
that there be no health or safety threat, or substantial physical damage to the property of others.
The City Traffic Engineer and City Police Department did not identify any health or safety threat
(discussed more fully below). Further, the blockage of a partial harbor view is not the direct
causation of physical damage to property of others. Even if such an attenuated argument could be
made based on indirect causation, no evidence was submitted of "substantial" property damage,
or that a view to the harbor was even "property.". Third -party impacts could also be viewed in
the context of the environmental review, and here the Staff Report found "no potential to have a
significant effect on the environment."
In short, third -party impacts should be reviewed in the context of the Fourth Required Finding
for any adverse effects on the third -party relative to a City zoning program, or in the context of
the Fifth Required Finding for any adverse effects on third -party health and safety or physical
property damage, or the environmental review for any adverse effects on a third -party relative to
13
environmental impacts. In addition, the cost analysis should take into account the City's
affirmative duty to accommodate the needs of disabled persons.
On balance, the limited view obstruction for a limited number of people has not been shown to
rise to a level to outweigh the benefit to the applicant to remove barriers to the equal opportunity
for the use and enjoyment of a dwelling, and does not overcome the affirmative duty to provide
reasonable accommodations.
This objection is unpersuasive.
(5) Safety Concerns
Opponents argue that the additional hedge height will cause safety issues.
The subject property is located on the corner of Strada Triese and Via Lido Soud. The oversized
hedge is proposed to be along Strada Trieste, a pedestrian public way running generally north -
south to the harbor. It intersects with Via Lido Soud, running generally east -west, which is a
public street with an adjacent sidewalk. Opponents argue this is a very busy intersection for
pedestrians and that the hedge, located on the corner of the intersection, will block the view of
people coming around the corner at the intersection.
The City Traffic Engineer has recommended that the hedge be trimmed and maintained to a
maximum of 36 inches along this corner in a "sight distance triangle" measuring 5 foot by 5 foot
along the corner, to address this safety issue. Further, the Police Department has reviewed the
request and expressed no safety concerns, staff reported.
The City Traffic Engineer and the City Police Department have not expressed concern over
safety and the City Traffic Engineer has recommended a mitigation measure to address any
potential traffic and pedestrian safety issue.
This objection is unpersuasive.
(6) Improper Motive
Opponents have argued that this reasonable accommodation request is merely an "end -run"
around the City's hedge height requirements. There was much discussion at the hearing and in
written declarations about prior code enforcement actions by the City and homeowners
association to enforce the existing requirements upon the applicants. Opponents argued that the
reasonable accommodation application was just a circumvention of the rules and enforcement
actions, and that the applicant only desires to have higher hedges.
Prior code enforcement actions are not before this Hearing Officer, and the City, nor this Hearing
Officer, enforce homeowner association rules. While this Hearing Officer has cautioned against
using the reasonable accommodation procedure to circumvent other more appropriate procedures
for resolving issues, this application must be taken at face value and reviewed pursuant to the
Municipal Code, relevant statutes and case law.
This objection is unpersuasive.
All arguments presented by opponents in items 1-6 above were considered and are found not to
rise to the level of showing that the accommodation is NOT reasonable.
14
The Second Required Finding can be made.
Third Required Finding: Undue Financial or Administrative Burden on the City
The City Staff Report concluded that there would be no financial or administrative burden on the
City, and none were presented at the hearing.
On this basis, and the on basis discussed under the Second Required Finding, the Third Required
Finding can be made.
Fourth Required Finding: No Fundamental Alteration in City's Zoning _Program
The City Staff Report concluded that there would be no fundamental alteration to the City's
zoning program. As discussed above, the argument that the allowance of this one hedge to
exceed the height limit would cause a fundamental alteration to the character of the area and to
the views to the harbor was found to be unpersuasive.
On this basis, and the on basis discussed under the Second Required Finding, the Fourth
Required Finding can be made.
Fifth Required Finding: Health and Safety; Physical Damage to Property of Others
As discussed above, the City Traffic Engineer and City Police Department have concluded that,
as mitigated, the request would not threaten health or safety of other individuals. As discussed
above, opponents have argued that their view of the harbor would be obstructed and that a harbor
view is a form of property which is damaged. As discussed above, this argument, in the context
of a reasonable accommodation, is unpersuasive.
On this basis, and the on basis discussed under the Second Required Finding, the Fifth Required
Finding can be made.
Environmental Findings
The accommodation has been found to be exempt from environmental review, which is the
mechanism for identifying environmental impacts including safety and impacts to others.
Planning staff found the request to have no potential to have a significant effect on the
environment.
Conclusion:
State and federal Fair Housing Laws are intended to protect those with disabilities from housing
discrimination and to provide them a level playing field to access housing. Providing reasonable
accommodations in support of state and federal Fair Housing Laws is good public policy. It is a
powerful tool for creative solutions. But it should be used judiciously and take into account the
impacts on others.
The burden of proof requires that the applicant must first show that a disability exists. Here, the
documentation from treating physicians confirms the disability. Then, the burden rests with the
applicant to show the requested accommodation is reasonable on its face, meaning it is feasible,
possible, or plausible. Here, growing a hedge beyond the 42 inch requirement to a maximum of
78 inches meets this low burden. Then the burden shifts to opponents to show the
accommodation is NOT reasonable or creates an undue hardship or will be a fundamental
alteration to a city program. Costs to opponents are to be balanced against the benefit to the
applicant. Here, the arguments that a height exemption for one hedge will be a fundamental
15
alteration to a citywide hedge height program or to the HOA island -wide hedge height CC&R is
not persuasive. Further, although the accommodation may obstruct some private views which are
currently partial at best, it has not been shown to be substantial physical property damage, and
does not outweigh the benefit to the applicant to fully use and enjoy his dwelling and associated
outdoor recreational open space, and to live in the neighborhood of his choice. While there may
or may not be other motives or benefits to the application, the application on its face complies
with all required findings.
Resolution:
Resolution No. H02019-001, as presented in Attachment No. 1 in the Staff Report and modified
herewith, is adopted.
This Decision and Order, in its entirely, is incorporated by reference into the Resolution.
ORDER:
Resolution No. H02019-001, Approving Request for Reasonable Accommodation is hereby
ADOPTED.
This Order is effective upon service on the parties.
APPEAL OF DECISION ON REASONABLE ACCOMMODATION:
This DECISION AND ORDER is appealable to the Newport Beach City Council.
Municipal Code section 20.52.070.13 designates the Hearing Officer as the Review Authority to
approve, conditionally approve, or deny applications for a reasonable accommodation.
Subsection D. Lb states that the Hearing Officer action shall be subject to appeal procedures
identified for any other discretionary permit. Section 20.50.030, Table 1, states that the Review
Authority for an appeal of a Hearing Officer decision on a reasonable accommodation is the City
Council. Subsection D.l.c provides that "[o]n review the [City] Council may sustain, reverse, or
modify the decision of the Hearing Officer or remand the matter for further consideration...."
This action shall become final and effective fourteen days following the date this Resolution was
adopted unless within such time an appeal to the City Council is filed with the Community
Development Director in accordance with the provisions of NBMC Title 20 Planning and Zoning
and NBMC Title 21 Local Coastal Program Implementation Plan.
IY 1� _ZK1Z1]: _) 1
Date: August 15, 2019
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