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HomeMy WebLinkAboutHO2009-002 Reasonable Accommodation Levine ResidenceRESOLUTION NO. HO- 2009 -002 A RESOLUTION OF THE HEARING OFFICER DESIGNATED BY THE CITY OF NEWPORT BEACH APPROVING REASONABLE ACCOMODATINO NO. 2008 -002 (PA2008 -190) WHEREAS, an application was filed a Reasonable Accommodation by Julian Levine, with respect to the property located 115 46w Street in Newport Beach; and legally described as Lot 17, Block 46, River Section Tract in the City of Newport Beach, County of Orange, State of California (APN 424 - 412 -09), requesting approval of a Reasonable Accommodation for relief from the Newport Beach Municipal Code Section 20.66.040 (Parking Standards) for the retention of a substandard size parking space in an existing garage and from Section 105.1 (Permits Required) of the California Building Code for improvements constructed without permits; and WHEREAS, an application for reasonable accommodation has been prepared in accordance with the provision of Chapter 20.98 of the Municipal Code based on the following findings and facts in support of such findings: 1. Finding: That the requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. This finding can be made. The Applicant has submitted evidence proving to the satisfaction of City staff that he is a disabled individual, suffering from a condition that substantially impairs one or more of his major daily life activities. 2. Finding: That the requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. This finding can be made based on the following facts. The Applicant has submitted evidence of disability- related income limitations and medically necessary expenses, as well as evidence of the cost of complying with the Zoning and Building Code permitting requirements. The evidence submitted, along with the contents of the Applicant's Affidavit of Disability - Related Financial Hardship (signed by the Applicant and his wife under penalty of perjury) indicate that the financial hardship is directly related to the Applicant's disability, and that the Applicant cannot pay for the construction costs of returning the garage to its permitted condition at this time. In addition, the Applicant states that undertaking construction and living in his dwelling during construction will exacerbate the stress he experiences as he copes with his disability. The Applicant's doctor has stated in writing that stress can aggravate the Applicant's condition and lead to further deterioration, and has advised the Applicant to avoid stressful situations to help slow the progression of his condition. Revenue and Taxation Code Section 19542 and King v. Mobile Home Rent Review Board, 216 Cal.App.3d 1532 (1989) preclude City staff from reviewing and reporting on City of Newport Beach Hearing Officer Resolution 115 46th Street (PA2008 -190) Page 2 of 5 the contents of the Applicant's tax returns, even in an administrative hearing setting. Therefore, the City requires applicants for reasonable accommodations that involve the waiver of a fee or other financial requirement to submit alternate forms of evidence. IRS Form W -2s, corporate profit and loss statements, and other applicable non - privileged forms of evidence are requested, and a completed Affidavit of Disability- Related Financial Hardship is required in order for staff to make a recommendation. NBMC Section 20.98.025(C) permits the City to consider the following factors in determining whether the requested accommodation is necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling: R. Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. If the requested accommodation is granted, the Applicant will be able to remain in the dwelling where he has lived for 28 years. The Applicant has stated that his quality of life will be maintained and enhanced if the accommodation is granted, and substantially diminished if it is not. B. Whether the individual or individuals with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Without the approval of this application, the Applicant believes he will not be able to continue to occupy the dwelling where he has lived for 28 years. 3. Finding: 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. This finding can be made because the existing garage configuration can still be used for the off - street parking of the Applicant's single vehicle, and because the Applicant is not requesting a permanent waiver of compliance with the Zoning and Building Code requirements. A delay of enforcement will not create an undue financial burden on the City. The Applicant's offer to record a covenant ensuring eventual compliance reduces the City's administrative enforcement burden to a reasonable level. 4. Finding: 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. Because the Applicant can park his vehicle in the substandard size parking space inside the garage, and because the unpermitted wall satisfies fire and life safety requirements of the California Building Code, this finding can be made. City of Newport Beach Hearing Officer Resolution 11546 Ih Street (PA2008 -190) Page 3 of 5 The purpose of NBMC Chapter 20.66 (Off - Street Parking and Loading Regulations) is to ensure that off - street parking facilities are provided for land uses in proportion to the need created by each use. The Applicant has stated that he and his wife own only one vehicle, a Volkswagen Bug, which they purchased because it would fit inside the existing garage space. The Applicant was able to demonstrate to the satisfaction of staff that the vehicle can be parked in the substandard parking space. As the Applicant is providing sufficient off - street parking for his household's use, and has agreed to record a covenant against the property so that future owners will not continue the use of the non - compliant condition, granting the accommodation will not undermine the purpose which the requirement seeks to achieve. The Newport Beach Fire Marshal has inspected the unpermitted interior wall to determine whether the wall creates an unsafe fire or life safety condition for the Applicant's household or neighboring properties. Granting a temporary delay in the wall's removal will not undermine the purpose or effect of the California Building Code's life safety protections. Pursuant to Section 20.98.025(D) of the NBMC, the City may also consider the following factors in determining whether the requested accommodation would require a fundamental alteration in the nature of the City's zoning program: A. Whether the requested accommodation would fundamentally alter the character of the neighborhood. The existing single - family dwelling is in compliance with the two-family residential zoning designation. Temporarily allowing the existing unpermitted interior wall to remain in place will not create fundamental alteration in the character of the surrounding neighborhood. B. Whether the accommodation would result in a substantial increase in traffic or insufficient parking. The applicant requests reasonable accommodation from the Zoning Code's required parking space size, and temporarily retaining an unpermitted interior wall. The Applicant has demonstrated that his household vehicle can be parked in the nonconforming parking space. The garage will be returned to its original permitted condition at a future date. 5. Finding: That the requested accommodation will not, under the 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. City of Newport Beach Hearing Officer Resolution 115 46" Street (PA2008 -190) Page 4 of 5 This finding can be made. As discussed above, the Newport Beach Fire Marshal inspected the garage and confirmed that the wall separating the garage and the dwelling portion of the structure is in compliance with fire and life safety requirements of the California Building Code. The unpermitted improvements are not likely to result in a direct threat to the health or safety of individuals or properties in the neighborhood. WHEREAS, this application for reasonable accommodation has been determined to be categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. NOW, THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer designated by the City of Newport Beach approves Reasonable Accommodation No. RA2008 -002, subject to the Conditions of Approval as depicted in Exhibit "A ". Section 2. This action shall become final and effective fourteen days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk or this action is called for review by the City Council in accordance with the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED AND ADOPTED THIS Ile DAY OF FEBRUARY, 2009. BY-. W/�� Thomas W. Allen, Hearing Officer ATTEST: City of Newport Beach Hearing Officer Resolution 115 4eh Street (PA2008 -190) Page 5 of 5 Exhibit "A" Conditions of Approval Levine Residence, 115 46th Street, Newport Beach, California Reasonable Accommodation No. 2008 -002 (PA2008 -190) 1) The Applicant shall record a covenant with the Orange County Recorders Office stating: "Upon the occurrence of the sale or other transfer of the subject property, the substandard garage parking space shall be returned to its former permitted dimensions (approximately 9 feet in width by 22 feet in length) with all necessary permits ". 2) Until such time as the property is brought into compliance with all applicable Zoning Codes, the applicant shall have a covenant recorded against the property which may only be removed with the concurrence of the City of Newport Beach, indicating that the property is not compliant with applicable Zoning Codes. A recorded copy of this covenant shall be submitted to the Planning Department. 3) The existing parking space in the garage must remain clear from obstructions to allow for the parking of the Applicant's vehicle.