HomeMy WebLinkAbout01_Rooten Golf Cart Parking_PA2018-071
CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
July 17, 2018
Agenda Item No. 1
SUBJECT: Rooten Golf Cart Parking (PA2018-071)
Reasonable Accommodation No. RA2018-002
SITE LOCATION: 1411 North Bay Front
APPLICANT: Don and Joan Rooten
OWNER: Noel G. Watson
PLANNER: Chelsea Crager, Associate Planner
949- 644-3227, ccrager@newportbeachca.gov
PROJECT SUMMARY
A reasonable accommodation application requesting relief from the Newport Beach
Municipal Code (“NBMC”) Section 20.40.090 (Parking Standards for Residential Uses) and
Sections 20.30.110 and 21.30.110 (Setback Regulations and Exceptions) to allow the
parking/storage of a golf cart within the rear setback abutting an alley. The golf cart storage
is requested to provide access and transportation for an individual with a disability living in
a residence with legal nonconforming parking. There are no physical alterations or additions
proposed to the existing residence or garage as a part of the application.
RECOMMENDATION
1) Conduct a public hearing;
2) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines,
California Code of Regulations, Title 14, Chapter 3, because it has no potential to
have a significant effect on the environment; and
3) Adopt Resolution No. _ approving Reasonable Accommodation No. RA2018-002
(Attachment No. HO 1).
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VICINITY MAP
GENERAL PLAN ZONING
LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE Two-Unit Residential (RT) Balboa Island (R-BI) Two-unit dwelling
NORTH Newport Bay Newport Bay Newport Bay
SOUTH RT R-BI Single- and Two-unit dwellings
EAST RT R-BI Single- and Two-unit dwellings
WEST RT R-BI Single- and Two-unit dwellings
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INTRODUCTION
Project Setting
The subject property is developed with an existing two-story, two-unit dwelling including
a two-car garage located on the North Bay Front of Balboa Island. Surrounding land uses
include single-family development, two-family development, and a public boardwalk to
the north and east fronting the Newport Bay and the Grand Canal. The rear lot line of the
property is abutting North Bay Front alley, a 15-foot wide public alley.
Project Description
A reasonable accommodation application requesting relief from the Newport Beach
Municipal Code (“NBMC”) Section 20.40.090 (Parking Standards for Residential Uses) and
Sections 20.30.110 and 21.30.110 (Setback Regulations and Exceptions) to allow the
parking/storage of a golf cart within the 5-foot rear setback abutting an alley. The golf cart
is approximately 4 feet wide and 9 feet long.
Background
According to permit history, the two-story structure was converted from a single-family
residence to a duplex in 1958. There has been no floor area increase since that time and
no significant alterations to the building. The existing two-car garage is shared between
the two residential units for vehicle parking. One garage space is allocated to each
dwelling unit.
DISCUSSION
General Plan, Local Coastal Plan, and Zoning Code
The subject property is designated RT (Two-Unit Residential) by the General Plan Land
Use Element. The site is located within the RT-E (Two Unit Residential) land use category
of the Coastal Land Use Plan. The site is located in the R-BI (Balboa Island) Zoning
District and Coastal Zoning District. The two-unit residential development is a permitted
use under these land use designations.
Pursuant to NBMC Section 21.52.036.C.1, the project is exempt from the requirements
of a coastal development permit since there are no proposed modifications to the existing
residence that would result in an increase of gross floor area, height, or bulk of the
structure by more than 10 percent.
The R-BI Zoning and Coastal Zoning Districts require a 5-foot rear setback on residential
lots with a rear property line abutting an alley less than or equal to 15 feet in width.
Pursuant to NBMC 20.30.110.D.1.c, rear setback areas abutting alleys are required to be
kept clear of obstructions at the ground level to facilitate vehicle circulation and
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maneuverability in the alley therefore, no encroachments including parking spaces are
allowed at the ground level. The proposed storage/parking of the golf cart will encroach
up to the entire five feet of the required rear setback for the length of the golf cart, or
approximately nine feet.
Reasonable Accommodation
The parking/storage space requires a deviation from the development standards in the
R-BI Zoning and Coastal Zoning Districts for a ground-level encroachment into the
required 5-foot rear setback abutting an alley. The applicant chose to request a
reasonable accommodation because one of the persons residing in the home has a
disability. In compliance with Federal and State fair housing laws, reasonable
accommodations in the City’s zoning and land use regulations, policies, and practices are
permitted when needed to provide an individual with any disability an equal opportunity
to use and enjoy a dwelling.
The Zoning Code and Local Coastal Program include a procedure that allow for
reasonable accommodations if certain findings can be made. The approval authority for
a reasonable accommodation lies with the Hearing Officer in accordance with the
provisions of Newport Beach Municipal Code (NBMC) Section 20.52.070(B) (Reasonable
Accommodations, Review Authority). The Hearing Officer is also required to conduct a
public hearing in compliance with NBMC Chapter 20.62 (Public Hearings).
Pursuant to Section 21.16.020.E. (Reasonable Accommodations) of the Local Coastal
Program Implementation Plan, the review authority may also 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.
The applicant states that convenient access to the golf cart is necessary for the resident
to access the neighborhood from the residence. A physician’s letter (Attachment No. HO
3) prepared by Carey L. O’Bryan IV, M.D., F.A.C.C. has been submitted supporting the
claim and the need for close access to transportation without walking a long distance. Dr.
O’Bryan notes that the individual with a disability is able to drive and walk short distances;
however is unable to walk long distances. The allowance to park and store a golf cart in
the rear yard setback would allow access to the golf cart without walking a long distance
in accordance with Dr. O’Bryan’s recommendation. According to Dr. O’Bryan, the
condition is severe enough to warrant the reasonable accommodation requested.
Required Findings and Factors of Consideration
The Hearing Officer is designated to approve, conditionally approve, or deny all
applications for a reasonable accommodation. Section 20.52.070(D)(2) of the NBMC
requires that all of the following findings be made in order to approve the reasonable
accommodation:
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i. That the requested accommodation is requested by or on behalf of one or more
individuals with a disability protected under the Fair Housing Laws.
ii. That the requested accommodation is necessary to provide one or more
individuals with a disability an equal opportunity to use and enjoy a dwelling.
iii. 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.
iv. That the requested accommodation w ill 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.
v. 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.
In addition to the required findings, the Hearing Officer may consider, but is not limited to,
the following factors in determining whether the requested accommodation is the
minimum necessary to provide one or more individuals with a disability an equal
opportunity to use and enjoy a dwelling and whether the requested accommodation would
require a fundamental alteration in the nature of a City program (NBMC Section
20.52.070(D)(3-4):
a. Whether the requested accommodation will affirmatively enhance the quality of life
of one or more individuals with a disability;
b. Whether the individual(s) with a disability will be denied an equal opportunity to
enjoy the housing type of their choice absent the accommodation;
c. Whether the requested accommodation would fundamentally alter the character of
the neighborhood;
d. Whether the accommodation would result in a substantial increase in traffic or
insufficient parking; and
e. Whether granting the requested accommodation would substantially undermine
any express purpose of either the City’s General Plan or an applicable specific
plan.
Upon review of the application, staff believes that all of the findings can be made. The
allowance of golf cart parking/storage in the rear setback area is necessary for the
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disabled resident, who is unable to walk long distances, to access the surrounding
neighborhood, thus enhancing quality of life.
The Zoning Code requires two parking spaces per dwelling unit for two -unit developments
located on Balboa Island, however in this case the property is nonconforming and
provides only one parking space per unit. Typically, a resident may park a second vehicle
on a public street. In this case, the closest on-street parking is located approximately 170
feet away on Marine Avenue. Marine Avenue is impacted with a combination of resident,
visitor and commercial parking resulting in available parking spaces often being farther
than 170 feet away. Because of difficulty walking long distances, a second on -site vehicle
parking spot is necessary for the disabled resident to access their vehicle (golf cart) and
stores and services in the surrounding community allowing the disabled resident to reside
in the nonconforming residence in an area impacted by parking. Any alternative
modifications necessary to accommodate the parking/storage of the golf cart outside of
the rear setback area cannot be accommodated at existing residence without significant
disruption to the interior and exterior of the home, including construction costs that may
render the modification unattainable by the applicant. Therefore, the disabled individual
would be denied an equal opportunity to enjoy the residence, including the surrounding
neighborhood, without the reasonable accommodation.
The proposed accommodation would not result in any fundamental alterations to the
character and use of home, neighborhood or the City’s Zoning program. There is no floor
area addition proposed, and there are no proposed changes to the bulk , mass, or scale
of the existing two-unit development. The parking/storage space is located at the
termination of the North Bay Front Alley with no through access, abutting a public
boardwalk and will not block the garage. The golf cart would be visible from the public
boardwalk; however, it does not significantly alter the view of the public alley. The
proposed parking/storage area would not intensify the existing two-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. Furthermore, the addition of the
parking/storage space will not increase traffic or interfere with existing on-site parking.
The allowance of golf cart parking in the alley setback proposes no direct threat to the
health or safety of other individuals because the location of the golf cart does not impede
vehicle traffic or pedestrian access and does not produce noise or fumes greater than
what is reasonably expected in a public alley. The proposed location has been reviewed
by the Public Works Department, and they have no concerns.
The rear lot line of the property abuts the 15-foot wide North Bay Front Alley, which
requires a 5-foot setback to facilitate circulation and vehicle maneuverability in the alley.
The setback also reduces the mass of buildings. The requested golf cart storage/parking
is located at the termination of North Bay Front Alley directly across from a side property
line of a single family residence at 333 Grand Canal. The residence at 333 Grand Canal
has frontage on two alleys, and does not have vehicle access from North Bay Front Alley.
The requested golf cart parking/storage is located at the termination of the alley and
therefore does not interfere with vehicle circulation or maneuverability in the alley. The
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requested storage location is located in a public alley which connects Marine Avenue to
the public boardwalk. The proposed storage is located entirely on private property, leaving
15 feet clear in the public alley for unobstructed pedestrian access between the boardwalk
and Marine Avenue.
There are no feasible alterations for providing an accommodation at the dwelling that
would provide greater consistency with the LCP. The resulting design, bulk, and scale of
development maintains a building envelope consistent with the existing neighbor
character and will not degrade the impacts to public views or coastal access. The golf
cart would be located in a public alley, where it would not block public views of the water
or change the visual quality from the public boardwalk because the cart would be
landward of the boardwalk.
The proposed parking/storage location would not impose an undue financial or
administrative burden on the City and does not require a building permit. Lastly, since
there are no physical changes to the site, removal of the reasonable accommodation
when the disabled resident has fully recovered or does not reside at the site, as required
by the Zoning Code, will be far easier than removing a physical structure.
Alternatives
1. The Hearing Officer may approve other reasonable accommodations that provide a
similar level of benefit to the applicant.
2. The Hearing Officer may deny the Reasonable Accommodation request (Attachment
No. HO 2).
Environmental Review
This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect
on the environment. Project implementation does not include any floor area addition to the
existing two-unit dwelling.
Public Notice
Notice of this hearing was published in the Daily Pilot, mailed to all owners of property
within 300 feet of the boundaries of the site (excluding intervening rights -of-way and
waterways) including the applicant and posted on the subject property at least 10 days
before the scheduled meeting, consistent with the provisions of the Municipal Code.
Additionally, the item appeared on the agenda for this meeting, which was posted at City
Hall and on the City website.
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Prepared by:
Submitted by:
ATTACHMENTS
HO 1 Draft Resolution Approving the Reasonable Accommodation
HO 2 Draft Resolution Denying the Reasonable Accommodation
HO 3 Physician’s Letter
HO 4 May 15, 2018 Site Photos
HO 5 Submitted Site Photos and Plans
HO 6 Correspondence
01/12/18
8
Attachment No. HO 1
Draft Resolution Approving the
Reasonable Accommodation
9
RESOLUTION NO. HO2018-####
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH APPROVING REASONABLE
ACCOMODATION NO. RA2018-002 FOR THE PROPERTY
LOCATED AT 1411 NORTH BAY FRONT (PA2018-071)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Don Rooten and Joan Rooten, on behalf of Noel G. Watson,
(“Applicant”) requesting approval of a reasonable accommodation, with respect to property
located at 1411 North Bay Front, Newport Beach, California and legally described as Lot
21 and the Easterly Half of Lot 20, Block 14, Section 4 Balboa Island, Tract 102
(“Property”).
2. The Applicant has submitted a reasonable accommodation application requesting relief
from Newport Beach Municipal Code (“NBMC”) Section 20.40.090 (Parking Standards for
Residential Uses) and Section 21.30.110 (Setback Regulations and Exceptions) to allow
the parking/storage of a golf cart within the rear setback abutting an alley. The golf cart
storage is requested to provide access and transportation for an individual with a disability
living in a residence with legal nonconforming parking. There are no physical alterations or
additions proposed to the existing residence or garage as a part of the application.
3. The Property is designated Two-Unit Residential (“RT”) by the General Plan Land Use
Element and is located within the Balboa Island (“R-BI”) Zoning District.
4. The Property is located within the coastal zone. The Coastal Land Use Plan category is
Two Unit Residential (“RT-E”) and it is located within the Balboa Island (“R-BI”) Coastal
Zoning District.
5. The project is exempt from the requirements of a coastal development permit pursuant to
NBMC Subsection 21.52.035(C) because the project would not result in any improvement
to the structure that results in changes in floor area exceeding 10 percent of the existing
floor area or 10 percent of the existing height, parking demand, or change the general level
of activity within the neighborhood.
6. A public hearing was held on July 17, 2018, in the Newport Beach Conference Room (Bay
B – 1st Floor) located at 100 Civic Center Drive, Newport Beach. A notice of time, place
and purpose of the hearing was given in accordance with the NBMC. Evidence, both
written and oral, was presented to, and considered by, the Hearing Officer at this
hearing.
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Hearing Officer Resolution No. ####
Page 2 of 6
04-24-18
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
1. This project is exempt from the California Environmental Quality Act (CEQA) pursuant to
Section 15301 under Class 1 (Existing Facilities) of the CEQA Guidelines, California Code
of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect
on the environment.
2. The project does not involve additions or alterations to an existing duplex.
SECTION 3. REQUIRED FINDINGS.
In accordance with NBMC Subsection 20.52.070(D)(2), the following findings and facts in
support of such findings are set forth:
Finding:
A. The requested accommodation is requested by or on behalf of one or more individuals wi th
a disability protected under the Fair Housing Laws.
Fact in Support of Finding:
A letter from Carey L. O’Bryan IV, M.D., F.A.C.C., has been submitted by the
applicant supporting this claim and the need for convenient access to transportation
for the resident. The statement indicates that the resident is able to walk short
distances and to drive, but is unable to walk long distances.
Finding:
B. The requested accommodation is necessary to provide one or more individuals with a
disability an equal opportunity to use and enjoy a dwelling.
Facts in Support of Finding:
1. The existing duplex is legal nonconforming with a two -car garage to accommodate
both residential units. Each unit is provided with one parking space. The parking
requirement for two-unit dwellings pursuant to NBMC Section 20.40.040 (Off -Street
Parking Spaces Required) and NBMC Section 21.40.040 (Off -Street Parking Spaces
Required) is two per unit; one in a garage and one covered or in a garage.
2. The applicant has access to one parking space in the existing garage, which is used
for vehicle parking. The closest on-street parking is located approximately 170 feet
away on Marine Avenue, which is impacted with a combination of resident, visitor
and commercial parking resulting in available parking spaces often being farther
away than 170 feet. Because of difficulty walking long distances, a second onsite
vehicle parking spot is necessary for the applicant to access their vehicle (golf cart)
and stores and services in the surrounding community. There is no other location on
the property available to the applicant for golf cart parking/storage.
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Hearing Officer Resolution No. ####
Page 3 of 6
04-24-18
3. With consideration of the factors provided by NBMC Subsections 20.52.070(D)(3-4),
the requested reasonable accommodation is ne cessary 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 access transportation
and the surrounding neighborhood, thereby enhancing their qual ity of life. Approval
of the accommodation will not alter the character of the neighborhood, because there
is no addition proposed and therefore no change to design, bulk, or scale of the
development. The use of the rear setback area for storage/parking of a golf cart for
use by the disabled resident will not result in increased traffic and does not interfere
with existing onsite parking.
Finding:
C. 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.
Fact in Support of Finding:
Allowing the parking/storage of a golf cart within a rear setback abutting an alley
would not impose an undue financial or adminis trative burden on the City. There is
no building permit required.
Finding:
D. 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.
Fact in Support of Finding:
The proposed accommodation would not result in any fundamental alterations to the
character and use of the two-unit dwelling or the neighborhood. There is no floor
area addition to the home required for the accommodation and the parking/storage
of the golf cart in the rear setback area. The use of the rear setback area for
storage/parking will not intensify the existing two-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.
Finding:
E. 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.
Fact in Support of Finding:
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Hearing Officer Resolution No. ####
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04-24-18
The rear lot line of the property is abutting North Bay Front Alley, a 15-foot wide alley,
which requires a 5-foot setback to facilitate circulation and vehicle maneuverability
in the alley. The requested golf cart storage/parking is located at the termination of
North Bay Front Alley directly across from a side property line of a single-family
residence at 333 Grand Canal. The residence at 333 Grand Canal has frontage on
two alleys, and does not have vehicle access from North Bay Front Alley. Due to the
requested golf cart parking/storage locations at the termination of the alley and the
lack of a garage across the alley, use of the rear alley setback for golf cart
parking/storage will not interfere with vehicle circulation or maneuverability.
Finding:
F. For housing located in the coastal zone, a request for reasonable accommodation under
this section may be approved by the City if it is con sistent 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. Pursuant to NBMC Subsection 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.
2. Pursuant to NBMC Subsection 21.52.036(C)(1), the project is exempt from the
requirements from a coastal development permit because the project would not result
in any improvement to the structure that results in changes in floor area exceeding 10
percent of the existing floor area or 10 percent of the existing height, parking demand,
or change the general level of activity within the neighborhood..
3. There are no feasible alterations for providing an accommodation at the dwelling that
would provide greater consistency with the Certified Local Coastal Program. Any
modifications necessary to create a golf cart parking/storage space within the
buildable area cannot be accommodated without more significant disruption to the
interior and exterior of the home, including construction cost that may render the
project infeasible. Furthermore, there is no proposed change to the two-unit structure
and therefore no change to the design, bulk, and scale of the existing development.
The development therefore maintains a building envelope consistent with the
existing neighbor character and will not alter or degrade the existing public views or
coastal access.
SECTION 4. DECISION.
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Hearing Officer Resolution No. ####
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04-24-18
NOW, THEREFORE, BE IT RESOLVED:
1. The Hearing Officer of the City of Newport Beach hereby approves Reasonable
Accommodation No. RA2018-002, subject to the conditions set forth in Exhibit A, which is
attached hereto and incorporated by reference.
2. This action shall become final and effective fourteen days following the date this
Resolution was adopted unless within such time an appeal 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 .
PASSED, APPROVED, AND ADOPTED THIS 17th DAY OF JULY, 2018.
_____________________________________
, Hearing Officer
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04-24-18
EXHIBIT “A”
CONDITIONS OF APPROVAL
PLANNING
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 reasonable accommodation shall lapse if the exercise of rights granted by it are
discontinued for at least one hundred eighty (180) consecutive days.
If the person(s) initially occupying the residence vacates or conveys the property for which
the reasonable accommodation was granted, the reasonable accommodation shall cease.
3. The project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
4. 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.
5. 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.
6. This approval shall expire and become void unless exercised within 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.
7. 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 Rooten Reasonable Accommodation including, but not limited to, Reasonable
Accommodation No. RA2018-002 (PA2018-071). This indemnification shall include, but
not be limited to, damages awarded against the City, if any, costs of 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.
15
Attachment No. HO 2
Draft Resolution Denying the Reasonable
Accommodation
16
RESOLUTION NO. HO2018-####
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH DENYING REASONABLE ACCOMODATION
NO. RA2018-002 FOR THE PROPERTY LOCATED AT 1411
NORTH BAY FRONT (PA2018-071)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1. An application was filed by Don Rooten and Joan Rooten, on behalf of Noel G. Watson,
(“Applicant”) requesting approval of a reasonable accommodation, with respect to property
located at 1411 North Bay Front, Newport Beach, California and legally described as Lot
21 and the Easterly Half of Lot 20, Block 14, Section 4 Balboa Island, Tract 102
(“Property”).
2. The Applicant has submitted a reasonable accommodation application requesting relief
from Newport Beach Municipal Code (“NBMC”) Section 20.40.090 (Parking Standards for
Residential Uses) and Section 21.30.110 (Setback Regulations and Exceptions) to allow
the parking/storage of a golf cart within the rear setback abutting an alley. The golf cart
storage is requested to provide access and transportation for an individual with a disability
living in a residence with legal nonconforming parking. There are no physical alterations or
additions proposed to the existing residence or garage as a part of the application.
3. The subject property is designated Two-Unit Residential (“RT”) by the General Plan Land
Use Element and is located within the Balboa Island (“R-BI”) Zoning District.
4. The subject property is located within the coastal zone. The Coastal Land Use Plan
category is Two Unit Residential (“RT-E”) and it is located within the Balboa Island (“R-BI”)
Coastal Zoning District.
5. The project is exempt from the requirements of a coastal development permit pursuant to
NBMC Subsection 21.52.035(C) because the project would not result in any improvement
to the structure that results in changes in floor area exceeding 10 percent of the existing
floor area or 10 percent of the existing height, parking demand, or change the general level
of activity within the neighborhood.
6. A public hearing was held on July 17, 2018 in the Newport Beach Conference Room (Bay
B – 1st Floor) located at 100 Civic Center Drive, Newport Beach. A notice of time, place
and purpose of the hearing was given in accordance with the NBMC. Evidence, both
written and oral, was presented to, and considered by, the Hearing Officer at this
hearing.
SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION.
17
Hearing Officer Resolution No. ####
Page 2 of 2
04-24-18
1. Pursuant to Section 15270 of the California Environmental Quality Act (CEQA)
Guidelines, projects which a public agency rejects or disapproves are not subject to
CEQA review.
SECTION 3. REQUIRED FINDINGS.
In accordance with Subsection 20.52.070(D)(2) of the Newport Beach Municipal Code,
required findings must be made in order to approve the reasonable accommodation. In this
case, the Hearing Officer was unable to make the required findings based upon the following:
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
1. The Hearing Officer of the City of Newport Beach hereby denies Reasonable
Accommodation No. RA2018-002, subject to the conditions set forth in Exhibit A, which is
attached hereto and incorporated by reference.
2. This action shall become final and effective fourteen days following the date this
Resolution was adopted unless within such time an appeal 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 .
PASSED, APPROVED, AND ADOPTED THIS 17th DAY OF JULY, 2018.
_____________________________________
, Hearing Officer
18
Attachment No. HO 3
Physician’s Letter
19
20
Attachment No. HO 4
May 15, 2018 Site Photos
21
22
Attachment No. HO 5
Submitted Site Photos and Plans
23
PA2018-071
24
PA2018-071
25
PA2018-071
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Attachment No. HO 6
Correspondence
28
From: Robert Bates, Esq. <rmblaw1@gmail.com>
Sent: Sunday, July 08, 2018 4:20 PM
To: Jurjis, Seimone
Cc: Ramirez, Gregg; Crager, Chelsea; Harp, Aaron
Subject: Opposition Letter with Exhibits to Noel Watson's 3/22/18 Planning
Permit Application for a Request for Accommodation at 1411 N. Bay
Front, Balboa Island, Re. Golf Cart Stored on back Alley Setback
Attachments: 2-car Residence Garage at 1411 N. Bay Front with Rooten SUV and Golf
Cart_1.jpg; Rooten Golf Cart on back Setback with another Vehicle for
1411 N. Bay Front .png; Opposition to PA2018-071, RA2018-002.pdf;
Email String Re. 2.7.18 Email to City Code Enforcement & Parking
Control & Mr. Watson.pdf; Donald Rooten Riding Pink Bike.mp4;
Donald Rooten Walking with Heavy Box.mp4; Donald Rooten Walking
with Garbage Bag and Garbage Can_1.mp4; 4.24.18 Superior Court
Hearing, Bates vs. Rooten Trascript Pages.pdf; Court Docket, Re. Bates
vs. Rooten.pdf
Dear Mr. Jurjis,
I have attached Robert Bates opposition with exhibits in support thereof to the above captioned application.
As we discussed during our telephone call I will appear to speak in opposition or respond to questions in regard
to the Opposition Letter on July 17, 2018.
Please note that the other adjacent neighbor to 1411 N. Bay Front, Ms. Lynn Newton, who resides at 1407 N.
Bay Front, who will be 93 in September of this year, is also opposed to the storage of a Golf Cart on the back
setback at 1411 N. Bay Front. Her opposition arises from the fact that when visitors, tenants and workers park
their cars at 1411, the cars backup onto her setback causing her difficulty entering and/or leaving her home. In
fact in the recent past her garage has been blocked by visitors to 1411 N. Bay Front. Therefore, she believes
that permanent utilization of the 1411 setback for Mr. Rooten will cause others visiting 1411 N. Bay Front to
park on her setback. Due to her age, she may or may not be able to speak on the 17th. However, I believe
that she plans on writing an opposition letter tomorrow for your consideration on the 17th.
Most Sincerely,
Robert M. Bates
The Law Office Of Robert M. Bates
P.O. Box 25-B
Newport Beach, California 92662
Telephone: (949) 278-4838
Facsimile: (949) 673-7392
E-Mail: rmblaw1@gmail.com
CONFIDENTIALITY NOTICE: This electronic transmission may contain confidential
information that is legally privileged. Do not read this transmission if you are not the intended
29
recipient. This electronic transmission, and any documents, files or previous messages attached
to it may contain confidential information that is legally privileged. If you are not the intended
recipient, or a person responsible for delivering it to the intended recipient, you are hereby
notified that any disclosure, copying, distribution or use of any of the information contained in or
attached to this transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by reply e-mail or by telephone at (949) 278-
4838. You are requested to delete the original transmission and its attachments without reading,
retaining, copying or saving such in any manner. Your cooperation is greatly appreciated.
IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations governing
tax practice, you are hereby advised that any written tax advice contained herein was not written
or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties
that may be imposed under the U.S. Internal Revenue Code.
30
2-car Residence Garage at 1411 N. Bay Front with Rooten SUV and Golf Cart_1.jpg
31
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35
36
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38
July 07, 2018
SENT VIA EMAIL
Mr. Seimone Jurjis, P.E., C.B.O.
Community Development Department
Community Development Director
100 Civic Center Drive, First Floor Bay, B
Newport Beach, CA 92660
Email Address:sjurjis@newportbeachca.gov
Re: Opposition to Noel Watson’s Request for Reasonable Accommodation
at 1411 N. Bayfront, Balboa Island, CA: (PA2018-071; RA2018-002)
Dear Mr. Jurjis, Mr. Ramizez, and Ms. Crager:
Introduction
My name is Robert Bates, I am a California employment attorney whose practice focuses
on discrimination law including but not limited to disability discrimination.
I own 333 Grand Canal a property adjacent to 1411 and 1411½ North Bay Front which is
owned by the Watson Family Trust, Noel Watson, Trustee, who is a Nevada resident (“Mr.
Watson”). An alley separates our properties. The alley is 15’ in width.
An application for Reasonable Accommodation ("RA)" has been filed by Noel Watson
for 1411 N. Bay Front; it should be denied because the application contains numerous
misrepresentations. Specifically, at number 2 “… “partial use of his right leg”; number 4 “…
golf cart is used to get around the island”; “will not be able to use golf cart if it has to be parked
on a street because there are not streets close by”; and a map of the two and three hundred
blocks close to the Grand Canal and North Bay stating “no overnight street parking close by”
Mr. Watson signed the application for RA on March 22, 2018 under “penalty of perjury”
which was prepared by Mrs. Rooten, his tenant.
I spoke to Mr. Watson on July 6, 2018 and again on July 7, 2018 about the RA. Mr.
Watson told me that he has no plans to attend the July 17, 2018 hearing. Although Mr. Watson
resides in Nevada, for many years he has owned and rented numerous homes both on the North
Bay and the South Bay Balboa Island and is frequently on Balboa Island.
39
Page 2 of 6
Letter to Mr. Jurjis, Mr. Ramizez, and Ms. Crager
July 07, 2018
Mr. Watson told me on July 07, 2018 that he signed the application prepared by Mrs.
Rooten. Mr. Watson further stated that he knew that Mr. Rooten walks around the Big Balboa
Island and is able to do so; he told me that he knows Mr. Rooten rides his bike frequently on
Balboa Island; and he knows that there is overnight parking nearby on Onyx Avenue.
Notwithstanding those statements, he signed the RA under “penalty of perjury”.
The RA, prepared by Mrs. Rooten, further states "my husband has a limp and partial use
of his right leg. He can drive but is difficult to walk long distances..." The RA also contained an
aerial photo of the streets on Balboa Island with Mrs. Rooten handwritten note below the photo
"No overnight street parking close by".
Incredulously, Mr. Watson seeks an accommodation for a tenant who on the one hand
can frequently walk around big Balboa Island without assistance for exercise (emphasis added)
but on the other hand cannot walk a block or two from 1411 North Bay Front to the 300 block of
Onyx Avenue. Interestingly, Mr. Watson avers at Paragraph 2 of the RA that Donald Rooten
requires an accommodation by parking/storing a golf cart in the 1411 North Bay Front back
setback on the alley because Mr. Rooten cannot walk a distance of a 2-blocks to retrieve his cart
from the 300 block of Onyx Avenue. Here, the request is based upon a material
misrepresentation in Paragraph 2 because Mr. Rooten has use of his right leg to the extent that
he can take frequent exercise walks around both the big and the little Balboa Island (Emphasis
Added). (See Attached).
Additionally, Mr. Watson failed to explain in Paragraph 2 of the RA that the Rooten
family car is parked in the garage at 1411 N. Bayfront and that Mr. Rooten uses this car to “ …
get around the island”. Therefore, any accommodation, if actually needed by Mr. Rooten, has
already been provided by Mr. Watson by permitting Mr. Rooten to park his family car in the
garage appurtenant to his living quarters at 1411 N. Bay Front. (See Attached).
Accordingly, Mr. Watson does not need any Reasonable Accommodation for Mr.
Rooten.
Factual Background
The Rootens rented 1411 North Bayfront about 10 months ago. There are two separate
units on this property. The two units share a detached 2-car garage -1411 has one parking space
in this garage and 1411 1/2 has one parking space in garage. (See Attached)
The Rootens have access to one assigned parking space where the y currently park an
SUV. The SUV could be parked on the street and the golf cart could be placed in the assigned
parking space if they chose to do so. (See Attached).
The Rootens rented the property knowing that 1411 N. Bay Front had only one parking
space in the residence garage. Thereafter, they obtained a cart and stored it at all times in the
back setback of the property in violation of NBMC 20.40.090 (C)(3)(d) during the period
October 2017 to at least February 07, 2018 with approval of the owner Mr. Watson.
40
Page 3 of 6
Letter to Mr. Jurjis, Mr. Ramizez, and Ms. Crager
July 07, 2018
During this time, I personally observed that Mrs. Rooten drove the cart approximately
95% of the time. Moreover, when the Rootens had their cart unlawfully stored on the setback,
they often gathered around the cart with friends on the alley setback late in the evening and
made unreasonable noise by talking loudly. Mr. Watson’s photos attached to the RA,
demonstrate that the stored cart would be a mere 15-feet from my house which essentially has a
zero setback. My living room and kitchen front the entire alley.
On its face 15-feet might seem a reasonable distance, however, with the cart stored on the
setback, it forces other cars associated with this duplex to park up against my house sometimes
within a foot of my house. In fact, when the cart was previously unlawfully stored on the alley
setback, the Rootens would often park their SUV next to the cart within feet of my living room
causing further noise and disruption while unloading or otherwise.
The alley is designated for active loading and unloading only, however, that does not
deter parking violators from often parking in the alley as though it is a parking lot – allowing the
violator to walk to Marine Avenue for Mexican food at Picante or a donut at Dads. Illegal
parking in this alley has been so extreme that the City of Newport Beach recently installed a
“No Parking” sign on the yellow post dividing the alley from the sidewalk. Frankly, permitting
the cart to be stored on the setback will vitiate the City’s recent attempt to discourage illegal
parking in this alley as other individuals will see the stored cart parked on the setback and see it
as a “me too” for parking in the alley. (See Attached).
On February 7, 208 I sent an email to Mr. Watson with a courtesy copy to John Murray,
City Code Enforcement, and Heidi Moss, parking supervisor, stating my complaint about illegal
storage of the cart on the alley setback. (See Attached).
Subsequently, the City required Mr. Watson to move the cart off of the setback. The
Rootens moved the cart into the second garage parking space at the residence which is reserved
for the tenants at 1411 ½ North Bayfront (currently vacant but will be occupied by mid-July).
(See Attached).
As a result of my email, and the City’s involvement, Mr. Rooten became angry and
forcefully entered my home without permission on March 28, 2018 at 4:00 p.m. Mr. Rooten
vandalized my home by ripping my security camera notice sign from my home and throwing it
in a nearby garbage can in the alley. After unlawfully entering my home, Mr. Rooten charged
me, grabbed me so that I could not move and squeezed my arm/body so tightly that he caused
bruising to my body. While he was holding me Mr. Rooten was screaming vile obscenities at
me. Mr. Rooten threatened if the parking issue continued he would show me “what real pain
feels like”. Notwithstanding the medical note submitted to the City by Mr. Rooten, in my
opinion it would be impossible for a man who purportedly has “… partial use of his right leg” to
assault a man who is 6' 2", weighs 190 lbs. and is at least 5-years younger than him. A copy of
the Police Report and Civil Harassment Claim are available upon request.
41
Page 4 of 6
Letter to Mr. Jurjis, Mr. Ramizez, and Ms. Crager
July 07, 2018
The Honorable Michael McCartin of the Orange County Superior Court, Harbor Justice
Center, issued a Temporary Restraining Order against Mr. Rooten for my protection on April 2,
2018 in Case No. 30-2018-00982961. The matter is currently pending with a hearing date set
for July 24, 2018. (See Attached)
In the initial hearing in Case No. 30-2018-00982961 on April 24, 2018, Mr. Rooten
admitted to the Court that he unlawfully entered my home and perpetrated assault and battery
because he was angry about the parking situation at 1411 N. Bayfront and held me responsible
(See Attached).
Requirement for Reasonable Accommodation-Findings and Decision
Per the Newport Beach Zoning Code 20.66.040 (D)(2)(a)(1)(2), the City must consider
the following in granting an RA:
1. The RA is requested on behalf of an individual with a disability protected under Fair
Housing Laws.
Here, Mrs. Rooten indicates that her husband has a limp and partial use of his right leg
and that two blocks is too far to walk to get the golf cart. The closest street is Onyx Avenue,
which is less than two blocks. I have personally observed and will testify that I have observed
Mr. and Mrs. Rooten walking the Big Balboa Island (approx. 2 miles in length) in the mornings
and I have personally observed Mr. and Mrs. Rooten walking the Little Balboa Island (approx. 1
mile in length). I have personally observed and will testify that I have seen Mr. Rooten riding a
bicycle frequently. I have seen Mr. Rooten walking in the alley constantly, carrying heaving
items such as a case of beer, propane tanks, heavy cardboard boxes, and other things. (See
Attached).
Mr. Watson told me on July 6, 2018 that he knows Mr. Rooten walks around Balboa Island
and that Mr. Rooten rides a bicycle on Balboa Island.
Based upon Mr. Watson’s July 6, 2018 statement the Hearing Officer must conclude that
the assertions made in the RA at paragraphs 2, 4, and 6 in support of the request for RA are false
and in my opinion a fraud upon the City. Moreover, the medical note provided by Mr. Rooten
must be assigned little weight in this matter as Mr. Rooten’s own actions vitiate any conclusions
drawn from the medical note (California constitutional privacy has prevented use of the medical
note in this Opposition).
Alternatively, if the City believes that Mr. Rooten has a disability that requires an
accommodation because he cannot walk a block or two to retrieve the cart, then the City should
Order Mr. Watson to permit Mr. Rooten to park his golf cart in the second space in the
residence 2-car garage. Such an Order would permit both the City and Mr. Watson to fulfill
their respective duties, if any, to Mr. Rooten under the Fair Employment and Housing Act.
42
Page 5 of 6
Letter to Mr. Jurjis, Mr. Ramizez, and Ms. Crager
July 07, 2018
2. The requested RA is necessary to provide one or more individuals with a disability an
equal opportunity to use and enjoy a dwelling.
Here, a dwelling is generally defined as “the structure” and not a back setback of a
property. Even if the City interprets the statute broadly to mean a back setback is a dwelling, this
factor must also fail.
The statute in relevant part requires "An equal opportunity to enjoy a dwelling" - this is a
two family dwelling, a front house occupied by the Rootens at 1411, and a back house at 1411 ½
soon to be occupied by new tenants. Each house is entitled to one parking space in a shared two-
car garage. Accordingly, neither tenant is entitled to park or store items, carts or otherwise on
the back setback in contravention of zoning code. Each tenant has equal opportunity to share a
garage, and they each have equal opportunity to park additional cars or carts on a public street in
compliance with the law. The Rootens knew they entered into a lease with one parking space in
a shared garage. Subsequently, they obtained the golf cart and initially began unlawfully storing
it on the back setback. The remedy should be that the Rootens negotiate with their landlord Mr.
Watson for the additional garage parking. The nuisance should not be exported to the adjacent
neighbors, with cars being forced up against 333 Grand Canal or 1407 N. Bay Front due to the
cart being stored on the setback. The City should not be used as an instrument for tenants to gain
additional parking. The “spirit” of the California Fair Employment and Housing Act should not
be abused. There are people with disabilities that rely upon this for valid accommodation. Here,
a misrepresentation has been made to the City. Under this factor, Mr. Rooten has equal
opportunity to use and enjoy this dwelling. He is seeking “superior” opportunity and it should be
denied.
5. The RA will not result in a direct threat to the health or safety of other individuals or
substantial physical damage to the property of others.
Here, storage of the Rooten golf cart on the setback will force cars up against 333 Grand
Canal and 1407 N. Bay Front as previously explained above due to cars unloading or attempting
to park illegally (which there are many) interfering with the adjacent owner’s property rights of
unfettered access and unfettered use of their respective properties. Further to this point, 333
Grand Canal exit door opens out into the alley (a 1926 property) and therefore storage of the
Rooten golf cart will negatively and improperly impact the health and safety of the owners and
guests of 333 Grand Canal when the alley door for ingress or egress is used, e.g., it is
much more likely that a pedestrian will be hit by a car because the driver will access the alley on
the right side instead of driving to the center of the alley. (Please Attached).
Requirement for Reasonable Accommodation-Findings and Decision
Per the Newport Beach Zoning Code 20.66.040 (D)(4)(a)(b), the City must consider the
following in granting an RA:
43
Page 6 of 6
Letter to Mr. Jurjis, Mr. Ramizez, and Ms. Crager
July 07, 2018
a. Whether the RA would fundamentally alter the character of the neighborhood.
As explained above, despite the fact that only active loading and unloading is permitted in
this alley, cars are illegally parked all the time. Please see parking enforcement reports for1411
N. Bayfront. Allowing this “superior” reasonable accommodation to Mr. Watson for Mr. Rooten
will cause a private nuisance to both 333 Grand Canal and 1407 North Bay Front because it will
cause all cars accessing the alley to park away from 1411’s setback and toward 333 Grand Canal
which has a zero lot line.
b. Whether the accommodation would result in a substantial increase in traffic or
insufficient parking.
As explained above, storage of the Rooten golf cart in the setback will push the traffic and
illegal parking away from 1411N. Bayfront and onto 333 Grand Canal, a property with a virtual
zero lot line property. (See Attached).
Conclusion
It is my contention that if the City applies the applicable factors described above, as well
as questions Mr. Watson as to his misrepresentations in RA paragraphs 2, 4, and 6, the City
should find that RA fails on the relevant factors used to determine if a reasonable
accommodation should be granted.
Moreover, the City should question the physician who wrote the medical note in support of
Mr. Watson’s RA to determine the following: Why Mr. Rooten is able to walk 2 -miles around
the Big Balboa Island for exercise on the one-hand and then is not able to walk 1 to 2 blocks to
retrieve his cart on the other hand.
A reasonable and fair conclusion is that Mr. Rooten currently has equal access to parking
as does the other tenant at 1411 and 1411 ½ N. Bay Front. What Mr. Rooten is seeking is
“superior” access, not equal access, to additional parking at 1411 N. Bay Front, notwithstanding
the fact that he owns an SUV garaged at 1411 N. Bay Front which he uses to “get around the
Island”
Request is hereby made that the City consider this Opposition before writing its “Staff
Report” and include this Opposition with Opposition attached exhibits in the “Staff Report” to
the Hearing Officer and that the Hearing Officer Deny Mr. Watson’s RA.
Most Sincerely,
Robert Michael Bates
Owner
333 Grand Canal
Newport Beach, CA 92662
RMB/av.
44
Rooten Golf Cart on back Setback with another Vehicle for 1411 N. Bay Front .png
45
From: Robert Bates, Esq. <rmblaw1@gmail.com>
Sent: Monday, July 09, 2018 10:43 AM
To: Jurjis, Seimone
Cc: Ramirez, Gregg; Crager, Chelsea; Harp, Aaron
Subject: Re: Opposition Letter with Exhibits to Noel Watson's 3/22/18 Planning
Permit Application for a Request for Accommodation at 1411 N. Bay
Front, Balboa Island, Re. Golf Cart Stored on back Alley Setback
Attachments: Lynn Newton, 1407 N. Bay Front, Opposition to Noel Watson's Request
for a Reasonable Golf Cart Accommodation at 1411 N. Bay Front.pdf
Mr. Jurjis,
Thank your for your reply email.
The 92 year old neighbor that I spoke of in my prior email wrote the attached letter and asked me
to send it to you (she is not set up to send it herself).
If you wish to ask her questions or authenticate her letter her home phone number is (949) 673-
6204. If you do call her please let the phone ring a little while as it takes
her longer than normal to get to her phone to answer due to her walking disability.
Most Sincerely,
Robert Bates
On Mon, Jul 9, 2018 at 7:35 AM, Jurjis, Seimone <sjurjis@newportbeachca.gov> wrote:
Good Morning Mr. Bates
Thank you for the information you provided. We will ensure it is provided to the hearing officer for
consideration.
Thank you
SEIMONE JURJIS, P.E., C.B.O.
Community Development Department
46
Community Development Director
sjurjis@newportbeachca.gov
949-644-3282
From: Robert Bates, Esq. [mailto:rmblaw1@gmail.com]
Sent: Sunday, July 8, 2018 4:20 PM
To: Jurjis, Seimone <sjurjis@newportbeachca.gov>
Cc: Ramirez, Gregg <GRamirez@newportbeachca.gov>; Crager, Chelsea
<ccrager@newportbeachca.gov>; Harp, Aaron <aharp@newportbeachca.gov>
Subject: Opposition Letter with Exhibits to Noel Watson's 3/22/18 Planning Permit Application for a
Request for Accommodation at 1411 N. Bay Front, Balboa Island, Re. Golf Cart Stored on back Alley
Setback
Dear Mr. Jurjis,
I have attached Robert Bates opposition with exhibits in support thereof to the above captioned application.
As we discussed during our telephone call I will appear to speak in opposition or respond to questions in
regard to the Opposition Letter on July 17, 2018.
Please note that the other adjacent neighbor to 1411 N. Bay Front, Ms. Lynn Newton, who resides at 1407 N.
Bay Front, who will be 93 in September of this year, is also opposed to the storage of a Golf Cart on the back
setback at 1411 N. Bay Front. Her opposition arises from the fact that when visitors, tenants and workers
park their cars at 1411, the cars backup onto her setback causing her difficulty entering and/or leaving her
home. In fact in the recent past her garage has been blocked by visitors to 1411 N. Bay Front. Therefore,
she believes that permanent utilization of the 1411 setback for Mr. Rooten will cause others visiting 1411 N.
Bay Front to park on her setback. Due to her age, she may or may not be able to speak on the
17th. However, I believe that she plans on writing an opposition letter tomorrow for your consideration on the
17th.
Most Sincerely,
Robert M. Bates
47
The Law Office Of Robert M. Bates
P.O. Box 25-B
Newport Beach, California 92662
Telephone: (949) 278-4838
Facsimile: (949) 673-7392
E-Mail: rmblaw1@gmail.com
CONFIDENTIALITY NOTICE: This electronic transmission may contain confidential
information that is legally privileged. Do not read this transmission if you are not the intended
recipient. This electronic transmission, and any documents, files or previous messages attached
to it may contain confidential information that is legally privileged. If you are not the intended
recipient, or a person responsible for delivering it to the intended recipient, you are hereby
notified that any disclosure, copying, distribution or use of any of the information contained in
or attached to this transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by reply e-mail or by telephone at (949)
278-4838. You are requested to delete the original transmission and its attachments without
reading, retaining, copying or saving such in any manner. Your cooperation is greatly
appreciated.
IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations governing
tax practice, you are hereby advised that any written tax advice contained herein was not written
or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding
penalties that may be imposed under the U.S. Internal Revenue Code.
--
Most Sincerely,
Robert M. Bates
The Law Office Of Robert M. Bates
P.O. Box 25-B
Newport Beach, California 92662
Telephone: (949) 278-4838
Facsimile: (949) 673-7392
E-Mail: rmblaw1@gmail.com
CONFIDENTIALITY NOTICE: This electronic transmission may contain confidential
48
information that is legally privileged. Do not read this transmission if you are not the intended
recipient. This electronic transmission, and any documents, files or previous messages attached
to it may contain confidential information that is legally privileged. If you are not the intended
recipient, or a person responsible for delivering it to the intended recipient, you are hereby
notified that any disclosure, copying, distribution or use of any of the information contained in or
attached to this transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by reply e-mail or by telephone at (949) 278-
4838. You are requested to delete the original transmission and its attachments without reading,
retaining, copying or saving such in any manner. Your cooperation is greatly appreciated.
IRS CIRCULAR 230 DISCLOSURE: As required by U.S. Treasury Regulations governing
tax practice, you are hereby advised that any written tax advice contained herein was not written
or intended to be used (and cannot be used) by any taxpayer for the purpose of avoiding penalties
that may be imposed under the U.S. Internal Revenue Code.
49
50
51
52
53
From: Robert Bates <rmblaw1@gmail.com>
Sent: Tuesday, July 10, 2018 7:47 AM
To: Jurjis, Seimone
Cc: Crager, Chelsea; Ramirez, Gregg
Subject: 1411 N Bay Front Request for Golf Cart Accommodation for Don
Rooten
Attachments: 1531184553.mp4
Mr. Jurjis,
The attached short video is my final submission in respect to the 7/17/18 Hearing.
This video shows Mr. Rooten last evening walking comfortably (with a slight limp) from his home on the N. Bay
(1411) to the N. Bay Front Alley on his way to Marine to pick up food at Shanghai Pine Gardens at 300
Marine. Please note his round trip for "to go" diner from his home on the N Bay Front would be at least 3-blocks
(this is a greater distance than he would have to walk to Onyx to retrieve his cart).
Most Sincerely,
Robert M. Bates
54
1
To:HEARING OFFICER - July 17, 2018
Subject:Additional Materials Received
Item No. 1a: Additional Materials Received
Rooten Golf Cart Parking Reasonable Accommodation (PA2018-071)
‐‐‐‐‐Original Message‐‐‐‐‐
From: Crager, Chelsea
Sent: Wednesday, July 11, 2018 1:51 PM
To: Garciamay, Ruby <RGarciamay@newportbeachca.gov>; Achis, Patrick <PAchis@newportbeachca.gov>
Subject: FW: Report
Hi,
Can you please include this as additional materials for the reasonable accommodation? This is the applicant's response
to the submitted comments.
CHELSEA CRAGER
Associate Planner
Community Development Department | Planning Division ccrager@newportbeachca.gov
949‐644‐3227
CITY OF NEWPORT BEACH
100 Civic Center Drive, Newport Beach, California 92660 | newportbeachca.gov
‐‐‐‐‐Original Message‐‐‐‐‐
From: Rooten Joan [mailto:jrooten@gmail.com]
Sent: Wednesday, July 11, 2018 11:16 AM
To: Crager, Chelsea <ccrager@newportbeachca.gov>
Cc: cazzell@msn.com
Subject: Report
Good morning Chelsea.
As Don and I read the report and correspondence from Mr. Bates and the 92 year old neighbor, Lynn Newton, we were
surprised by a few lies that were stated.
1, A temporary restraining order was NOT issued and the judge continued the action for 3 months until July 24.
2, As long as we’ve lived here, there has never been anyone parked behind Ms. Newton’s house except her own family.
If there was, Mr. Bates would have sent you a picture of it as he has cameras pointed in our direction and her direction
at all times!
3,Don uses the golf cart often and unless Mr. Bates has nothing to do but watch the alley all day, he has no idea. He is
lying!
2
4, Don finds it very difficult to walk for more than a couple of blocks, (not around the island)and Mr. Bates has no
medical training or stoke experience to judge Don’s condition. In fact no one does! Every stroke victim’s long term
effects are different and as a supporter and caretaker, I .wouldn’t wish the condition on anyone!
5) Don rides his bike as recommended to strengthen his muscles in his legs.
Sincerely, Joan Rooten
1
To:HEARING OFFICER - July 17, 2018
Subject:Additional Materials Received
Item No. 1b: Additional Materials Received
Rooten Golf Cart Parking Reasonable Accommodation (PA2018-071)
‐‐‐‐‐Original Message‐‐‐‐‐
From: Crager, Chelsea
Sent: Wednesday, July 11, 2018 2:43 PM
To: Garciamay, Ruby <RGarciamay@newportbeachca.gov>; Achis, Patrick <PAchis@newportbeachca.gov>
Subject: FW: Report
Hi Ruby and Patrick,
This is another email sent by the applicant in response to comments. Please include as additional materials.
Thanks!
CHELSEA CRAGER
Associate Planner
Community Development Department | Planning Division ccrager@newportbeachca.gov
949‐644‐3227
CITY OF NEWPORT BEACH
100 Civic Center Drive, Newport Beach, California 92660 | newportbeachca.gov
‐‐‐‐‐Original Message‐‐‐‐‐
From: Rooten Joan [mailto:jrooten@gmail.com]
Sent: Wednesday, July 11, 2018 2:42 PM
To: Crager, Chelsea <ccrager@newportbeachca.gov>
Subject: Report
As I’m thinking today. #6 to the list. As far as needing the car and the golf cart, Don drives our car off the island to appts.,
and daily life. The golf cart is used here. He has a valid driver’s after completing the very tough “after stroke” course and
testing required by the DMV for stroke victims. Driving large cars and parking on the island is a challenge for anyone
without a garage. Don chose not to get a handicap placard because he can walk short distances and most every building
is coded for handicap.
Sent from my iPad
1
To:HEARING OFFICER - July 17, 2018
Subject:Additional Materials Received
Item No. 1c: Additional Materials Received
Rooten Golf Cart Parking Reasonable Accommodation (PA2018-071)
From: Crager, Chelsea
Sent: Friday, July 13, 2018 10:43 AM
To: Garciamay, Ruby <RGarciamay@newportbeachca.gov>
Cc: Achis, Patrick <PAchis@newportbeachca.gov>
Subject: FW: Rooten Request for Accommodation
Hi,
These are additional materials for the hearing officer
From: Robert Bates [mailto:rmblaw1@gmail.com]
Sent: Friday, July 13, 2018 10:39 AM
To: Crager, Chelsea <ccrager@newportbeachca.gov>
Cc: Jurjis, Seimone <sjurjis@newportbeachca.gov>
Subject: Rooten Request for Accommodation
Ms. Crager,
The previous photo I sent to you for consideration of Mr Rooten's Equal Access to the 2-car garage at 1411 N Bay Front was not a
good photo. Accordingly I have attached 4-photos to this email demonstrating that Mr. Watson (property owner) has already provided
Equal Access for Mr Rooten by providing him with a garage parking space for his SUV at the residence and a garage parking space
for his golf cart in the 2nd garage parking space.
These photos show him unloading his car and placing water & paper towels on the garaged golf cart today.
Thank You for your consideration,
Robert Bates
Hearing Officer - July 17, 2018
Additional Materials Received
From:Crager, ChelseaTo:Garciamay, RubyCc:Achis, PatrickSubject:FW: Rooten Request for AccommodationDate:Friday, July 13, 2018 10:43:31 AMAttachments:image001.pngHi,These are additional materials for the hearing officer CHELSEA CRAGERAssociate PlannerCommunity Development Department | Planning Divisionccrager@newportbeachca.gov949-644-3227 CITY OF NEWPORT BEACH100 Civic Center Drive, Newport Beach, California 92660 | newportbeachca.gov From: Robert Bates [mailto:rmblaw1@gmail.com] Sent: Friday, July 13, 2018 10:39 AMTo: Crager, Chelsea <ccrager@newportbeachca.gov>Cc: Jurjis, Seimone <sjurjis@newportbeachca.gov>Subject: Rooten Request for Accommodation Ms. Crager,The previous photo I sent to you for consideration of Mr Rooten's Equal Access to the 2-car garage at 1411 N Bay Front was not a good photo. Accordingly I have attached 4-photos to this email demonstrating that Mr. Watson (property owner) has already provided Equal Access for Mr Rooten by providing him with a garage parking space for his SUV at the residence and a garage parking space for his golf cart in the 2nd garage parking space.These photos show him unloading his car and placing water & paper towels on the garaged golf cart today.Thank You for your consideration,Robert BatesHearing Officer - July 17, 2018 Additional Materials Received
Hearing Officer - July 17, 2018 Additional Materials Received
Hearing Officer - July 17, 2018 Additional Materials Received
Hearing Officer - July 17, 2018 Additional Materials Received
1
To:HEARING OFFICER - July 17, 2018
Subject:Additional Materials Received
Item No. 1d: Additional Materials Received
Rooten Golf Cart Reasonable Accommodation (PA2018‐071)
‐‐‐‐‐Original Message‐‐‐‐‐
From: Crager, Chelsea
Sent: Monday, July 16, 2018 7:46 AM
To: Garciamay, Ruby <RGarciamay@newportbeachca.gov>; Achis, Patrick <PAchis@newportbeachca.gov>
Subject: FW: Joan and Don Rooten Golf cart parking application
Good morning,
This is additional materials for tomorrow's hearing officer meeting.
Thanks,
CHELSEA CRAGER
Associate Planner
Community Development Department | Planning Division ccrager@newportbeachca.gov
949‐644‐3227
CITY OF NEWPORT BEACH
100 Civic Center Drive, Newport Beach, California 92660 | newportbeachca.gov
‐‐‐‐‐Original Message‐‐‐‐‐
From: Basil Witt [mailto:basilwitt@gmail.com]
Sent: Saturday, July 14, 2018 4:51 PM
To: Crager, Chelsea <ccrager@newportbeachca.gov>
Subject: Joan and Don Rooten Golf cart parking application
To whom concerned: I own a home at 1403 S Bayfront, three doors west of the Rooten’s. I understand Mr. Bates is up
to his routine of being a total aggravation to his neighbors.
Don is medically justified to request a parking exemption for his golf cart which does not interfere with Mr Bates home
or surrounding area. I am 80 years old and also ride a bicycle for cardiovascular exercise which my cardiologist
encouraged me to do. The fact Don rides a bike should have absolutely no bearing on his parking application.
Unfortunately Mr. Bates seems intent on interfering once again with his neighbors by creating unnecessary conflict. I
encourage you to review the facts of the application on its merit. Respectfully, Basil G. Witt
Sent from my iPhone
1
CAZZELL & ASSOCIATES, ATTORNEYS
406 W. Fourth Street
Santa Ana, CA 92701
(714) 558-1772 tel.
(714) 558-1883 fax.
cazzell@msn.com
July 16, 2018
TO: THE CITY OF NEWPORT BEACH
CHELSEA CRAGER, Associate Planner
JIM CAMPBELL, Deputy Community Dev’t Director
SEIMONE JURJIS, Community Development Dept.
GREGG RAMIREZ
AARON HARP
Sent via electronic mail only to ccrager@newport beachca.gov;
jcampbell@newportbeachca.gov;
sjurjis@newportbeachca.gov;
gramirez@newportbeachca.gov; and
aharp@newportbeachca.gov
RE: REQUEST FOR REASONABLE ACCOMMODATION (“RRA”)
Golf Cart Parking (PA 2018-071); RRA #RA2018-02
Submitted by: DON and JOAN ROOTEN (the “ROOTENS”)
Property Address: 1411 North Bay Front, Newport Beach (“the Property”)
Planner: CHELSEA CRAGER
Hearing Date and Time: July 17, 2018, 1:00 p.m.
Agenda Item No.: One
Dear Gentlepersons:
Please be advised that this office represents the ROOTENS in the
furtherance of the above-referenced RRA.
Hearing Officer - July 17, 2018
Additional Materials Received
Item No. 1e: Additional Materials Received
Rooten Golf Cart Parking Reasonable Accommodation (PA2018-071)
2
As you know, the RRA seeks relief from precise compliance with Newport
Beach Municipal Code (“NBMC”) sections 20.40.490, 20.30.110, and
21.30.110 (related to parking rules and setback regulations,) so that Don
Rooten, a recovering stroke victim who cannot regularly walk long distances
to and from his home after having parked on a distant side street, may park
his golf cart within the five-foot setback of the Property so that he can have
reasonable access to motorized transport. The Property is part of a duplex
that shares a two-car garage. The Property is therefore (legally) non-
conforming in that it only includes a single-car garage, thus exacerbating the
need for one small additional parking space. Noel B. Watson, the Property’s
owner, supports the RRA.
The issue for consideration is straightforward, and is described succinctly in
the “PROJECT SUMMARY” on page one of the HEARING OFFICER
STAFF REPORT concerning the RRA (“STAFF REPORT,”) incorporated
herein. In short, the question is, does the RRA meet the qualifications of
Section 20.52.070(D)(2) of the NBMC? As correctly analyzed in the
STAFF REPORT, the answer is “YES,” and the RRA should be granted.
That statute sets forth five requirements for approval of the RRA, all of
which are met here:
i.The requested accommodation is made by Don Rooten, who has a
disability protected under the Fair Housing Laws that prevents him from
regularly walking long distances, which disability and need for the RRA has
been verified in writing by his Cardiologist.
ii.The accommodation is necessary in order for Don Rooten to have an
equal opportunity to use and enjoy his home by being able to travel to and
from it, and being able to get around the Island, without the threat of harm
that might result from overtaxing his disability.
iii.The accommodation will impose no financial or administrative burden
on the City whatsoever (except to the extent that a challenge by a neighbor
has perhaps increased the administrative work. But since a hearing is
required, such increase is not “undue” within the meaning of the statute.)
Hearing Officer - July 17, 2018
Additional Materials Received
3
iv.The accommodation will not result in any fundamental alteration in the
nature of the City’s zoning. The RRA is a sort of variance request that is
peculiar to the Property and its occupants. Granting it will not change the
zoning at all.
v.The accommodation will not under these specific facts, directly threaten
the health or safety of other people, or increase the threat of substantial
physical damage to others’ property. The RRA seeks a very limited
accommodation to allow the parking of a single golf cart completely within
the Property’s setback, and not in front of anyone else’s property at all. It
does not even block the Property’s own garage. Further, the setback is
located adjacent to a “dead-end” alley, so that the granting of the RRA could
not possibly impede the flow of any through-traffic.
The inquiry could stop at this point, and the Hearing Officer would have
properly carried out his duties.
However, NBMC Section 20.52.070(D)(3-4) allows but does not require the
consideration of various additional factors to determine whether the
requested accommodation is the minimum necessary to provide (Mr.
Rooten) with an equal opportunity to use and enjoy his home, and whether it
would require a fundamental alteration is a City program.
Assuming that the Hearing Officer opts to consider additional factors, any
objections are also easily overcome. Section 20.52.070(D)(3-4) examines
whether there would be any other less-intrusive way to provide this
accommodation, and whether granting the RRA will substantially undermine
an express purpose of the General Plan. The answer on both counts is a
resounding “NO:” allowing a single golf cart to park in the front part of the
setback is the minimum and most reasonable solution; and the General Plan
will in no way be impacted from the granting of the RRA.
Opposition has been raised by a single neighbor, Mr. Robert Bates, an
attorney representing himself in Pro Per, who resides at 333 Grand Canal;
and a few other hapless neighbors he has persuaded to join his cause.
Hearing Officer - July 17, 2018
Additional Materials Received
4
Mr. Bates has argued that the RRA should be denied as unwarranted. His
arguments are all unreasonable, speculative, and impractical; and run the
gamut from (without limitation:)
1) Instead of granting the ROOTENS’ RRA, the City should order the
unrelated duplex tenants to give up their single-car garage so that the golf
cart can be parked there instead(!);
2) Granting the RRA will impede and back up traffic from other vehicles
illegally parked in the alley;
3) Don Rooten isn’t truly disabled because he can still hobble around and
can ride a bicycle sometimes; and
4) Another neighbor, who at 92 years of age is older, should get her own
RRA granted so that she, too, can park a golf cart outside of her garage!
The evidence and common sense all dictate that these arguments all fail.
Instead, clearly,
1) The other duplex tenants must be allowed at least their single-car garage;
2) There will probably always be parking problems on the Island, that will
not be increased nor decreased by making the parking of a single golf cart on
one’s private property, legal;
3) Don Rooten is indeed disabled and rides a bicycle as physical therapy
upon his Doctor’s orders since it is easier for him to do, than walking; and
4) The comments from another neighbor (who already has a two-car
garage,) that she, too, wants to park a golf cart in her setback, is irrelevant to
the instant hearing.
Should the inquiries go so far, the ROOTENS are prepared to offer the
testimony of several witnesses who will show on balance that Mr. Bates’
Hearing Officer - July 17, 2018
Additional Materials Received
5
Opposition is ill-taken, mean-spirited, falls outside of the purpose and intent
of the RRA inquiries, and is based on a long-term and deep-seated bias
against pretty much all of the residents in the immediate neighborhood.
On this basis it is respectfully requested that the RRA be granted.
The ROOTENS thank the City and the Hearing Officer in advance, for their
assistance in this matter.
Best,
/S/ Maryann Cazzell
MARYANN CAZZELL
MC:sc
cc: Don & Joan Rooten
Noel & Phyllis Watson
Marlys Vasterling
Robert A. Bates, Esq.
All sent via electronic mail only
Hearing Officer - July 17, 2018
Additional Materials Received
1
Sent:Wednesday, July 18, 2018 1:11 PM
To:Crager, Chelsea
Subject:RE: Rooten Golf Cart Parking Reasonable Accommodation No. RA2018-002 - additional
comment
From: Jim Mosher [mailto:jimmosher@yahoo.com]
Sent: Wednesday, July 18, 2018 10:24 AM
To: Crager, Chelsea <ccrager@newportbeachca.gov>
Subject: Rooten Golf Cart Parking Reasonable Accommodation No. RA2018‐002 ‐ additional comment
Ms. Crager,
Please accept this additional comment and forward it to the Hearing Officer for consideration in the
proceedings in "Rooten Golf Cart Parking Reasonable Accommodation No. RA2018-002 (PA2018-
071)":
***
Having refreshed my memory of Newport Beach Municipal Code Section 20.52.070 (Reasonable
Accommodations), I have to agree with Hearing Officer Johnson that it is a poor fit for solving this
particular, and very unfortunate, dispute between neighbors.
As I said in oral comment, I have to suspect there are a great many people in Newport Beach besides
Mr. Rooten who, for a wide variety of medical conditions, including age, are "unable to walk long
distances."
In addition to the bicycle that seems, for the present, to work for Mr. Rooten, there are many
technological solutions to this disability. They include electric scooters that can be folded up small
enough to be easily stored to the side in a garage (in addition to the car), or even in the back of the
car. This is just one of many:
https://www.wheelchairauthority.com/SmartScoot-Foldable-Lightweight-Mobility-Scooter-
p/smartscoot.htm
Since similarly afflicted individuals are able to overcome their disability in that way, the request to
make an exception to the City's prohibition on storage in setbacks (whether or not the regulation is
currently being enforced against others) for a family-sized golf cart does not seem "the minimum
necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy
the residence" (NBMC Sec. 20.52.070.C.4.d).
In addition to not requiring an exception to the City's codes, a mobility scooter would actually provide
the disabled individual with greater similarity to walking and greater flexibility than would the
requested golf cart. For example, a low-profile mobility scooter would eliminate the need to find a
parking space at the destination.
I therefore believe the request should be denied.
Item No. 1f: Additional Materials Received
Rooten Golf Cart Parking Reasonable Accommodation (PA2018-071)
Hearing Officer - July 17, 2018 Additional
Materials Received After Meeting
2
With regard to the proposed Resolution of Denial (Attachment No. HO 2 to the staff report):
* On handwritten page 18, my suggested finding for Section 3 would be something like:
"In this case, the Hearing Officer was unable to make required Finding
20.52.070(D)(2)(a)(ii) based upon the following:
Alternative methods of overcoming the disability are readily available that do not necessitate the
storage of equipment in setback areas. Therefore, the requested accommodation is not
necessary to provide the individual with a disability an equal opportunity to use and enjoy the
dwelling."
* Also on handwritten page 18, in Section 4.1, the following words should be deleted: ", subject to
the conditions set forth in Exhibit A, which is attached hereto and incorporated by
reference." (attaching conditions of approval is not appropriate if the request is being denied)
***
Yours sincerely,
Jim Mosher