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HomeMy WebLinkAbout01_Moore Hedge Height_PA2019-050_combined,wp CITY OF NEWPORT BEACH HEARING OFFICER STAFF REPORT CqG/FOQNP SUBJECT: Moore Hedge Height (PA2019-050) 0 Reasonable Accommodation No. RA2019-001 SITE LOCATION: 101 Via Undine APPLICANT: Rhonda and Rex Moore OWNER: Rhonda and Rex Moore PLANNER: Melinda Whelan, Assistant Planner 949-644-3221, mwhelan@newportbeachca.gov PROJECT SUMMARY July 31, 2019 Agenda Item No. 1 A reasonable accommodation application to allow a hedge along the perimeter of a front yard setback area to exceed the maximum height limit of 42 inches. The hedge is currently trimmed at the allowed maximum height and the requested accommodation would allow the hedge to be grown to a maximum height of 6.5 feet. The additional hedge height is requested to provide privacy of the front yard area on the subject property for an individual with a disability. RECOMMENDATION 1) Conduct a public hearing; 2) Find this project 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, Chapter 3, because it has no potential to have a significant effect on the environment; and 3) Adopt Resolution No. _ approving Reasonable Accommodation No. RA2019-001 (Attachment No. HO 1). 1 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 2 VICINITY MAP �oh 'ZS �1 GENERAL PLAN ZONING rn. "�vrSS nr "r R�a�rr •' b r "•e3 a •4; v. nrau •. r••• r 'a y ".p ,•. rEY 4b ..IrSf rr•rJ .• a �r r r'•..Nvr •.. He v. �" �' pS v. ;f ,� ba .r w rr n W v. y.,, v •. 4• • f e • f r .•, a y• ' f rt rO^ Mr •.. b•, yr. aO or ba any r r P ~ y �t LOCATION GENERAL PLAN ZONING CURRENT USE ON -SITE Single -Unit Residential Detached RS-D Single -Unit Residential R-1 Single-family dwelling NORTH RSD R-I Single-family dwellings RSD, Private Institutions Single-family dwellings, beach SOUTH PI R-1, PI and community clubhouse EAST RSD R-1 Single-familydwellin s WEST RSD R-1 =F Sin le-famil dwellin s 9 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 3 INTRODUCTION Project Setting The subject property is developed with an existing two-story, single-family dwelling located on a corner lot at the intersection of Via Undine and Via Lido Soud. The lot also fronts a public walkway known as Strada Trieste. The existing dwelling was constructed in 1966 and appears to be in conformance with all Zoning Code regulations. Surrounding land uses include single-family development, and across Via Lido Soud is a community association clubhouse and beach area. The existing dwelling is developed consistent with surrounding development patterns with a small yard area adjacent to Strada Trieste and a small interior courtyard with some small balconies. Project Description A reasonable accommodation application is requesting relief from Newport Beach Municipal Code (NBMC) Section 20.30.040 (Fences, Hedges, Walls and Retaining Walls) and Section 21.30.040 (Fences, Hedges, Walls and Retaining Walls) to allow a hedge to exceed the maximum allowed hedge height within a front yard setback. The hedge is existing and is currently trimmed to the maximum allowed height of 42 inches. The proposed application would allow the existing hedge to grow to a maximum height of 6.5 feet along the perimeter of the small yard area along Strada Trieste. The front yard along Strada Trieste is approximately 40 feet wide. There is a required sight distance triangle adjacent to the intersection of Strada Trieste and Via Lido Soud, where the hedge will be trimmed and maintained at a maximum 36 inches to comply with the City Traffic Engineer's recommendation pursuant to Zoning Code Section 20.30.130(E) (Traffic Visibility Area) to ensure the safety of pedestrians and bicyclists (see Exhibit A in Attachment No. HO 3). No other changes to the property are proposed with this application. DISCUSSION General Plan, Local Coastal Plan, and Zoning Code The subject property is designated RS-D (Single -Unit Residential Detached) by the General Plan Land Use Element. The site is located within the RSD-C (Single Unit Residential Detached) land use category of the Coastal Land Use Plan. The site is located in the R-1 (Single -Unit Residential) Zoning District and Coastal Zoning District. The single-family residence is a permitted use under these land use designations. Pursuant to NBMC Section 21.52.035(C)(1), the project is exempt from the requirements of a coastal development permit since the proposed hedge height increase does not change the principal use of the residence, is accessory to the residence, and does not 3 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 4 result in an increase of gross floor area, height, or bulk of the dwelling structure by more than 10 percent. The R-1 Zoning and Coastal Zoning Districts allow a maximum height of fences, hedges, and walls of 42 inches within front yard setback areas. The subject property has three front yard setback areas as designated by the Zoning Code S-313 Setback Map: 4 feet on Via Undine, 10 feet on Strada Trieste, and 1.5 feet on Via Lido Soud. The 10-foot front yard setback on Strada Trieste is the only exterior yard area and is also accessed via a slider from the bedroom facing this area. 3' Side Setback 101 Via Undine W ..............................�.�.�.1 I I • 1 ■ � .`ao l 1 � m• of • p li ■ O � BUT m e m N -a C m Distance Via Lido Soud Reasonable Accommodation The proposed hedge height within the required front yard setback requires a deviation from regulations for fences, hedges and walls in the Zoning and Coastal Zoning regulations. The applicant chose to request a reasonable accommodation because the person living in the home that is utilizing the bedroom and yard area 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 (LCP) 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 NBMC Section 20.52.070(B) (Reasonable Accommodations, Review 0 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 5 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 an increased hedge height is necessary for the yard area to be utilized by the disabled person. A physician's documentation prepared by Dr. Rimal Bera, MD of UCI Neuropsychiatric Center 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 severe symptoms triggered by passing pedestrians, gardeners, construction workers, dogs, noise and lights. This particular pathway located on the public 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 patient's 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. Medical records from Dr. Bera provides further details on the specifics of the medical condition, however the documentation is protected under the Health Insurance Portability and Accountability Act (HIPAA) and is not public record. 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) requires that all of the following findings be made in order to approve the reasonable accommodation: 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. 5 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 6 iv. 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. 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 increase in the height of the existing hedge is necessary for the disabled resident to utilize the outdoor yard area on the subject property, thus enhancing quality of life. Any alternative modifications necessary to add yard areas outside of the three front yard setback areas cannot be accommodated within the existing residence without more significant disruption and demolition of portions of the existing home. The proposed accommodation would not result in any fundamental alterations to the character and use of the home or the neighborhood. The hedge is a common accessory improvement within the surrounding Lido Isle Community Association (LICA). LICA allows 60-inch-high hedges adjacent to Strada Trieste, which has resulted in a number of over - height hedges becoming prevalent in the community. In this case, the hedge provides necessary privacy of the yard on the subject property. The property is unique with three V Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 7 front setbacks. The only setback that includes an exterior yard area is the front setback on Strada Trieste (public walkway). The disabled person must have privacy to enjoy the yard due to a medical condition as provided by Dr. Bera. There are no feasible alterations for providing an accommodation at the dwelling that would provide greater consistency with the LCP. The taller hedge will not encroach onto Strada Trieste or any public walkway. Therefore, the existing public view that is afforded south down Strada Trieste and across Via Lido Soud towards the beach on the bay will not be impacted. Additionally, the public access via Strada Trieste will not be impacted. Traffic and parking are not affected by the increase in hedge height. The location of the subject property at the intersection of Strada Trieste and Via Lido Soud creates a site distance requirement per the City Traffic Engineer for the safety of bicyclists and pedestrians using Strada Trieste. The hedge will be maintained at a maximum height of 36 inches within the first five feet of the corner to meet the site distance regulation; therefore, the proposed project would not pose a threat to the health or safety of other individuals or substantial physical damage to the property of others. Alternatives 1. 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 15303 under Class 3 (New Consturction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it involves an accessory hedge (regulated as fences in the Zoning Code) that has no potential to have a significant effect on the environment. Project implementation includes raising the hedge and no other changes to the existing single-family 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. 7 Moore Hedge Height (PA2019-050) Hearing Officer, July 31, 2019 Page 8 Prepared by: A.L.,'..z' 14"koo Melinda Whelan Assistant Planner ATTACHMENTS HO 1 Draft Resolution for Approval with Findings and Conditions HO 2 Draft Resolution for Denial HO 3 Proposed Hedge Exhibit ou12na Ii 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, CALIFORNIA, APPROVING REASONABLE ACCOMODATION 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. An application was filed by Rhonda Moore ("Applicant"), owner 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 — 1st 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. 10 Hearing Officer Resolution No. #### Paqe 2 of 7 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 Finding: A letter from Dr. Rimal Bera, MD 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. 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. Facts in Support of Finding: 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 11 Hearing Officer Resolution No. #### Paqe 3 of 7 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. 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. 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 12 Hearing Officer Resolution No. #### Paqe 4 of 7 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. 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 to the health or safety of other individuals or substantial physical damage to the property of others. Finding: F. 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: 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. i3 Hearing Officer Resolution No. #### Paqe 5 of 7 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. There are no feasible alterations for providing an accommodation at the dwelling that would provide greater consistency with the LCP. 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 impacted. Traffic and parking are not affected by the increase in hedge height. 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. 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 ADOPTED THIS 315t DAY OF JULY, 2019. , Hearing Officer M Hearing Officer Resolution No. #### Paqe 6 of 7 EXHIBIT "A" CONDITIONS OF APPROVAL PLANNING 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 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 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 suit, attorneys' fees, and other expenses incurred in connection with such claim, action, causes of action, suit 15 Hearing Officer Resolution No. #### Paqe 7 of 7 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. 10 Attachment No. HO 2 Draft Resolution Denying the Reasonable Accommodation 17 RESOLUTION NO. HO2018-#### A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH, CALIFORNIA, DENYING REASONABLE ACCOMODATION 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. An application was filed by Rhonda Moore ("Applicant"), owner 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 — 1st 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. IN Hearing Officer Resolution No. #### Paqe 2 of 2 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 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 Section 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.... (Hearing Officer will fill-in). SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 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. 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 ADOPTED THIS 31' DAY OF JULY, 2019. Hearing Officer 19 Attachment No. HO 3 Proposed Hedge Exhibit 20 '4 Y E� 5 feet by 5 feet site di with max. 36-inch he( EXHIBIT A Green is existing hedge requested to increase to 6.5 feet along perimeter of front yard Ohl" 21 Hearing Officer - July 31, 2019 Item No. 1a Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: Project File PA2019-050 Date: Friday, July 26, 2019 11:59:52 AM This is public comment for Wednesday's Hearing Officer hearing. From: Wayne Graveline <wayneandlexi@yahoo.com> Sent: Friday, July 26, 2019 10:27 AM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: Project File PA2019-050 Hi Melinda, I live at 115 Via Undine and I am against the hedge height being raised to 6.5 feet. Right now we can see some of the harbor from our patio. If the hedge is raised to 6.5 feet we will not be able to see any of the water in the harbor. I am against this motion PA2019-050. Thank you for your consideration on this matter. Sincerely, Wayne Graveline Headng Officer -July 31, 2019 Item No. 1b Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: Project File No. PA2019-050 Date: Monday, July 29, 2019 9:34:14 AM -----Original Message ----- From: Sandra Abrahamian <sabrahamianl118@gmail.com> Sent: Sunday, July 28, 2019 2:54 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: Project File No. PA2019-050 With respect to the above project, our concerns are that our strata is one of the most used strums on the island because it is usedby everyone going. south from Nord to the beach and clubhouse (where there is a crosswalk). We have people carrying their paddle boards, kids on their skate boards, people carrying their beach stuff and many baby strollers. If the hedge is six feet high, you will not be able to view people coming from the east. In our view, this is dangerous. Almost all entrances to stratas on the island have low hedges or trees so you can see people coming both ways. For this reason, we are against a six foot hedge on this corner because it could be dangerous. Sandy and Ed Abrahamian 123 Via Undine Newport Beach 92663 Hearing Officer - July 31, 2019 Item No. 1c Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: Left a voice mail .... 101 Via undine hedge height Date: Monday, July 29, 2019 9:34:31 AM -----Original Message ----- From: Manal Bozarth <manal@themcmonigleteam.com> Sent: Friday, July 26, 2019 9:39 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: Left a voice mail .... 101 Via undine hedge height Melinda, I have owned I I I Via Undine since 1997 (22 years). One of the main reasons I decided to pay more for this property was this "interior" home had a "sit down bay view". Now I see 101 Via Undine has put in 5 foot hedges and has obstructed my bay view. As the city, you must evaluate each request and identify if this request causes "safety" issues and or `obstructs a neighbor's view" (which isa premium and is part of a home's enjoyment) before agreeing to the said request. This evaluation clearly did not take place when this neighbor at 101 Via Undine, not only caused a "safety" issue by placing their 5 foot hedge around the perimeter of the Strada and sidewalk, but also `obstructed" their neighbors "bay view"! Today, my neighbor Wayne Graveline let me know that you are considering 6 1/2 foot hedge which I am completely against. As mentioned their current 5 foot hedge has already caused "safety" issues and obstructed their neighbors views and enjoyment of their properties. I am asking the city of Newport Beach to evaluate 101 Via Undine and only allow 3 foot hedge (as it was) ... they have no right to increase their hedge height "when" they cause "safety" issues and obstruct neighbors "bay views"! Let me know what the city plans to do to correct this issue. Manal Bozarth 949.412.3699 Broker Associate CA #01029319 Agent Inc. The McMonigle Team Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: Scan from Staples - HO additional public comment Date: Tuesday, July 30, 2019 7:38:43 AM Attachments: Staples Scan pdf From: Don Fesler <donfesler@gmail.com> Sent: Monday, July 29, 2019 4:46 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Cc: bobbief100@me.com Subject: Fwd: Scan from Staples Please find my declaration in opposition to the Moores' application for a reasonable accommodation. Kindly expedite it to the hearing officer. Also, please do whatever might be required to formally make it a part of the record for the hearing on the 31 st. Thank you. Sent from my iPhone Begin forwarded message: Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) 9 Submitted July 29, 2019 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) DECLARATION OF DON FESLER 1. I am a lawyer, licensed to practice law in California since 1973. After 1 retired on January 1, 2017, 1 placed my license on an inactive status. 2. This declaration is filed in opposition to the Moores' Application for a Reasonable Accommodation for their son and is submitted on behalf of myself and my wife, Roberta Fesler. 3. The matters stated herein are within and based on my personal knowledge, are true and correct, and if called as a witness, I could and would competently testify thereto under oath. 4. The photographs attached hereto and incorporated by reference in full were taken by me and fairly and accurately depict what is visualized. 5. All exhibits attached hereto are referred to by the numbers in the lower right hand comer. IF THE HEARING OFFICER MAKES ANY FINDINGS. RESOLUTIONS OR ORDERS AT THIS TIME WE WILL HAVE BEEN DENIED DUE PROCESS 6.On multiple prior occasions, my wife requested copies of ALL writings related to this Application. We have been denied access to, as examples, the Application filed by Rhonda Moore and their adult son's complete medical records. According to the papers submitted by the City of Newport Beach ("City"), the involved application was filed by Rhonda Moore (Attachment No. HO I at page 1), and the City has not only Dr. Bera's farsical letter, but all of the Applicants' son's medical records (Attachment No. HO 2 at page 5). 7. The City's refusal to produce all writing as requested will deny us due process of law if any findings, resolutions or orders are made granting the requested Reasonable Accommodation. For example, according to the City's papers, Rhonda Moore's Application contains at least two falsehoods, namely that (1) the Moores own the subject property, when in fact is owned by Rex Moore's mother's Trust (Attachment No. HO I at page 1), and (2) the Moores' hedge is now trimmed to 42 inches (Hearing Officer Staff Report, page 1). Who knows what else Rhonda Moore said, if anything, that might also be false? 8. The City's failure to allow access to these materials is very significant. In the City's Application form (1), Item No. 2 asks what physical or mental impairments the Applicants' son has that "... substantially limit one or more of such person's major life activities." Who knows what Rhonda Moore wrote or what documentation, if any, was provided? Furthermore, Dr. Bera's conclusory letter is so redacted that one cannot even determine what his Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) diagnosis might be. 9. Without access to these materials, we have been denied the ability to fully respond to all the materials that were provided to the City, thus violating our due process rights. II. REX MOORE'S CREDIBILITY IF ANY IS HIGHLY SUSPECT 10. Rex Moore's credibility, if any, is highly suspect since he twice lied to me. 11. When I saw the Moores' hedge plants arrive on October 11, 2017, and then being planted on October 12, 2017, I asked Rex Moore if he had obtained prior approval from the Lido Island Community Association's Architectural Committee. He twice lied to my face, saying he had. 12. In fact, the Moores did not obtain approval for their hedge until November 17, 2017 (2). 13. The same principles as in a jury trial should apply here. CACI (California Book of Approved Jury Instructions) No. 107, "Witnesses" in part states: "... if you decide that a witness did not tell the truth about something important, you may chose not to believe anything that witness said ...." Obviously, whether the Moores had obtained prior approval for their hedge as was required is something important. 14. Apologizing for possibly being too blunt, Rex Moore is a proven liar whose testimony, if any, that may be presented at the subject hearing should be totally disregarded. THE APPLICANTS' REOUEST FOR REASONABLE ACCOMMODATION IS A SHAM AND ONLY A BLATANT"ATTEMPT TO GET AROUND THE CITY'SNOTICE OF VIOALTION THAT ALL OF THE MOORES' HEDGE HAD TO BE TRIMMED TO A MAXIMUM OF 42 INCHES. 15. On February 25, 2019, the Moores were told by a NOTICE OF VIOLATION to trim their hedge in the front setback, meaning the entire perimeter, to a maximum of 42 inches (3). 16. Instead of complying with the City, they filed their sham Application in a blatant attempt to to avoid complying with the City's Notice of Violation. 17. In this regard, the facts speak for themselves: a. As stated above, the Moores planted their hedge on October 11, 2017. b. From that time forward until their Application was filed, to my knowledge, they have Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) never made a claim that the hedge at 60 inches edge was a problem for their son. Even Dr. Bera stated that the Applicants' son "enjoys the area." (4) c. Only after the Moores were ordered to trim their hedge, did Rhonda Moore file the subject Application, claiming a medical need for a 78-inch high hedge, a full 2 feet higher than the City's Municipal Code permits. d. Then, after, as best I can surmise because I have not been provided with copies of all previously requested writings related to the Application, a farsical letter was obtained from Dr. Bera and then submitted. 18. Why did the Moores wait to file the subject Application until one and one-half years after their hedge was planted? In my view, it is only in an attempt to avoid complying with the City's Notice of Violation. 19. My burning question is: Why did the Moores move to Lido Isle in the first place? The houses on Lido Isle are only 6 feet apart and, consequently, reasonable residents do not expect to have the same degree of privacy they have if they did not live on the island. Responsible parents would not subject their son to such an environment if, as Dr. Bera claims, close proximity to "...passing pedestrians, gardners (sic], construction workers, dogs, noise and lights..." is a threat to his mental health. IV. BESIDES THE CHRONOLOGY DISCUSSED ABOVE, AS FAR AS I KNOW, NOTHING HAS CHANGED SINCE THE MOORES PLANTED THEIR 60-INCH HEDGE 20. The Moores' Application and Dr. Bera's absurd letter clearly, in their attempt to get around the City's Notice of Violation, misstate the actual, true facts. A. The Moores' Hedge Has Never Been Properly Trimmed 21. On July 25, 2019, after I read the City's Staff Report, I visited Lido Isle. We recently moved to Long Beach, but still own the home at 105 Via Undine, which is located right next door to the Moores' residence. 22. In preparation for my site visit, I prepared a 42-inch "measuring stick." (5-1,5-2). 23. 1 found, as I expected, that the Moores' hedge is like it has always been. The hedge in the traffic safety triangle is not trimmed to 42 inches. Exhibits 6-1 through 6-4 show that the hedge is not trimmed to 42 inches, either on the strada side or the sidewalk side of that triangle. 24. Likewise, the hedge is not trimmed to 60 inches along the remaining part. In fact, where the hedge meets their house, it is well over 60 inches, as can be seen in the photographs which show Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) our 60-inch tall gate and the Moores' untrimmed hedge (7-1 and 7-2). B. The Moores' Son's Bedroom Was Never Located Next To Their Hedge 25. The Moores' son's bedroom was never located next to their hedge. Rather, from the time they moved in, in the summer of 2017, until we moved out on February 22, 2019 — a period of 18 months -his bedroom was always in the northeast comer of the house (8-1 and 8-2), on the opposite side of the house from the hedge — the side abutting the street. 26. I know this because adjacent to that bedroom and along the side of the Moores' house that runs parallel to the side setback between our two houses, there is a shower, with a door that opens into that setback area (9). At one point, I had to contact Rex Moore to request that the shower door be kept closed. My December 17, 2017, email states: Kindly keep the shower door between our properties closed. As you know, we and our housekeeper must be in that area to, for example, take our trash cans in and out, and I [am] concerned that you might attempt to raise an invasion of privacy issue. Thank you. 27. Acknowledging that their son did use the shower which is part of his bedroom, Mr. Moore blocked off the shower door (9). 28. Just like depicted in Exhibit 9, when the Moores' son used the shower, water always pooled to the depression of the cement walkway next to the shower. This photo, taken on July 25, 2019, showing pooled water suggests that shower was still in use as recently as last week. C. The Shutters on the Lefthand Side Of The Moores' Street -Side Window Were Never Closed. 29. The view into and out of the left side of the Moores' street -side window was never blocked, demonstrating that neither their son nor his parents felt such seclusion was necessary to protect their son's privacy and make him feel safer. The window has shutters, which were always closed before the Moores moved in, but they were never used after their son moved into that room. 30. That window is about 8 feet from our front door. It is also no more than approximately 6 feet from where the front of my car was when I parked it. 31. I can declare these facts with absolute certainty: a. I walked by the subject window more than 1,000 times after the Moores moved in. b. The left -side shutters were never closed. Nothing ever covered that window. In fact, in nice weather, the window was usually open. c. Day and night, the TV inside the Moores' son's bedroom could be seen and was always on. Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) 32. Residents walk past that window, as they go up and down Via Undine (a one-way 17- foot - wide street) to and from the beach. Others go on walks, often with their dogs. Cars and loud construction trucks and construction workers use the street; and, noisy kids ride their bikes and scooters up and down the street. These same things occur on both the sidewalk in front of the Moores' house and along their hedge next to the strada. V. FOR AT LEAST TWO REASONS, THERE IS NO NEED FOR THE MOORES TO HAVE A 78- INCH HEDGE. 33. Without limitation, there are at least two reasons why the Moores' hedge does not need to be taller than 42 inches, even though it is not now or ever been properly trimmed. A. Contrary to Dr. Bera's Claim, The Moores' Son Is Not Housebound. Instead, He Engages In Normal, Everyday Activities. 34. I have personally seen the Moores' son regularly engage in normal, everyday activities where he voluntarily subjects himself to contact with "passing pedestrians, gardners [sic], construction workers, noise and lights" — so-called "triggers" according to Dr. Bera- such as: a. logging around the island. b. Skateboarding around the island. c. Walking the Moores' dog with his father. d. Driving the Moores' black Toyota Tacoma truck. e. Taking large trash cans out to and back from the curb on Via Undine. f. Attending Lido Isle's community Friday night BBQ's, which are usually very crowded and attended by at least 50-75 people. I have seen Rex Moore and his son get in a long line, surrounded by many, many other residents, to get their food. g. Working out (alone) on at least a half -dozen occasions in the gym at the Balboa Bay Club. As with most gyms I have been in, it is jammed with various equipment and a lot of other people. B. As The City's Staff Report States, The Moores Have a Very Nice Interior Patio Which Is Very Private, Making a78-Inch Hedge Totally Unnecessary 35. The Moores already have an interior, enclosed patio, making an outdoor enclosure with a78- inch hedge totally unnecessary to provide their son a "more secluded, quiet and safe" outdoor area, as Dr. Bera claims he needs. 36. Exhibit 10 where I circled it shows an overhead view of the patio. Exhibit I 1 depicts the Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) door that leads into the patio. 37. Having been in the Moores home on many occasions before they moved in, to socialize with Dr. and Mrs. Tilden, I can say that, without question, the interior patio is a very nice, secluded area, with even the sound of a water fountain to help block noise from the area outside of the home. 38. Thus, the Moores' son already has access to an outdoor area that is more secluded than a 78- inch tall hedge could ever be and which more effectively blocks any noises that might be problematic for him. Any hedge, including the Moores', can be seen through (particularly when a 5-foot triangular area needs to be trimmed to no more than 36 inches), and, unavoidably, cannot keep noise out. VI. CONTRARY TO THE CITY'S STAFF REPORT A 78-INCH TALL HEDGE WOULD NOT BE A NOMINAL CHANGE, BUT WOULD RESULT IN A FUNDAMENTAL ALTERATION IN THE CHARACTER AND USE OF THE NEIGHBORHOOD. 39. Contrary to the Staff Report, a 78-inch hedge would not be a nominal change on Lido Isle (Staff Report at page 4) and would, indeed alter the character of the neighborhood (Staff Report at page 3). Quite to the contrary, a 78-inch hedge would result in a fundamental alteration in the character and use of the neighbor hood. It would also create an eyesore and a blight on the adjacent homes, including the Moores'. 40. The Staff Report does not state the basis for the claim that there are "a number of over - height hedges becoming prevalent in the community." Nor does it state what is meant by "over - height." If that term refers to a height in excess of the 60 inches stated (in violation of California law) in Lido Isle's Covenants, Conditions and Restrictions, it is completely inaccurate and without any foundation. In fact, the Lido Isle Community Association staff monitor the height of hedges on Lido Isle regularly and report monthly to the Board of Directors how many notices were issued the prior month directing residents to trim their hedges. If instead the term intends to refer to the City's 42-inch limit (which, under state law also applies to all properties on Lido Isle), the statement is erroneous for a different reason. The City's Code Enforcement Officers have stated a willingness to issue Notices of Violation to Lido homes which are reported as and are, in fact, in violation of the 42-inch height limit. In fact, a number of homes on Lido Isle — including the very one at issue in this hearing — have received such Notices of Violation and been required to trim their hedges. 41. To illustrate (See Exhibit 12, my rather poor, not to scale, attempted portrayal of what the requested hedge would look like.), if the hedge at the 5-foot by 5-foot perimeter of the triangular traffic safety area was 3-feet tall, and it bordered by a 78-inch-high hedge, it would create an eyesore. There is not a hedge anywhere else on Lido Isle that looks that one would look like. 42. In fact, a hedge in the proposed configuration could not and would not result in an increased Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) sense of safety and security as claimed, nor accomplish the other things mentioned in Dr. Bera's redacted letter. Instead, like an attractive nuisance, it would invite people to look inside the hedge at the traffic safety triangle, to try to see what the heck was going on behind what would be the tallest hedge on the island. VII. DR. BERA'S LETTER IS A CONCLUSORY FARSE WITHOUT ANY FOUNDATION FOR ITS CONCLUSIONS. 43. The only evidence before the Hearing Officer to support a claimed disability requiring a reasonable accommodation is Dr, Berg's letter. For the most part, that letter is pure poppycock. 44. As examples, it does not contain: a. A diagnosis. b. A medical history. c. A discussion of any medications the Moores' son has taken in the past or is now taking for his medical condition, whatever that might be, and whether any medications are working or not. d. Mention of any psychometric tests such as a basic MMPI which has validity scales (20) which reveal whether a patient's symptoms are being over -reported and/or exaggerated (23). d. Any indication of when the Moores' son supposedly became his patient. e. Any statement whether the existing 60-inch hedge caused or alleviated any of the symptoms mentioned in his unfounded letter. F. Any qualified opinion, and the reasons and basis thereof, as to why a 78-inch is so magical that it would do anything whatsoever to address the Moores' son's alleged symptoms, which seem very much contrary to the everyday activities that I have seen him do. 45. Here, it must again be emphasized that we have not been provided with a "clean" copy of Dr. Berg's letter or a complete copy of the medical records, and neither has the Hearing Officer. Without much more than has been submitted, there is not sufficient evidence to establish that the application was filed on behalf of a person with a disability (especially in light of the first-hand, eye -witness testimony I have provided, above, about the Moores' son's regular activities in public), let alone that a 78-inch hedge is not only a necessary, but a more effective "reasonable accommodation" that permits him to enjoy his dwelling. 46. As best as I can tell, Dr. Bera does not even know whether a hedge is now in place or what the hedge -enclosed area looks like, including its dimensions. And, he seems to assume that the Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) sidewalk in front of the Moores' home is mausoleum -like, with no pedestrian traffic, no noise or anything else like the strada has. Nor, does it appear that he was told about the required traffic safety triangle of less than half of his desired 78-inch high hedge, which will entirely defeat the intent to create his proposed secluded area. As can be seen from the attached photographs, the Moores' hedge is not, and never will/can be, hermetically sealed to eliminate the noise of passing pedestrians, gardeners (The Moores have one.), construction workers, dogs (The Moores have a dog that barks a lot at passing pedestrians — just like Rex Moore told me that he would, when he said that he hoped the dog's barking would not be a problem- walking in front of the hedge and sidewalk in front of their house, particularly when he is outside on the Moores' upstairs patio off of their bedroom, the west wall of which is over the left front, southeast portion of their hedge.), noise and light. And, to quote Dr. Bera: "It is imperative my patient have the reasonable accommodation of privacy and a sense of security which a 6.5 foot hedge located directly in front of my patients ]sic] bedroom and bathroom would provide." (4) At best, that area is only about 12-15 feet long. Here, it is curious that Staffs Report does NOT refer to the limitations of the hedge, namely that it need by 78-inches only in front of the patient's bedroom and bathroom. Vill• THE MOORES' APPLICATION FOR REASONABLE ACCOMMODATION SHOULD BE DENIED. 47. Based on all matters set forth in this declaration, it is respectfully submitted that: a. This Declaration formally be made a part of the record of the public hearing. b. The Moores' Application be denied in its entirety. c. The Moores be required to cut their entire hedge down to 42 inches, with the traffic safety triangle area to be maintained at no more than 36 inches. I declare under penalty of perjury that all of the facts stated herein are true and correct, and that this Declaration was executed on July 29, 2019, at Long Beach, CA. DON FESLER Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 1 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received �F,VF'Pp�,T Request for Reasonable Accommodation Moore Hedge Height (PA2019-050) Supplemental Information Required Community Development Department U > S Planning Division 100 Civic Center Drive / P.O. Box 1768 / Newport Beach, CA 92658-8915 (949)644-3204 Telephone 1(949)644-3229 Facsimile www.n ewportbeachca.aov To aid staff in determining that the necessary findings can be made in this particular case as set forth in Chapter 20.98 of the Municipal Code, please answer the following questions with regard to your request (Please attach on separate sheets, if necessary): Name of Applicant If provider of housing, name of facility, including legal name of corporation (Mailing Address of Applicant) (City/State) (Zip) (Telephone) (Fax number) (E-Mail address) (Subject Property Address) Assessor's Parcel Number (APN) I. Is this application being submitted by a person with a disability, that person's representative, or a developer or provider of housing for individuals with a disability? 2. Does the applicant, or individual(s) on whose behalf the application is being made, have physical or mental impairments that substantially limit one or more of such person's major life activities? If so, please state the impairment(s) and provide documentation of such impairment(s). 3. From which specific Zoning Code provisions, policies or practices are you seeking an exception or modification? Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received A�YI,&kl11�N� ffibGIA2019-050) 4. Please explain why the specific individuals with a disability an equal if any, to support your explanation._ exception or modification requested is necessary to provide one or more opportunity to use and enjoy the residence. Please provide documentation, 5. Please explain why the requested accommodation will affirmatively enhance the quality of life of the individual with a disability. Please provide documentation, if any, to support your explanation. 6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Please provide documentation, if any, to support your explanation. 7. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary to make your facility economically viable in light of the relevant market and market participants. Please provide documentation, if any, to support your explanation. 8. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary for your facility to provide individuals with a disability an equal opportunity to live in a residential setting taking into consideration the existing supply of facilities of a similar nature and operation in the community. Please provide documentation, if any, to support your explanation. 9. Please add any other information that may be helpful to the applicant to enable the City to determine whether the findings set forth in Chapter 20.98 can be made (Use additional pages if necessary.) Page 2 of 2 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 2 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) lido isle communey suclaboh 4 / R &" ILA *& A. ti* fta0m A l ftoww"i ki x" kno t opwol M WV% Upope 101111110"It "19% CA SM3 s 1te'1 WI 01!r0M Oar M111110 • M wr " Comi awwWq ** Wani %okswili Xw 4 An. fol ftr *(" ft LON&W em tliew tow $r Laft AM TV* 61lwevas wtgwrt " fted" peg" a to at nu ww" Will ec7 wt L40 %a Geft" a* is we of can ea► ►A *%w bt wtwr+w■Red w" sal a .�►+ t+ �"ni no t#M is "to 9% bid Ow 1 me Cf, Vvi Hsi V* WWRAWK 000 0 W M Mtif tMl the a" W is tii .awo aft whoft ow e"M tt fir ►410AW no" 4w �► wr +. wat wwwo *w~ to ear 00 ft awt WIOON"" #A I IS I i I� Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 3 NOTICE OF VIOLATION CITY OF NEWPORT BEACH Community Development Department Code Enforcement Division Hearing Officer - July 31, 2019 Item No. ld Additional Materials Received Moore Hedge Height (PA2019-050) 100 Civic Center Drive, Newport Beach, CA 92660 949-644.3215 Number: 119-0464 Date: 52/25/2019 Name of Owner or Business : TILDEN LEORA G G DAY LIVING TR PO BOX 310 MCCALL IDAH0,83638 An inspection of premises located at 101 VIA UNDINE NB in the City of Newport Beach, on 02/25/2019 revealed a violation(s) of the Newport Beach Municipal code. WARNING ONLY [ X] PREVIOUSLY ADVISED [ ] FINAL WARNING [ ] NEWPORT BEACH MUNICIPAL CODE SECTION(S) / DESCRIPTIONS OF VIOLATION(S) 1: MC 20.30.040 FENCES, HEDGES, AND MALL REQUIREMENTS CORRECTION(S) REQUIRED - PLEASE TRIM ALL HEDGES IN THE FRONT SETBACK TO A MAXIMUM OF 42". -THANK YOU - The City of Newport Beach recognizes that oversights occur and challenges come up. We encourage you to contact the Code Enforcement Division for questions about this notice or to request an extension of time if one is needed. We understand the importance of working together and appreciate your cooperation in this matter. THIS VIOLATION MUST BE CORRECTED ON OR BEFORE 03/04/2019. If the violation is not corrected by the date specified, an ADMINISTRATIVE CITATION may be issued and penalties will begin to accrue ($100.00, $200.00, AND $500.00) each day. Additional enforcement actions such as administrative citations, administrative penalties, prosecution and/or civil injunction may be utilized to correct this violation(s). A REINSPECTION WILL BE MADE ON OR AFTER THE CORRECTION DATE. IF THE CORRECTION(S) IS NOT COMPLETED AN ADMINISTRATIVE CITATION MAY BE ISSUED AND FEES WILL BEGIN TO ACCRUE. PRINT NAME OF OFFICER John Murray SIGNATURE OF OFFICER �� OFFICER ID # 8137 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 4 Dr. Rlrtral Bare, M.D. UCI Neurapsychietric Center 6/20//2019 Re: Reasonable Accommodations/Confidential 101 Via Undine Newport Beach, CA 92663 Dear Honorable Hearing Officer, Hearing Officer - July 31, 2019 UCl � l� pal,Nght :nerials Received Behavl e t In eight (PA2019-050) 20350 SW Birch Street Ste 100 Newport Beach, CA 92660 P) 714-46"902 F) 949-250-9177 This letter serves to verify my patiem has been under my medical. care for the diagnosis and treatment of a illness. �� it is imperative my patient have the reasonable accommodation of privacy and a sense of security which a 6.5 foot hedge located directly in front of my patients bedroom and bathroom. _the hedge protects my patients' privacy and alleviates these symptoms triggered by passing pedestrians, gardners, 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. My patient spends the majority of his time at home and enjoys this area located directly outside of the patients' bedroom and bathroom and is accessed by the patient through sliding glass doors opening to the front yard ai 101 Via Undine. The reasonable accommodation will allow my patient to continue to enjoy a more secluded, secure, quiet and safe area inside and outside of the bedroom. This letter substantiates the patient's disability is protected under the Fair Housing Laws and the requested accommodation is necessary to provide my patient with an equal opportunity to use and enjoy the dwelling, while still protecting his privacy rights. 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M d S CID m e9 PFQQ tr M p CD Y 10 r r W m CD D Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 11 IU; c w 1 Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT 12 1 R a • e • e • i 9 R Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FIN: Declaration of Roberta Fesler and Exhibit Thereto in Opposition to Moores' Application for Reasonable Accommodation - additional public comments Date: Tuesday, July 30, 2019 7:39:15 AM Attachments: Scanned Documents.ndf From: ROBERTA FESLER <bobbief100@me.com> Sent: Monday, July 29, 2019 10:34 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: Declaration of Roberta Fesler and Exhibit Thereto in Opposition to Moores' Application for Reasonable Accommodation Ms. Whelan: Please find attached a Declaration and Exhibit from me, in opposition to the Moores' application for reasonable accommodation. I request that you forward this attachment to the Hearing Officer and arrange to have it included in the official record of the upcoming hearing. Thank you. Roberta Fesler Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) ACCOMMODATION Submitted July 29, 2019 Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) I, Roberta Fesler, declare 1. 1 have firsthand knowledge of the facts stated herein, and if called as a witness, I could and would competently testify thereto under oath. 2. Since 1995, along with my husband, Don Fesler, I have owned the home at 105 Via Undine, Newport Beach, CA, which is next door to the home at 101 Via Undine, Newport Beach, CA, that is the subject of this hearing. 3. In 1974, 1 was admitted to practice law in the State of California. I am now retired and an inactive member of the Bar. My entire 36-year career was spent as an attorney for local government agencies. I worked for the Los Angeles Office of the County Counsel for nearly 34 years, where 1 rose to become the third highest manager in the office. Before my retirement, I served for nearly 2 years as the General Counsel of the Los Angeles Unified School District. During my career, among other things, I oversaw the analysis and provision of advice to my clients on applications for reasonable accommodations. For the facts and reasons discussed herein, it is my professional opinion that there are not sufficient facts in the record of this proceeding to support the findings required to grant the reasonable accommodation which has been requested, and the Application fails to meet the tests required to justify exempting the Applicants from compliance with the Municipal Code of the City of Newport Beach. 4. In the summer of 2017, with the consent of his mother, Leora Tilden (the owner of the home located at 101 Via Undine, Newport Beach), Rex Moore, his wife, Rhonda, and their adult children moved into that home. 5. On October 11, 2017, my husband and I went to the Moores' home to discuss with them their plans for the several dozen 60+-inch plants that had been delivered to their home that day. 6. We met with Mr. Moore, who advised us that they intended to create a hedge around the entire perimeter of the front setback area, by planting all of the 60+-inch plants about 4 inches apart, so they could eventually grow together to form a hedge. We expressed our concerns about this plan, and we asked Mr. Moore whether the Lido Isle Community Association ("LICA") had approved it, as we had received no notice of the project. He advised us that he had already obtained approval from LICA. He lied. 7. Coincidentally, the monthly meeting of LICA's Board of Directors was that night, so I advised the Association's staff that we would be attending the meeting to address the Board about our concerns and the failure of LICA to notify us before the Moores' project was approved. 8. When we arrived at the Board meeting a few hours later, before we could address the Board, we were advised that, contrary to what Mr. Moore had told us, LICA had never approved any landscaping plan for them (as required by LICA's Covenants, Conditions, and Hearing Officer - July 31, 2019 Item No. le Additional Materials Received Moore Hedge Height (PA2019-050) Restrictions (-CCARi )) The si also stated that, after we brought the antler to Itrw► attention, they hand dsWered a letter to the Moores, advisi barn tot they could not proceed with any changes unleis and until they applied for and ►ecerved approval of Oboe plans horn L i Archdectuiel Coninultse They also provided them with the appduabon pocket they shoukf use to seek that approval Finally, the staff advised us and the Board that the Moores assured them that they would follow the rules and complete the process before making any changes to the existing landscaping These promises were also lies g Earty the lotlowing morning, October 12, 2017, the Moores deployed a crew of at Isast a or 8 landscape workers, to totally destroy the existing landscaping and quickly pland his several dozen 60+-inch plants, and make the rest of their changes to the front setback area before we or LICA could take any action to prevent them. When we objected and told them we knew of the letter that LICA hand-deliverod the prior afternoon, Mrs. Moore responded that the letter wasn't addressed to them, so they didn't have to abide by it (Presumably, the letter was addressed to Mrs Tilden, as the owner of the property Under LICA's rules, only property owners are entitled to apply for approval of landscaping plans ) 10 A few days later. after we had contacted Mrs. Tilden to express our dismay at these events, Mr Moore proposed that we meet, to see if we could reach a mutually acceptable arrangement We met on October 20, 2017, During the meeting, Mr. Moore explained that they wanted a hedge along the strada, because the bedroom that his douah►er would be using whenever she was home from college had a sliding door that opened onto the front setback area along the strada. We discussed a number of alternatives we suggested to create privacy, many of which we had explored and/of used ourselves. Among others, we mentioned window tinting that blocks anyone from looking through a window into the inside, window blinds, shutters, shades, and sliding doors with enhanced locks and/or built-in blinds. We even invited Mr. Moore to come into our house to see some of these suggestions in place He declined. 11 The side setbacks on Lido Isle are only 3 feet, so the exterior of our house is only 6 feet away from the exterior of the house where the Moores live. Because our trash cans were on that side of the house, I was in that side setback area at least once and often several times each day As a consequence, I was able to observe if lights were on, whether shades were open or closed, A there were sounds (music, TV, etc.) or other signs of life in the rooms along that side of their house during those trips During the 18 months we lived next to the Moores, the bedroom they now claim is used by the son for whom they are seeking a reasonable accommodation ("son") appeared to be unoccupied the majority of the time. The only time I ever noticed any signs of life in that room was when the Moores' other children were home on breaks from college. 12 Contrary to their current claim that their son uses the room that faces onto the strada, for the entire 18 months we lived next door to the Moores, their son occupied the bedroom on the opposite side of the house, which faces directly on Via Undine, adjacent to our front porch and front door That bedroom has corner windows, facing the street and the side setback eras that runs between our property and their house. 2- Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Virtually every time I went into or out of the front of my house, the window in that bedroom that faced the street, and often the one facing the side setback, were wide open for viewing into and out of the bedroom. The shutters for those windows, which had been closed almost 100% of the time before the Moores moved in, were now wide open nearly 100% of the time. I became aware of this change because the TV in that bedroom played nearly constantly, all day and well into the night. Each time we walked our dogs before bed, for example, the TV was playing and the shutters were wide open. 13. It was my custom and practice to drink a cup or two of coffee each morning as I read the morning newspapers. I would do this while sitting in my family room, which has a full wall of windows and a French door overlooking and opening onto the slrada that runs along the front setback area. I opened our blinds in the mornings, to enjoy the sunlight and the view. During the 18-month period we lived next door to the Moores, I regularly watched through our windows as the Moores' son jogged down the strada, past our house. I didn't keep an actual tally of how often he jogged by, but based on my recollection, I would estimate that I saw him at least 4 times a week, often more than once during the same jog. I also saw the Moores' son skateboarding around Lido on several occasions. Again, I had no idea the number of times I saw him would become relevant to any official proceeding, so I didn't keep any official record of how frequently that occurred. My estimate is I saw him skateboarding at least 6 times, possibly more often. Finally. I frequently saw the Moores' son driving his black truck, either leaving home or arriving back from someplace he'd gone. On none of these instances - whether jogging, skateboarding, or driving his truck - did the Moores' son appear to be apprehensive or otherwise anxious or concerned about being out among the general public. In fact, his demeanor was no different than that of any of the other dozens of people who walked, biked, skate boarded, or jogged around Lido Isle every day. And, he didn't use the shutters that were available to shield himself from seeing and being seen by us and the many others who made multiple trips past his bedroom every day. In fact. prior to the Moores' moving in and continuing until we moved out in February of this year, construction was going on to build a home directly across the street from our house. For a good portion of that time, there were large pieces of equipment in use, and many construction workers on the scene every weekday from 7 a.m to 4 p.m or later. Throughout that entire time, the Mooresson kept his shutters open, exposing him to the sights and noise of that construction project. As my husband has noted, the absence of any useful medical information in the record of this Proceeding makes it impossible to know the medical basis for the alleged need for the seclusion of a 78-inch high hedge. But. 1 can confidently say that, on practically a daily basis for at least the 18 months that I lived next door to them, the Moores' son voluntarily subjected himself to being out and about among and otherwise exposed to the passing pedestrians, gardners [sic], construction workers, dogs, noise and lights" that Dr. Rtmal Bera, MD, describes as "triggers" for his symptoms. I would expect someone suffering from a condition serious enough to require a hedge 3 feet higher than that allowed by the Municipal Code to -3- Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) avoid regular, voluntary exposure to things that aggravate that condition. I saw no evidence whatsoever that the Moores' son made any such attempt. 14. The house in which the Moores live has a shower on the side adjacent to the side setback next to our house. The shower has a door that opens into the setback, and apparently also can be accessed from inside the house. The exterior shower door is across from where our trash cans were kept, which, as noted above, allowed me to view it every day when I look out our trash. Prior to the Moores moving in, I never noticed anything that suggested that shower was being used. However, after the moved in, there was always water on the ground, just outside the exterior shower door. And, the latch seemed to be broken, because sometimes the exterior shower door would not be tightly closed. I mentioned this to my husband and asked him to contact Mr. Moore about the problem, to avoid any concerns that might be created by my daily trips to the trash cans. My husband emailed Mr. Moore, and shortly after that, the Moores used various things to hold the exterior shower door closed (e.g., a garden hose, wound on its holder, a screen made of bamboo or something similar, boogie boards or other water sports equipment, etc.). Because the Moores' son was obviously using the bedroom adjacent to that bathroom, and because there were no indications that anyone other than the Moores (whose bedroom and bathroom are on the second floor of the home) and their son were living at the house, except during sporadic times when the other children were on college breaks, I concluded that the Moores' son was the individual using that shower during the 18 months that I lived next door to them. As I stated above, that shower was and is directly accessible to the outside of their house, through a shower door that is kept shut not by a lock or any other form of true security, but by a garden hose or other things laying around the house. 15. Several years before the Moores moved in, my husband and I became close friends with Mr. Moore's mother, Leora Tilden, and her husband, Dr. Tom Tilden. The Tildens' primary home was on a ranch in Idaho, but as Mrs. Tilden explained to me several years ago, she decided they should spend the winters at their Newport Beach home. With Dr. Tilden getting older, she was concerned about him getting hurt in the icy, snowy conditions at their ranch during the winter. So, spending 5 or 6 months in Newport Beach became the solution to that problem. While they were living next door to us, we frequently socialized with them. As a result, I was inside their home many times, and Mrs. Tilden took me on a tour at least twice — once with just me, and a second time when our daughter and her family were included in the tour and visit. During those visits and tours, I saw and even sat in the fully enclosed interior patio of the home. It is a large patio, which is along the side of the house bordering Via Lido Soud. It is fully enclosed from public view and opens into the main living area of the home. It has a nice fountain which makes a pleasant, relaxing sound when it's going, as well as a barbeque. The Tildens spent a great deal of their time in that patio when they stayed at the house. Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) I Its" 61111 I41"r+111111111 Ito Illr"11 If, Ill" I,b y, 11111 11tta fill 111""m f*pnll it, Illn IIIII,h,. finlr/am Iron I(II Ina wnf" Itf opl,II II In 1111 k(11slob "Idly Illlnf II1nt Iof)"1III IitIII) (lots I If It, f d IIt1 11 0,1111111 loffivule fllHll m1111 a1 t'nma III (flu 111114111n W1111un1 "MInI"Illu 111111 Ito Ill" Ifluunla, Ihrll folti OF (infn-is 11111 Cliffs In loot, lion ono lunn+l l,nidl pwilidna Irnllal 1,11,1001on hrnn 11111an 'llluu«f"," batMlaYn it irl folio lu.all Willi aulltl allot 1 11 walla Inattlllil ul f"nvtla, I1lndl111n;) lulnl (,filial / fflorls twolfi 1 gflll h"lnla moan (Iy fin nnIa11111 wfllld II Ito niau (filly 11111 looau f, rift 401,1004011114 11191 hood UMI1n1.Y lonii, w10111. In oftful Its llfuvllin " I I"ql aluIll 11n111 fill 111011fiala Hill 1o1u1"ahlgllm, will ton f"yell"ll Ito hav" III" hoduti 11lnuutnl lip fin Iunn haul In" In to li by h' Itsarlula ill Ilia allnnl and HIM itfooll l mluhl priih will follnw lfauidn lip lank fillip Ihn floruf anlinn.lf ntn►a, n" wall nos arlttlmlolu Iha Monfort", milli lip (h" kliullla and au111111a fit 111n would follaldn lit ( III ,Innuniv .1f) fit lhia yanl, 11aanlartaol Ilia (,Ify'a (,udn I nhul.anlanl Divisican it) rtK{unal Ihol Ihn Mlnlfna 11110t►n ha illmll"o l"d, not II onto nmu.h Illtilom Ilium Ili" 42" pNlrnlll4d under tow 01y'n Miuul lllnl (:twin it too I, 111" lllnul loatio n fit Ihnl hndtin Iowa navar been trlrnrrwd to nnylhinu Alton lip II:" sill" it wart ldrmlud In n hurry fin ( lr,ltol)nt 12, 2017, Iha area around Ihn Itinlviint mould Ionih hna hunts k"ld tihurltor fhnn Ihn total of Ihn Itarlifa, but It has also umuolly axt undnd 47" 111t I "brunly J0, WO III, I lulluwrnl fill by nnlnlling Iha Code F ufor(mrnent Officer assigned to Illy Iellun"t I I" q(Ivlswd loin by Intern nnuill that tin had Inspected the hedge and determined that It did, lndlauf, vfolfi Ihn (:Ily'm Ilmll 0 42" He fuilhar advised me that he Intended to Is"ue a Notice tat Vlulainn, which would tin innlled within the next few days. In feat, that N11t11 r+ it Viulnflun is dalnli I nbnulry 25, 2OIo Hnunlin" Ihn 11111Lp, held nul Imnn 111i1nn"d 11r rnu11d1nd in any way (other then gnawing is little highol utsrtl (lily), I nnunll,d silo (;ts,61 I nloft-iii Officer again on March 13, 2019, Inquiring about thn status of the enforcarnnnt iwllon. He notified me that the Moores had responded to the Nulloe of Violation by npplyint) ffi1 if reasonable accommodation. He was unable to provide ma fifty Infoirnalion atauut Ihnt ptocose or how long It might take, sip he promised to send nee thw Imposts of the assigned planner, as soon as the assignment had been made. Eventually, he gllvn fill, contact information for Melinda Whelan. During the first wook of May, I unsuccessfully atlompted to contact Ms. Whelan With the Code Enforcement Officer's assistance, Ms, Whelan and I finally connected by telephone, during which time she briefly outlined the procedure the City follows to process applications for reasonable accommodations. During our conversation, I advised Ms. Whelan that we Intended to oppose the Moores' application for a reasonable accommodation, and I also requested a copy of dU written materials related to the request. She told me they were not yet compiled, but she assured me we would be receiving a mailed notice of the hearing and that I could have a copy of the materials when they were compiled. She stated that she could not provide any submitted medical records, because they would be confidential under HIPAA. 17. On July, 18, 2019, 1 inadvertently discovered that this hearing had been calendared and notice of it posted on the subject property. So, I emailed Ms. Whelan and again requested all the documents upon which the application was being considered. Prior to sending my email, I did extensive legal research and confirmed what I had suspected - that, in this instance, the City of Newport Beach is neither a "covered entity" nor a "business associate" as those terms -5- Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) nln tlallnal in t ill'AA Art it Inaull. nothing 111 ihnl body of law restricts the City from providing nt,caaa lu nradlt.nl of urda uprnl which an appllcnhon for reasonable accommodation is made. I „Ian Innnnichnd Iha doe powoftu rights that attach to participants In a quasi -Judicial plo.nndiou ullch na thin hnnting I nunin confirmed what I remembered from my days of plot lit iou lot.nl lJovnIIIIIIonl Inw, rued ndvisad Ms. Whelan that the City was required to plovolo ncrnns to ull uvldunuu upon which the decision of whether to grant the Moores' rt,yuHatad Innaonnhln ncconmtodation will hot made. I copied the City Attorney on this email, Ma Whnlnn Iespo ldod by snying the staff luport was not yet completed, but she would send It ulnae In n low dnys, whan II wns tinnllxod. As for my records request, she again stated her vinw that any nladlcril Incords ware protected by HIPAA and required to be kept confidential, au ahu n,luand to plovido Ihosn Ie Inn. My response to her was to urge her to consult with lho holy Altomuy'a Ofhcn, so the plocess followed by staff would fulfill the Clty's obligations undnl rudernl Hoof stale constitutional and slnlulory provisions. I o dnin, I hnva only received the Staff Report and a heavily redacted copy of a one -page Intlnr born Ih Bare, Upon my Inquiry, Mh Whelan has advised that those are the only narn,nnls that hnva been submitted to tho !tearing Officer for consideration. I understand, howavel, Ihnl wlilings the City receives from members of the public such as my husband and nlysnlf will bu nvtdlnble on the Clty's website and will also be given to the Hearing Officer in ndvrmce of the bent Ing. 18, Altnchad hereto as an exhibit is a summary of the reasons, arguments, and laws that require dental of the Application for Reasonable Accommodation filed by the Moores, I declare under penalty of penury that the foregoing Is true and correct Executed this 291h day of July, 2019, In Long Beach, California. ROBERTA FESLER -6- Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) EXHIBIT TO DECLARATION OF ROBERTA FESLER IN OPPOSITION TO THE MOORE'S APPLICATION FOR A REASONABLE ACCOMMODATION Submitted July 29, 2019 Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) ARGUMENTS IN OPPOSITION TO THE GRANTING OF A REASONABLE ACCOMMODATION AS REQUESTED FOR PROPERTY LOCATED AT 101 VIA UNDINE. NEWPORT BEACH CA (NO. RA2019-050 Introduction Rhonda and Rex Moore filed an Application for Reasonable Accommodation, pursuant to City of Newport Beach Municipal Code ("NBMC") section 20.52,70. Through abuse and misuse of the right created by the City Council to assist residents genuinely in need of relief from one or more of the City's laws or rules, the Moores are attempting to avoid complying with a Notice of Violation ("NOV") issued on February 25, 2019. That NOV ordered them to trim a hedge in their front setback yard. Contrary to representations made in the Staff Report prepared and submitted in connection with this matter, for its nearly 2-year existence, and continuing until today, the hedge has never been in compliance with the 42-inch maximum height established by NBMC section 20.30 40 A.1. From the day it was planted, it has been at least 60 inches high.' It is even higher than 60 inches today. The Moores have steadfastly clung to the position that they aren't required to comply with any laws, rules, or regulations that stand in the way of them doing whatever they please. When the City finally issued the NOV and they saw no other way out, they decided to find any loophole they could use to continue to do as they pleased. They hit upon seeking a "reasonable accommodation," claiming their adult son has a medical need for an outdoor area enclosed by a hedge higher than what the NBMC permits. Adding insult to injury. the Moores don't just seek to be allowed to maintain their hedge at its current height. Instead, they decided to "go for the gusto," as the saying goes, claiming the City must permit the hedge to grow another 18 inches above its current illegal height, to a whopping 78 inches — or nearly double the height permitted by the NBMC. As discussed below, there are many reasons why the Application should be denied and the Moores be required to comply with the same Property Development Standards as all the other residents of the City of Newport Beach. In early 2018, the City Traffic Engineer determined that the safety of motorists and pedestrians required the creation of a "clear sight path" by trimming to no more than 42 inches in height a 5 foot by 5 foot triangular area at the street end of the hedge. The Moores did trim that area, but even then, it has consistently exceeded and even today exceeds the 42-inch maximum authorized by the City. (According to the Staff Report, the City Traffic Engineer has now determined that triangular area needs to be maintained at no more than 36 inches to protect against vehicle -pedestrian accidents ) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) 1. There is Insufficient Evidence to Support the Findings Required to Approve This Request for Reasonable Accommodation NBMC section 20.52.070 D.2.a. sets out the findings that are required to support an approval of an application for reasonable accommodation. There is insufficient evidence In the record to support the required findings. The only evidence in the record offered in support of the allegation that the Moores' son is an "individual ... with a disability protected under the Fair Housing Laws," the first required finding, is a one -page, heavily redacted letter from a Dr. Rimal Bera, MD. Due to the redactions, the condition from which their son allegedly suffers cannot be determined, so there is absolutely no way to conclude that it is a condition that entitles him to protection under the Fair Housing Laws. Dr. Bera's conclusory statement in the last sentence of the letter does not constitute evidence. It is nothing other than an unsubstantiated statement for which he has provided no medical support. The second required finding, that "[tjhe requested accommodation is necessary to provide [that] individual an equal opportunity to use and enjoy a dwelling" (emphasis added) is also wholly unsupported by any evidence In the record Dr. Bera's letter, written more than 3 months after the Moores filed the application, does nothing more than claim a need for the same 78-inch height limit requested in their application. To suggest that it is suspicious that he just happened to conclude that the hedge height needed to be precisely the height they had requested 3 months earlier would be a gross understatement. Beyond the suspicious nature of his "finding," he offers absolutely nothing to support this conclusion. Why is 42 inches insufficient? What makes 78 inches the magic height? Why is this particular piece of the property the one and only place that satisfies his patient's alleged medical need? Was he aware that the 5 foot by 5 foot triangular area required to be maintained at a much reduced height, for the safety and protection of the community, will completely negate any privacy or protection which he apparently believes will be created by a 78-inch high hedge? Was he told about the fully enclosed outdoor patio that better provides both privacy and protection from noise and lights? His letter fails to offer any support for this required finding. On the other side of the ledger is firsthand, eye -witness testimony providing actual facts demonstrating that Dr. Bera's claims about what triggers his patient's unknown symptoms are specious. The Declarations of Don Fesler and Roberta Fesler clearly establish that the Moores' son routinely and voluntarily engaged in activities which exposed him to the very conditions from which Dr. Bera claims he needs protection. -2- Hearing Officer - July 31, 2019 Item No. to Additional Materials Received Moore Hedge Height (PA2019-050) Furthermore, those Declarations also establish that, up to at loast tho dny Iho NOV was issued to the Moores, their son used a dNferont bedroom and bathroom Ifoni the one Dr. Bera was told he used. Thum Is no Indication that 1), Dora was evor nra(IO aware of the existence of a different bedroom available to his pitwnt which would not require an exemption from a local law limiting lho hoight of hodges. Nor is Chore anything to suggest that Dr. Bare was told about how his patient always kept his shutters open, so he could see all the activity outside of his bedroom, day and night, and anyone going by could likewise see him. NBMC 20.52.70 D.3. authorizes the Hearing Officer to consider the "necessity" of the requested reasonable accommodation. As explained above, not only is a 78-inch hedge not -necessary," it is not even desirable. First of all, as the facts set out in the referenced Declarations make clear, the Moores' son has seen no need to be sheltered from "...passing pedestrians, gardners [sic], construction workers, dogs, noise and lights." In fact, on a daily basis, he engages in activities that expose him to all of these things. Furthermore, as the Declarations also establish, if anyone believes the Moores' son actually requires outdoor space that can be secluded from these "triggers," the existing fully enclosed outdoor patio provides such an area. Indeed, it is better suited to provide the kind of protections Dr. Bare claims in his letter that his client needs. II. The ify Has Failed to Comply With the Due Process Reauireme1312 of Federal and State Law. Prohibiting_ Any Approval of The Subject ARplication As a matter of law, this hearing is quasi-judicial in nature. As such, the City is required to conduct it in compliance with the requirements of federal and state due process requirements, as well as the fair hearing requirements established in Code of Civil Procedure section 1094.5. Among other things, constitutional due process and California statutory law require that all materials relied upon in support of a decision to approve such an application be provided to anyone wishing to object to that approval. Notwithstanding my repeated requests to the City, I have not received materials relied upon by the staff in preparing and issuing its Hearing Officer Staff Report. That Report references "medical records" which have been reviewed, but they have been withheld under an incorrect determination that the City is obligated to maintain their confidentiality, which is based on an invalid interpretation of HIPAA. Furthermore, I have even been denied the right to see the application submitted by the Moores. Without the opportunity to review the Moores' allegations, 1 am at a significant disadvantage in developing facts and arguments to counter those allegations. As the referenced Declarations show, the credibility of the Moores is subject to serious -3- Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) question, so the inability to review their representations results in a great likelihood that more of their misleading, inaccurate, or downright false statements will go unchallenged. Finally, I have no way of knowing what other materials have not been provided to me, because the City has refused to even identify what records other than the category of "medical records" it is withholding. So, there is no way to determine whether the evidence and arguments contained in the referenced Declarations address all of the information upon which the Staff Report is based. I have been told by City staff that the only document (other than the Staff Report) which is being provided to the Hearing Officer is the one -page, heavily redacted letter from Dr. Bera. Assuming this statement is accurate, it is obvious the record is insufficient to support a decision approving the subject application. If this statement is no correct, that fact is further failure on the City's part to comply with the due process required by federal and state law. The due process safeguards provided in Art. 1, section 7 of the California Constitution are arguably even broader than those required by the US Constitution. California due process includes a liberty interest in 'freedom from arbitrary adjudicative procedures." Peoole v. Ramirez (1979) 25 Cal.3d260, 268-69. In that case, at pp. 268- 69, the California Supreme Court articulated the California due process factors: "(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional safeguards; (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible government official; and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirement would entail." In the matter at hand, granting the requested reasonable accommodation will create a severe negative impact on the use, enjoyment, and value of my property, by creating a very significant impediment to my view and the availability of light and air, and by positioning my property directly next to what will be the biggest eyesore on all of Lido Isle. Without access to all materials upon which an approval would be based, my ability to effectively respond to and/or counter the information contained in those materials is seriously compromised. Under California law, an individual facing possible deprivation of a recognized interest has the right to defend himself or herself. I cannot achieve that right without the opportunity to review all materials upon which an approval of the application might be determined. Respectfully submitted, RoAerta:F�eler2_ -4- Hearing Officer - July 31, 2019 Item No. 1f Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: 101 Via undine....fled, please forward to Ed Johnson Date: Tuesday, July 30, 2019 9:22:33 AM Attachments: Staples Scan pdf AT_ 0000_1.W -----Original Message ----- From: Manal Bozarth <manal@themcmonigleteam.com> Sent: Tuesday, July 30, 2019 8:25 AM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: 101 Via undine.... filed, please forward to Ed Johnson Melinda, I received this attached document from my neighbor. Please note, Don Fesler is an attorney and has been very involved in this matter (he was the Moore's neighbor). From my understanding, this document was filed yesterday. As I suspected, this Dr.'s letter sounded suspect from the moment I heard about it yesterday morning when I spoke with you. And this "disabled" person has an outdoor area for his enjoyment (center courtyard). As pointed out in the attached document, this hedge looks ludicrous ("altering" the look of Lido isle); to have 36" triangle with a 60" hedge (the current height code is 42"). Now you are agreeing to a 78" hedge? As the document points out, this would only cause people to "peek in" to see why the hedge looks like this... causing more triggers for this "disabled" person. As the document states, if these people are truly concerned for their son, then why would they purchase a home on Lido with close living proximity, and this location?! I am so upset with all this information, the city is not seeing the manipulation that the Moore's are creating to have it "their way"...including lying (as pointed out in the document below). It is not acceptable to have people "manipulate" the system, please note they still have not complied with the city's violation request. From the information provided, these are the type of people I describe as "entitled" and feeling they are "above the law". Please read and forward to Ed Johnson and other persons involved in making a decision in this matter. Confirmation of receipt is requested. Refer to Additional Materials Item No. 1 D for Mr. Don Fesler's 40 Page correspondence Hearing Officer - July 31, 2019 Item No. I Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FIN: Scan from Staples Date: Tuesday, July 30, 2019 4:11:20 PM Attachments: Staples Scan pdf From: Don Fesler <donfesler@gmail.com> Sent: Tuesday, July 30, 2019 3:59 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Cc: bobbief100@me.com Subject: Fwd: Scan from Staples Please make this Supplemental Declaration and expedite it to the Hearing Officer. Thank you. Sent from my iPhone Begin forwarded message: From: Staples Business Center < cr gI2&sttaplesbusinesscenter.com> Date: July 30, 2019 at 3:50:36 PM PDT To: "donfeslera�gmail.com" <donfesler(V.Umail.com>, "bobbieF100(j�me.com" <bobbieF 100n_ me.com> Subject: Scan from Staples Scanned Document From Staples Store Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) SUPPLEMENTAL DECLARATION OF DON FESLER I, DON FESLER, declare: 1. Paragraphs 1-5 of my original Declaration are incorporated by reference in full. 2. On July 30, 2019, I received and reviewed part, but not all, of the writings my wife, Roberta Fesler, had requested from the City, which were just transmitted to her.. 3. Nonetheless, I can further declare the following: I. THE MATERIALS I REVIEWED TODAY FURTHER CONFIRM THE APPLICATION SIGNED BY RHONDA MOORE IS A SHAM. 4. In my original declaration, I declared that given the chronology of events, the Moores' Application is a sham and only an attempt to get around the City's Notice of Violation. 5. The materials I reviewed today prove that this is a correct assessment. Specifically: 2/25/19: The City's Notice of Violation was sent the real owner of 101 Via Undine, Leora Tilden and her Trust (1). 3/12/19: Rhonda Moore filed the subject Application (2). 6/20/19: Dr. Bera signed his farsical letter. Curiously, Rhoda Moore's Application wants a 6-feet hedge. Dr. Bera's letter refers to a 6.5 feet hedge. In any event, this chronlogy further proves that the Moores' Application is a Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) sham. II. LIKE REX MOORE RHONDA MOORE'S APPLICATION PROVES SHE IS A LIAR. 6. On page 1, Item 1, of the Application, Rhonda Moore said she and Rex Moore are the owners of 101 Via Undine. 7. On page 1, Item No. 7, Rhonda Moore signed under penalty of perjury that all of the statements contained in the Application "... are in all respects true and correct...." 8. Since the City of Newport Beach's Notice of Violation was sent to the real owner of the property, Rhonda Moore's statement in the Application is a deliberate, knowing lie. Also, Exhibit 3 proves that the Applicants do not own the subject property (3). THE MOORES HAVE WILLFULLY FAILED TO EVEN ABIDE BY THE LICA'S APPROVAL OF THEIR LANDSCAPE PLANS 9. Exhibit 4 is a copy of LICA's approval of the Moores' illegal landscape plan. 10. The Moores have thumbed their noses at not only the City, but also both LICA and their neighbors. 11. As can be seen, the entire hedge was illegally approved to be 60 inches along its entire perimeter, including next to the northeast corner of Mrs. Tilden's house. As can be seen from the photographs attached to my first Declaration, the hedge at that location is well above 60 inches, just like it has Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) always been (5). 12. Per the plans, as I interpret them, the enclosed area was supposed to have plants inside of it. In reality, it is nothing less than a gravel pit, as can be seen in Exhibit 6. Here, it is also of interest that, I surmise, that the Applicant's son is using the enclosure at its current height, as evidenced by the beach towel on the lounge chair (6). IV. THERE IS NOT QUESTION THAT THE MOORES KNOW THAT THEIR HEDGE VIOLATES LICA'S ILLEGAL APPROVAL 13. This is not a case of an innocent misunderstanding. It is a case of an egocentric, malicious, "I can do anything I want," circumstance. 14. In this regard, I have taken periodic photographs of the Moores' illegal hedge. 15. Mr. Moore is a true "thumb noser." In fact, he took photographs of my home when, on one occasion, he saw me taking photographs of his hedge (7). V. THE CITY'S FAILURE TO PRODUCE ALL DOCUMENTS WE HAVE REQUESTED ON MULTIPLE OCCASIONS. 16. Rhonda Moore's statement that she is the "person's legal representative" is more than a little suspect. Is she the individual's guardian ad litem? Let's see the proof of that. 17. is Rhonda Moore the individual's conservator? Where is any documentation that proves that? Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) 18. We still don't know what the condition of the applicants' son might be. Rhonda Moore says he has an "... illness. Legally disabled." 19. Here, my questions/comments are: A. What is the illness? No one, including Rex Moore, Rhonda Moore or the infamous Dr. Bera has said what the son's illness is or offered an actual diagnosis. B. Where is the proof that the individual is "legally disabled"? V. A HEDGE, NO MATTER HOW TALL, WILL NOT SHELTER THE SUBJECT INDIVIDUAL FROM NOISE THE FEELING OF THE PRESENCE OF PEOPLE WALKING BY, NEIGHBORS TURNING THEIR LIGHTS ON AND OFF NOISE OR ANYTHING ELSE 20. As I previously declared, a 6.5-foot hedge will not accomplish a single thing. 21. Only one thing needs to be said the point: The hedge has, and always will, have holes in it! (8). I declare under penalty of perjury that the foregoing is true and correct and that this Supplemental Declaration was executed on July 30, 2019, at Long Beach, CA 90815. DON FESLER Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) NOTICE OF VIOLATION CITY OF NEWPORT BEACH Community Development Department Code Enforcement Division 100 Civic Center Drive, Newport Beach, CA 92660 949.644-3215 Number: 119-0464 Date: 02125/2019 Name of Owner or Business: TILDEN LEORA G G DAY LIVING TR PO BOX 310 MCCALL IDAHO,83638 An inspection of premises located at 101 VIA UNDINE INS in the City of Newport Beach, on 02/25/2019 revealed a violation(s) of the Newport Beach Municipal code. WARNING ONLY [ X] PREVIOUSLY ADVISED [ ] FINAL WARNING [ ] NEWPORT BEACH MUNICIPAL CODE SECTION(S) / DESCRIPTIONS OF VIOLATION(S) 1: MC 20.30.040 FENCES, HEDGES, AND WALL REQUIREMENTS PLEASE TRIM ALL HEDGES IN THE FRONT SETBACK TO A MAXIMUM OF 42". -THANK YOU. The City of Newport Beach recognizes that oversights occur and challenges come up. We encourage you to contact the Code Enforcement Division for questions about this notice or to request an extension of time if one is needed. We understand the importance of working together and appreciate your cooperation in this matter. THIS VIOLATION MUST BE CORRECTED ON OR BEFORE 03/04/2019. If the violation is not corrected by the date specified, an ADMINISTRATIVE CITATION may be issued and penalties will begin to accrue ($100.00, $200.00, AND $500.00) each day. Additional enforcement actions such as administrative citations, administrative penalties, prosecution and/or civil injunction may be utilized to correct this violation(s). A REINSPECTION WILL BE MADE ON OR AFTER THE CORRECTION DATE. IF THE CORRECTION(S) IS NOT COMPLETED AN ADMINISTRATIVE CITATION MAY BE ISSUED AND FEES WILL BEGIN TO ACCRUE. PRINT NAME OF OFFICER John Murray SIGNATURE OF OFFICER ��� OFFICER ID # 8137 Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) 'AwpoRr Request for Reasonable Accommodation O o Supplemental Information Required Community Development Department J` "0 Planning Division e r 100 Civic Center Drive / P.O. Box 1768 / Newport Beach, CA 92658-8915 (949)644-3204 �Q1P�IB�, Telephone 1(949)644-3229 Facsimile www.newportbeachca.gov To aid staff in determining that the necessary findings can be made in this particular case as set forth in Chapter 20.98 of the Municipal Code, please answer the following questions with regard to your request (Please attach on separate sheets, if necessary): Name of Applicant If provider of housing, name of facility, including (Mailing Address of Applicant) (City/State) (Zip) (Subject Property Address) Assessor's Parcel Number (APN) I. Is this application being submitted by a person with a disability, that pet-son's representative, or a developer or provider /of housing for individuals disability? / 2. Does the applicant, or individuals) on whose behalf the application is being made, have physical or mental impairments that substantially limit one or more of such pet -soil's 1nAlnr hfe AC}iylrlP.C? If cn ntease state the 3. From which specific Zoning Code provisions, policies or practices are you seeking an exception or modification? PA2019-050for RA2019-ool 101 Via Undine Rhonda and Rex Moore c Hearing Officer - July 31, 2019 Item No. I Additional Materials Received Moore Hedge Height (PA2019-050) aEwaoRr 11re �A ,1 CI' 9 "05 �.i /_ Commun; Development Department Planning Permit Applir-A' for RA2 019-091 a t o " PA2019-050 <r/FOaNn 101 Via Undine - t Rhonda and Rex Moore 1. Check Permits Requested: ❑ Approval -in -Concept - AIC # ❑ Lot Merger ❑ Staff Approval ❑ Coastal Development Permit ❑ Limited Term Permit - ❑ Tract Map ❑ Waiver for Do Minimis Development ❑ Seasonal ❑ < 90 day ❑>90 days ❑ Traffic Study ❑ Coastal Residential Development ❑ Modification Permit ❑ Use Pertnil-❑Minor❑Conditional ❑ Condominium Conversion ❑ OR -Site Parking Agreement ❑ Amendment to existing Use Permit ❑ Comprehensive Sign Program ❑ Planned Community Development Plan ❑ Variance ❑ Development Agreement ❑ Planned Development Permit ❑ Amendment -❑Cade ❑PC ❑GP ❑LCP ❑ Development Plan ❑ Site Development Review - ❑ Major ❑ Minor ❑ Other: ❑ Lot Line Adjustment ❑ Parcel Map 2. Project Address(es)/Assessor's Parcel No(s) Project Description and Justification (Attach additional sheets if necessary): l) rr' • � .1, Z' 7C% r � lZi'Gr" :rvi« W c� �E C �ti<ck h c',v 5 4. Applicant/Company Name Mal In Address E'� L City � �'t C:l 31,:2- ' (. Phone r 5. ContactlCompan N�a�me I Mailing Address 1lIIL u City L Phone 6. Owner Name ¢ Mailing Address City state I C Fax I Email /] state J Fax =I Email I J state Faxj- Er Suite/Unit 7. Property Owner's Affidavit*: (1) (We)1-4 &- jZ_F(` 1'_ / _ __ depose and say that (I am) (we are) the own r(s) of the properly (ies) in ived in application. (1) (We) further certify, under penalty of perjury, that the foregoing statements and answers herein contained and the information herewith submitted are in all respects true and correct to the best of (my,) (our) knowledge and belief. Signature(s): ' �� .` Tide: Date: 6 I of ena Signature(s): Title: Date: "May be signed by the lessee or by an authorized agent If written authorization from the owner of record is filed conc e application. Please note, the owner(s)' signature for Parceirrract Map and. Lot Line Adjustment Application must be zed. rV F:lUeom CODlalrpnd'Ad lnXPImNna OWIFbnWppliuponsWPAwpm_Gp nos"nMlp Pima RppNmW-CDP WM.dau Rev. OV2/7 ' Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) FOR OFFICE USE ONLr Date Filed: 03-12-19 ❑ 2700-5000 Acct. NO FEE CHARGED APN No: 423 251 14 ❑ Deposit Acct. No. Council District No.: 1 For Deposit Account: General Plan Designation: RS-D Fee Pd: Zoning District: R-1 Receipt No: Coastal Zone: © Yes ❑ No Check #: Visa ❑ MC ❑ Amex ❑ # ❑ CDM Residents Association and Chamber Community Association(s): Lido Isle Community Assoc. Development No: D2019-0305 Project No. PA2019-050 Activity No: RA2019-001 Related Permits: APPLICATION ❑ Approved ❑ Denied ❑ Tabled: ACTION DATE ❑Planning Commission Meeting ❑Zoning Administrator Hearing ❑Community Development Director Remarks: APPLICATION WITHDRAWN: Withdrawal Received (Date): APPLICATION CLOSED WITHOUT ACTION: Closeout Date: Remarks: Z.3 F:1Users%PLNiShared%Staff_DitAGarciamay%RuhyldesktoptDESKrOP_\CUT PASTE _DRAG _CO x Updated 08/15/17 Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Application Number 4. Please explain why the specific exception or modification requested is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy the residence. Please provide documentation, if any, to support your explanation. (i��Q(t.SP_ .. ylI fj)F,ti (�r^fl s• 5. Please explain why the requested accommodation will affirmatively enhance the quality of life of the individual with a disability. Please provide documentation, if any, to support your explanation. IJa4x-, 5-cr,rlfx1- Fyn 6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Please ` provide documentation, if any, to support your explanation. nll fe S'� -er f�1elo+— ()leS-e 7. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary to make your facility economically viable in light of the relevant market and market participants. Please provide documentation, if any, to support your explanation. 8. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary for your facility to provide individuals with a disability an equal Opportunity to live,in a residential setting taking into consideration the existing supply of facilities of a similar nature and operation in the community. Please provide documentation, if any, to support your explanation. lease add any other information that may be helpful to the applicant to enable the City to determine whether findings set forth in Chapter 20.98 can be made (Use additional pages if Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) "Request for Reasonable Accommodation" 4. In order for_to live in our home at 101 Via Undine must have a resonable accomodation of a 6 foot hedge to provide privacy and safety from the strada . needs to be able to go in and out ofEroom without feeling the presence of the people walking by, neighboring homes with lighting turning on and off, and other 5. The hedge surrounding the perimieter of our side and on 101 Via Undine provides -with privacy and safety that will enables=to go outside as does not leave the home most days. On days when0chooses to stay in■rooman have the sliding doors open and still fell safe from the barrier provided by the hedge. There is a constanf flow of foot traffic byE room from the strada all day long due to the main beach and lido clubhouse being located directly across the street. is denied 11 not be able to sit out side or perform any ,ities as will feelfihas NO orivacv. twill not be able N by the strada to the fullest offability. Thank you - Rhonda Moore 101 Via Undine 2p19.09 1 5� JOT RP P p30 � a Undtpeex 000te Rh°nda and a area Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) "Request for Reasonabk; Accommodation" 9. We are asking the City of Newport Beach to approve our request for "Reasonable Accommodation" to allow us to maintain our existing hed a above the 42 inch city limit in order to allow —to fully ujUije our side yard. has a leaal disability of We would like to provide the outdoor side yard of our home on 101 Via Undine, Lido Island for -to be able to enjoy a PRIVATE and SAFE area outside bedroom. At this time the hedge serves as a protective barrier from the people walking up and down rin the strada nei hbohomes I okin in id an li hts comin into indow in the evenings. We believe has the right to enjoy outdoor space wfth the protection and privacy a 6 foot hedge will offer. As stated by the Americans Disability Act, if you have a Thank you for your time and consideration in this private matter. Rhonda Moore 101 Via Undine CA 92663 our i-4 Hearing Officer - Juty4.,2Q18. . Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) CALIFORNIA TITLE OMPANY, 040, GLMO '/30/2019 02:30PM NWJU RANGE 2018-19 TAX ROLL ITERED APN: 423-251-14 APN: 423-251-14 INVESTIGATIVE SEARCH RESULTS CUSTOMER SERVICE REQUEST ONLY PAYMENTS AS OF 07/19/2019 SEARCH PARAMETERS ORANGE, CAI PAGE 1 OF 11 TRA: 07-001 - CITY OF NEWPORT BEACH DOC#: 2016-27931 LEGAL: TRACT 907 LOT 252 SITUS: 101 VIA UNDINE NEWPORT BEACH CA 92663-5514 MAIL: PO BOX 310 MCCALL, ID 83638 ASSESSED OWNER(S) 2018-19 ASSESSED VALUES G DAY LIVING TR LAND 92,525 TILDEN LEORA G TR LEORA IMPROVEMENTS 74,343 TAXABLE 166,868 2018-19 TAXES 1ST INST 2ND INST TOTAL TAX STATUS PAID PAID PAYMENT DATE 10/23/2018 10/23/2018 DELINQUENTDATE 12/102018 04/10/2019 INSTALLMENT 1,064.75 1,054.75 2,109.50 PENALTY 105.47 128.47 233.94 BALANCE DUE .00 .00 .00 ASSESSMENT DETAIL CODE # TYPE AMOUNT JURISDICTION Al ALL PROP AV TAX 1.753.50 BASE TAX U4 OCSD SEWER USER FEE 335.00 ORANGE CO SANITATION DIST (OLD OCS C7 MWD WATER STDBY CHG 11.60 MWD-MWDOC WAS CMWD ORIG AREA 12059 BA MOSQ,FIRE ANT ASSMT 7.48 ORANGE COUNTY VECTOR CONTROL DISTR B3 VECTOR CONTROL CHG 1.92 ORANGE COUNTY VECTOR CONTROL DISTR 2,109.50 TOTAL OF SPECIAL ASSESSMENTS ADDITIONAL PROPERTY INFORMATION COUNTY USE CODE: SFRSD STANDARD LAND USE: SFR END OF SEARCH Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) 1,0 Recording Requested By And When Recorded Mail To: Edward D. Ahrens, P.C. Ahrens DeAngeli Law Group LLP P.O. Box 9500 Boise, ID 83707-9500 Phone: (208)639-7799 Fax: (208)639-7788 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 12.00 III�IIIn�111��I0 NNN0 2 9 6 1�lll�lt� 20160000279312:0 pm 01121116 217 422 G02 F13 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 Documentary transfer tax: $0 No tax i wed a ause 's a transfer to a trust not pursu .a s Signature of Declarant or Agent Determining Tax: Ahrens DeAngeli Law roup LLP Tr Revenue and Taxation Code: 11930 V Grant Deed Jf Leona G. Tilden, Trustee of the LGT Newport Beach Residence Trust, "Grantor," a trust i Y` established under the laws of the State of Idaho by an agreement dated May 5, 2005, for good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, transfer and convey to Leora G. Tilden (formerly known as Leora G. Day), Trustee of The Leora G. Day Living Trust, U/T/A dated July 15, 1992, as reformed and restated, whose current address is P.O. Box 310, McCall, Idaho 83638, "Grantee," all of Grantor's interest in the following described real property located in Newport Beach, Orange County, California, more particularly described as follows: Lot 252 of Tract No. 907 as shown on Map recorded in Book 28, pages 25 to 36 inclusive of Miscellaneous Maps, Records of Orange County, California, Mail tax statements to: Leora G. Tilden, Trustee of The Leora G. Day Living Trust P.O. Box 310 McCall, ID 83638 Hewpq QffieeF -J4y 31, 2019. - Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) TOGETHER WITH all improvements, easements, hereditaments, and appurtenances thereto, and all tenements, reversions, remainders, rights -of -way and water rights in anywise appertaining to the property herein described. SUBJECT TO taxes and assessments for the year 2015 and all subsequent years, and to such rights, easements, liens, encumbrances, covenants, rights -of -way, reservations, restrictions, and zoning regulations as appear of record or based upon the premises, and to any state of facts an accurate survey or inspection of the premises would show. APN: 423-251-14 IN WITNESS WHEREOF, the Grantor executes this instrument solely in their fiduciary capacity. Any further recourse hereunder is to be only against the aforenamed trust. DATED this 21" day of December, 2015. STATE OF IDAHO ss. COUNTY OF ADA The LGT Newport Beach Residence Trust, U/T/A dated May 5, 2005 By: Leora G. Tilden, Trustee "Grantor" On December 21, 2015, before me, the undersigned, Notary Public, personally appeared Leora G. Tilden, Trustee of The LGT Newport Beach Residence Trust, U/T/A dated May 5, 2005, - known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same for and on behalf of said trust. "« TNESS WHEREOF, I have hereunto set my hand and affixed my official seal the t above written in this certificate. pRY � • ICC) `G If Notai ub is for Idaho PUBS r ission expires: / Grant Deed 300 Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) II 9 a d.Y W g Q so f T fI /+�r4 CY171 rrrI 'r r .� yi }ef i `2. . ✓ f r7 P- t 4 MINIM y r - S •, "I r \ x • S d _! Y - __ � T fff • r 1 � A � 4r Y ' (i a ee Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Subject: FW: Supplemental Declarations of Don Fesler and Roberta Fesler Date: Tuesday, July 30, 2019 4:39:14 PM Attachments: Supplemental Declaration of Don Fesler pdf Supplemental Declaration of Roberta Fesler.pdf From: ROBERTA FESLER <bobbief100@me.com> Sent: Tuesday, July 30, 2019 4:21 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Cc: Don Fesler <donfesler@gmail.com> Subject: Supplemental Declarations of Don Fesler and Roberta Fesler Ms. Whelan Attached please find materials I request be included in the official record of tomorrow's hearing regarding the Application for Reasonable Accommodation filed by Rex and Rhonda Moore. These supplemental Declarations could only be filed now, due to an email I received earlier this afternoon from Lanny Krage transmitting Records partially responsive to the request I initially made in early May. Thank you. Roberta Fesler Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) SUPPLEMENTAL DECLARATION OF ROBERTA FESLER IN OPPOSITION TO THE MOORES' APPLICATION FOR A REASONABLE ACCOMMODATION Submitted July 30, 2019 Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) SUPPLEMENTAL DECLARATION OF ROBERTA FESLER I, Roberta Fesler, declare 1. 1 have firsthand knowledge of the facts stated herein, and if called as a witness, I could and would competently testify thereto under oath. 2. Yesterday, I submitted a Declaration in this matter. This Supplemental Declaration is filed to add one piece of information which should have been included in the original Declaration, and to provide updated information based on a recent development. 3. In Paragraph 16 of the Declaration which I filed yesterday, I referenced having been in the home at 101 Via Undine, Newport Beach, CA, when it was occupied by the owner of record, Leora Tilden, and her husband, Dr. Tom Tilden. During the (at least 2) tours which Mrs. Tilden gave me of her home, I learned of a third bedroom on the ground floor of that home. This bedroom is in addition to the two discussed in my original Declaration — the one on the street that was occupied and used by the Moores' son during the 18 months we lived next door to them (for these purposes, "bedroom 1"), and the one facing the strada which they now claim he occupies (for these purposes, "bedroom 2."). The additional bedroom (for these purposes, "bedroom 3") is actually adjacent to and, in essence, behind bedroom 2. It is tucked away in the middle of the house, having no windows or exposure to either the street or the strada. The only window is on the side of the house, looking onto the side setback area between our house and the one occupied by the Moores, as I described that area in my Declaration filed yesterday. Bedroom 3 could be used by the Moores' son to provide him total and complete seclusion while in his room, where Rhonda Moore and Dr. Bera claim he spends the majority of his time. It would allow him to be totally free of any disturbance caused by noise or light, and certainly give him a greater sense of security and privacy than could ever be provided by a hedge, no matter how tall it is. If he actually has a medical condition that requires the kind of seclusion, privacy, and security the Moores' are claiming he needs, it has been available to him all along. Coupled with the fully enclosed patio, with its soothing fountain and complete protection from viewing or being seen by the outside world, the Moores' son already has in the home more than a hedge could ever provide to address whatever medical condition he may or may not have. 4. In Paragraph 17 of the Declaration which I filed yesterday, I stated that, notwithstanding my repeated requests, the City had refused to provide me with all of the documents upon which the decision of whether to approve or deny the Moores' Application for Reasonable Accommodation would be made. I also indicated that I had not even been provided with a copy of the actual Application filed with the City. Those statements were true and correct at the time I made them. 5. Earlier this afternoon, I received an email from Lanny Krage, a representative of the City. Mr. Krage provided me with heavily redacted copies of the Application signed by Rhonda Moore, as well as a few other documents which were apparently attached to that Application. Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) However, the City continues its refusal to provide me access to all of the documents in its possession related to this Application, its processing, and any decision which is eventually made as to whether to approve or deny it. For the reasons stated in the Declaration submitted yesterday, this refusal to provide me all of the requested materials constitutes an unconstitutional and illegal denial of my due process rights regarding this matter. I declare under penalty of perjury that the foregoing is true and correct. Executed this 30" day of July, 2019, in Long Beach, California. ROBERTAFESLER -2- Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) SUPPLEMENTAL DECLARATION OF DON FESLER I, DON FESLER, declare: 1. Paragraphs 1-5 of my original Declaration are incorporated by reference in full. 2. On July 30, 2019, I received and reviewed part, but not all, of the writings my wife, Roberta Fesler, had requested from the City, which were just transmitted to her.. 3. Nonetheless, I can further declare the following: I. THE MATERIALS I REVIEWED TODAY FURTHER CONFIRM THE APPLICATION SIGNED BY RHONDA MOORE IS A SHAM. 4. In my original declaration, I declared that given the chronology of events, the Moores' Application is a sham and only an attempt to get around the City's Notice of Violation. 5. The materials I reviewed today prove that this is a correct assessment. Specifically: 2/25/19: The City's Notice of Violation was sent the real owner of 101 Via Undine, Leora Tilden and her Trust (1). 3/12/19: Rhonda Moore filed the subject Application (2). 6/20/19: Dr. Bera signed his farsical letter. Curiously, Rhoda Moore's Application wants a 6-feet hedge. Dr. Bera's letter refers to a 6.5 feet hedge. In any event, this chronlogy further proves that the Moores' Application is a Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) sham. II. LIKE REX MOORE RHONDA MOORE'S APPLICATION PROVES SHE IS A LIAR. 6. On page 1, Item 1, of the Application, Rhonda Moore said she and Rex Moore are the owners of 101 Via Undine. 7. On page 1, Item No. 7, Rhonda Moore signed under penalty of perjury that all of the statements contained in the Application "... are in all respects true and correct...." 8. Since the City of Newport Beach's Notice of Violation was sent to the real owner of the property, Rhonda Moore's statement in the Application is a deliberate, knowing lie. Also, Exhibit 3 proves that the Applicants do not own the subject property (3). THE MOORES HAVE WILLFULLY FAILED TO EVEN ABIDE BY THE LICA'S APPROVAL OF THEIR LANDSCAPE PLANS 9. Exhibit 4 is a copy of LICA's approval of the Moores' illegal landscape plan. 10. The Moores have thumbed their noses at not only the City, but also both LICA and their neighbors. 11. As can be seen, the entire hedge was illegally approved to be 60 inches along its entire perimeter, including next to the northeast corner of Mrs. Tilden's house. As can be seen from the photographs attached to my first Declaration, the hedge at that location is well above 60 inches, just like it has Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) always been (5). 12. Per the plans, as I interpret them, the enclosed area was supposed to have plants inside of it. In reality, it is nothing less than a gravel pit, as can be seen in Exhibit 6. Here, it is also of interest that, I surmise, that the Applicant's son is using the enclosure at its current height, as evidenced by the beach towel on the lounge chair (6). IV. THERE IS NOT QUESTION THAT THE MOORES KNOW THAT THEIR HEDGE VIOLATES LICA'S ILLEGAL APPROVAL 13. This is not a case of an innocent misunderstanding. It is a case of an egocentric, malicious, "I can do anything I want," circumstance. 14. In this regard, I have taken periodic photographs of the Moores' illegal hedge. 15. Mr. Moore is a true "thumb noser." In fact, he took photographs of my home when, on one occasion, he saw me taking photographs of his hedge (7). V. THE CITY'S FAILURE TO PRODUCE ALL DOCUMENTS WE HAVE REQUESTED ON MULTIPLE OCCASIONS. 16. Rhonda Moore's statement that she is the "person's legal representative" is more than a little suspect. Is she the individual's guardian ad litem? Let's see the proof of that. 17. is Rhonda Moore the individual's conservator? Where is any documentation that proves that? Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) 18. We still don't know what the condition of the applicants' son might be. Rhonda Moore says he has an "... illness. Legally disabled." 19. Here, my questions/comments are: A. What is the illness? No one, including Rex Moore, Rhonda Moore or the infamous Dr. Bera has said what the son's illness is or offered an actual diagnosis. B. Where is the proof that the individual is "legally disabled"? V. A HEDGE, NO MATTER HOW TALL, WILL NOT SHELTER THE SUBJECT INDIVIDUAL FROM NOISE THE FEELING OF THE PRESENCE OF PEOPLE WALKING BY, NEIGHBORS TURNING THEIR LIGHTS ON AND OFF NOISE OR ANYTHING ELSE 20. As I previously declared, a 6.5-foot hedge will not accomplish a single thing. 21. Only one thing needs to be said the point: The hedge has, and always will, have holes in it! (8). I declare under penalty of perjury that the foregoing is true and correct and that this Supplemental Declaration was executed on July 30, 2019, at Long Beach, CA 90815. DON FESLER Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) NOTICE OF VIOLATION CITY OF NEWPORT BEACH Community Development Department Code Enforcement Division 100 Civic Center Drive, Newport Beach, CA 92660 949.644-3215 Number: 119-0464 Date: 02125/2019 Name of Owner or Business: TILDEN LEORA G G DAY LIVING TR PO BOX 310 MCCALL IDAHO,83638 An inspection of premises located at 101 VIA UNDINE INS in the City of Newport Beach, on 02/25/2019 revealed a violation(s) of the Newport Beach Municipal code. WARNING ONLY [ X] PREVIOUSLY ADVISED [ ] FINAL WARNING [ ] NEWPORT BEACH MUNICIPAL CODE SECTION(S) / DESCRIPTIONS OF VIOLATION(S) 1: MC 20.30.040 FENCES, HEDGES, AND WALL REQUIREMENTS PLEASE TRIM ALL HEDGES IN THE FRONT SETBACK TO A MAXIMUM OF 42". -THANK YOU. The City of Newport Beach recognizes that oversights occur and challenges come up. We encourage you to contact the Code Enforcement Division for questions about this notice or to request an extension of time if one is needed. We understand the importance of working together and appreciate your cooperation in this matter. THIS VIOLATION MUST BE CORRECTED ON OR BEFORE 03/04/2019. If the violation is not corrected by the date specified, an ADMINISTRATIVE CITATION may be issued and penalties will begin to accrue ($100.00, $200.00, AND $500.00) each day. Additional enforcement actions such as administrative citations, administrative penalties, prosecution and/or civil injunction may be utilized to correct this violation(s). A REINSPECTION WILL BE MADE ON OR AFTER THE CORRECTION DATE. IF THE CORRECTION(S) IS NOT COMPLETED AN ADMINISTRATIVE CITATION MAY BE ISSUED AND FEES WILL BEGIN TO ACCRUE. PRINT NAME OF OFFICER John Murray SIGNATURE OF OFFICER ��� OFFICER ID # 8137 Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) 'AwpoRr Request for Reasonable Accommodation O o Supplemental Information Required Community Development Department J` "0 Planning Division e r 100 Civic Center Drive / P.O. Box 1768 / Newport Beach, CA 92658-8915 (949)644-3204 �Q1P�IB�, Telephone 1(949)644-3229 Facsimile www.newportbeachca.gov To aid staff in determining that the necessary findings can be made in this particular case as set forth in Chapter 20.98 of the Municipal Code, please answer the following questions with regard to your request (Please attach on separate sheets, if necessary): Name of Applicant If provider of housing, name of facility, including (Mailing Address of Applicant) (City/State) (Zip) (Subject Property Address) Assessor's Parcel Number (APN) I. Is this application being submitted by a person with a disability, that pet-son's representative, or a developer or provider /of housing for individuals disability? / 2. Does the applicant, or individuals) on whose behalf the application is being made, have physical or mental impairments that substantially limit one or more of such pet -soil's 1nAlnr hfe AC}iylrlP.C? If cn ntease state the 3. From which specific Zoning Code provisions, policies or practices are you seeking an exception or modification? PA2019-050for RA2019-ool 101 Via Undine Rhonda and Rex Moore c Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Height (PA2019-050) 1�Moore �Hedge Commun; Development Department-1ry r ° ' Planning Permit Applir-`a for RA2 g,9-0a1 a o " PA2019-050 <r/FOaNn 101 Via Undine - t Rhonda and Rex Moore 1. Check Permits Requested: ❑ Approval -in -Concept - AIC # ❑ Lot Merger ❑ Staff Approval ❑ Coastal Development Permit ❑ Limited Term Permit - ❑ Tract Map ❑ Waiver for Do Minimis Development ❑ Seasonal ❑ < 90 day ❑>90 days ❑ Traffic Study ❑ Coastal Residential Development ❑ Modification Permit ❑ Use Pertnil-❑Minor❑Conditional ❑ Condominium Conversion ❑ OR -Site Parking Agreement ❑ Amendment to existing Use Permit ❑ Comprehensive Sign Program ❑ Planned Community Development Plan ❑ Variance ❑ Development Agreement ❑ Planned Development Permit ❑ Amendment -❑Cade ❑PC ❑GP ❑LCP ❑ Development Plan ❑ Site Development Review - ❑ Major ❑ Minor ❑ Other: ❑ Lot Line Adjustment ❑ Parcel Map 2. Project Address(es)/Assessor's Parcel No(s) Project Description and Justification (Attach additional sheets if necessary): l) rr' • � .1, Z' 7C% r � lZi'Gr" :rvi« W c� �E C �ti<ck h c',v 5 4. Applicant/Company Name Mal In Address E'� L City � �'t C:l 31,:2- ' (. Phone r 5. ContactlCompan N�a�me I Mailing Address 1lIIL u City L Phone 6. Owner Name ¢ Mailing Address City state I C Fax I Email /] state J Fax =I Email I J state Faxj- Er Suite/Unit 7. Property Owner's Affidavit*: (1) (We)1-4 &- jZ_F(` 1'_ / _ __ depose and say that (I am) (we are) the own r(s) of the properly (ies) in ived in application. (1) (We) further certify, under penalty of perjury, that the foregoing statements and answers herein contained and the information herewith submitted are in all respects true and correct to the best of (my,) (our) knowledge and belief. Signature(s): ' �� .` Tide: Date: 6 I of ena Signature(s): Title: Date: "May be signed by the lessee or by an authorized agent If written authorization from the owner of record is filed conc e application. Please note, the owner(s)' signature for Parceirrract Map and. Lot Line Adjustment Application must be zed. rV F:lUeom CODOhomd'AdlnWlmNnp OWIFbnWppliuponsWPAwpm_Gp nos"nMlp Pima RppNmW-CDP WM.dau Rev. oln/7 ' Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) FOR OFFICE USE ONLr Date Filed: 03-12-19 ❑ 2700-5000 Acct. NO FEE CHARGED APN No: 423 251 14 ❑ Deposit Acct. No. Council District No.: 1 For Deposit Account: General Plan Designation: RS-D Fee Pd: Zoning District: R-1 Receipt No: Coastal Zone: © Yes ❑ No Check #: Visa ❑ MC ❑ Amex ❑ # ❑ CDM Residents Association and Chamber Community Association(s): Lido Isle Community Assoc. Development No: D2019-0305 Project No. PA2019-050 Activity No: RA2019-001 Related Permits: APPLICATION ❑ Approved ❑ Denied ❑ Tabled: ACTION DATE ❑Planning Commission Meeting ❑Zoning Administrator Hearing ❑Community Development Director Remarks: APPLICATION WITHDRAWN: Withdrawal Received (Date): APPLICATION CLOSED WITHOUT ACTION: Closeout Date: Remarks: Z.3 F:1Users%PLNiShared%Staff_DitAGarciamay%RuhyldesktoptDESKrOP_\CUT PASTE _DRAG _CO x Updated 08/15/17 Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) Application Number 4. Please explain why the specific exception or modification requested is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy the residence. Please provide documentation, if any, to support your explanation. (i��Q(t.SP_ .. ylI fj)F,ti (�r^fl s• 5. Please explain why the requested accommodation will affirmatively enhance the quality of life of the individual with a disability. Please provide documentation, if any, to support your explanation. IJa4x-, 5-cr,rlfx1- Fyn 6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Please ` provide documentation, if any, to support your explanation. nll fe S'� -er f�1elo+— ()leS-e 7. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary to make your facility economically viable in light of the relevant market and market participants. Please provide documentation, if any, to support your explanation. 8. If the applicant is a developer or provider of housing for individuals with a disability, please explain why the requested accommodation is necessary for your facility to provide individuals with a disability an equal Opportunity to live,in a residential setting taking into consideration the existing supply of facilities of a similar nature and operation in the community. Please provide documentation, if any, to support your explanation. lease add any other information that may be helpful to the applicant to enable the City to determine whether findings set forth in Chapter 20.98 can be made (Use additional pages if Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) "Request for Reasonable Accommodation" 4. In order for_to live in our home at 101 Via Undine must have a resonable accomodation of a 6 foot hedge to provide privacy and safety from the strada . needs to be able to go in and out ofEroom without feeling the presence of the people walking by, neighboring homes with lighting turning on and off, and other 5. The hedge surrounding the perimieter of our side and on 101 Via Undine provides -with privacy and safety that will enables=to go outside as does not leave the home most days. On days when0chooses to stay in■rooman have the sliding doors open and still fell safe from the barrier provided by the hedge. There is a constanf flow of foot traffic byE room from the strada all day long due to the main beach and lido clubhouse being located directly across the street. is denied 11 not be able to sit out side or perform any ,ities as will feelfihas NO orivacv. twill not be able N by the strada to the fullest offability. Thank you - Rhonda Moore 101 Via Undine 2p19.09 1 5� JOT RP P p30 � a Undtpeex 000te Rh°nda and a area Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) "Request for Reasonabk; Accommodation" 9. We are asking the City of Newport Beach to approve our request for "Reasonable Accommodation" to allow us to maintain our existing hed a above the 42 inch city limit in order to allow —to fully ujUije our side yard. has a leaal disability of We would like to provide the outdoor side yard of our home on 101 Via Undine, Lido Island for -to be able to enjoy a PRIVATE and SAFE area outside bedroom. At this time the hedge serves as a protective barrier from the people walking up and down rin the strada nei hbohomes I okin in id an li hts comin into indow in the evenings. We believe has the right to enjoy outdoor space wfth the protection and privacy a 6 foot hedge will offer. As stated by the Americans Disability Act, if you have a Thank you for your time and consideration in this private matter. Rhonda Moore 101 Via Undine CA 92663 our i-4 Hearing Officer.- 4y,3d,,2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) CALIFORNIA TITLE OMPANY, 040, GLMO '/30/2019 02:30PM NWJU RANGE 2018-19 TAX ROLL ITERED APN: 423-251-14 APN: 423-251-14 INVESTIGATIVE SEARCH RESULTS CUSTOMER SERVICE REQUEST ONLY PAYMENTS AS OF 07/19/2019 SEARCH PARAMETERS ORANGE, CAI PAGE 1 OF 11 TRA: 07-001 - CITY OF NEWPORT BEACH DOC#: 2016-27931 LEGAL: TRACT 907 LOT 252 SITUS: 101 VIA UNDINE NEWPORT BEACH CA 92663-5514 MAIL: PO BOX 310 MCCALL, ID 83638 ASSESSED OWNER(S) 2018-19 ASSESSED VALUES G DAY LIVING TR LAND 92,525 TILDEN LEORA G TR LEORA IMPROVEMENTS 74,343 TAXABLE 166,868 2018-19 TAXES 1ST INST 2ND INST TOTAL TAX STATUS PAID PAID PAYMENT DATE 10/23/2018 10/23/2018 DELINQUENTDATE 12/102018 04/10/2019 INSTALLMENT 1,064.75 1,054.75 2,109.50 PENALTY 105.47 128.47 233.94 BALANCE DUE .00 .00 .00 ASSESSMENT DETAIL CODE # TYPE AMOUNT JURISDICTION Al ALL PROP AV TAX 1.753.50 BASE TAX U4 OCSD SEWER USER FEE 335.00 ORANGE CO SANITATION DIST (OLD OCS C7 MWD WATER STDBY CHG 11.60 MWD-MWDOC WAS CMWD ORIG AREA 12059 BA MOSQ,FIRE ANT ASSMT 7.48 ORANGE COUNTY VECTOR CONTROL DISTR B3 VECTOR CONTROL CHG 1.92 ORANGE COUNTY VECTOR CONTROL DISTR 2,109.50 TOTAL OF SPECIAL ASSESSMENTS ADDITIONAL PROPERTY INFORMATION COUNTY USE CODE: SFRSD STANDARD LAND USE: SFR END OF SEARCH Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) 1,0 Recording Requested By And When Recorded Mail To: Edward D. Ahrens, P.C. Ahrens DeAngeli Law Group LLP P.O. Box 9500 Boise, ID 83707-9500 Phone: (208)639-7799 Fax: (208)639-7788 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 12.00 III�IIIn�111��I0 NNN0 2 9 6 1�lll�lt� 20160000279312:0 pm 01121116 217 422 G02 F13 2 0.00 0.00 0.00 0.00 3.00 0.00 0.00 0.00 Documentary transfer tax: $0 No tax i wed a ause 's a transfer to a trust not pursu .a s Signature of Declarant or Agent Determining Tax: Ahrens DeAngeli Law roup LLP Tr Revenue and Taxation Code: 11930 V Grant Deed Jf Leona G. Tilden, Trustee of the LGT Newport Beach Residence Trust, "Grantor," a trust i Y` established under the laws of the State of Idaho by an agreement dated May 5, 2005, for good and valuable consideration, the receipt of which is hereby acknowledged, does hereby grant, transfer and convey to Leora G. Tilden (formerly known as Leora G. Day), Trustee of The Leora G. Day Living Trust, U/T/A dated July 15, 1992, as reformed and restated, whose current address is P.O. Box 310, McCall, Idaho 83638, "Grantee," all of Grantor's interest in the following described real property located in Newport Beach, Orange County, California, more particularly described as follows: Lot 252 of Tract No. 907 as shown on Map recorded in Book 28, pages 25 to 36 inclusive of Miscellaneous Maps, Records of Orange County, California, Mail tax statements to: Leora G. Tilden, Trustee of The Leora G. Day Living Trust P.O. Box 310 McCall, ID 83638 - --- ---HGaF Aq QffiGGF--July-31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) TOGETHER WITH all improvements, easements, hereditaments, and appurtenances thereto, and all tenements, reversions, remainders, rights -of -way and water rights in anywise appertaining to the property herein described. SUBJECT TO taxes and assessments for the year 2015 and all subsequent years, and to such rights, easements, liens, encumbrances, covenants, rights -of -way, reservations, restrictions, and zoning regulations as appear of record or based upon the premises, and to any state of facts an accurate survey or inspection of the premises would show. APN: 423-251-14 IN WITNESS WHEREOF, the Grantor executes this instrument solely in their fiduciary capacity. Any further recourse hereunder is to be only against the aforenamed trust. DATED this 21" day of December, 2015. STATE OF IDAHO ss. COUNTY OF ADA The LGT Newport Beach Residence Trust, U/T/A dated May 5, 2005 By: Leora G. Tilden, Trustee "Grantor" On December 21, 2015, before me, the undersigned, Notary Public, personally appeared Leora G. Tilden, Trustee of The LGT Newport Beach Residence Trust, U/T/A dated May 5, 2005, - known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same for and on behalf of said trust. «« TNESS WHEREOF, I have hereunto set my hand and affixed my official seal the t above written in this certificate. pRY � • ICC) `G If Notai ub is for Idaho PUBS r ission expires: / Grant Deed 300 Hearing Officer - July 31, 2019 Item No. 1 h Additional Materials Received Moore Hedge Height (PA2019-050) II ,r aV• rrr �; .d v IW :: }J 1 t�,l+, f � � ,i� i f r t'a",t•�,+r Ya �,+,,fi� ,'t� �: :w ,'i �... �r4y' t ? 4 v I: l I . ✓ f r7 P- t 4 y r , S •, "I r � x • S d _! Y (i a ee Item No. 11 Additional Materials Received at Meeting Moore Hedge Height (PA2019-050) Lido Isle Community Association Statement (LICA) Originally when Lido Isle was developed the thought was the Stradas would be the front doors for the houses built and the street side would be the garage side of the house. As it developed over the years it was found property owners preferred to put their Front doors on the street side and most of these properties used the stradas as the rear yard of the properties. The home owners found they needed some privacy in what they perceived as their back yards. The CC&R requirement of 30" on hedges was insufficient. In 2002 mI the LICA board after much discussion with home owners decided to increase the hedge heights to 60" which was agreed upon because it allowed general privacy, but still allowed a clear space under the 84"height trees were trimmed to off the ground. This provided a 2ft clear view through the strada from one end to the other. A vote was taken among all the property owners on the island to amend the CC&Rs and it passed by a wide majority to raise the hedge heights to 60" and trim trees to 84" off the ground. The LICA board instructed its attorney to file this amendment with the County of Orange and this was accomplished April 15, 2002. LICA at this point took it upon itself to police this amendment to the present time. It was not Known until a few years ago the city of Newport Beach had its own strada ordinance of 42". The city had not been enforcing it and it only came to light because of a law suit between the Moores and the Fesslers. The Moores put in hedge plants of about 60" high and the Fesslers objected stating it block their view of the beach and the water. The Fesslers filed suit and during this suit this different ordinance came to light. The city refused to enforce its ordinance because the Moores had only planted individual plants and thus was not a hedge yet. The Fesslers dropped the suit, but now that Item No. 11 Additional Materials Received at Meeting Moore Hedge Height (PA2019-050) the plants have grown together, they have asked the city to enforce its ordinance. In the mean time the city has taken a stance it would only enforce the ordinance if a complaint was made. As it turns out there are over 100 hedges on stradas of Lido 60" high. Most of these have been there for the last 17 years. Obviously problematic for the city. LICA has been working with the Mayor Diane Dixon to change the city ordinance. We have presented all the documents of the 2002 amendment and the county filing. She feels we will be able to accomplish this possibly in the September Council meeting. LICA does have compassion for the Moores disabled son and supports the Moore's attempt to raise the hedge height but only to our CC&R amendment of 60". This provides adequate privacy and was not arrived at flippantly. I am 62" when standing in the concrete walkway of the strada and considering the width of the hedge cannot see anyone sitting down in that 10'ewide residential area. LICA disagrees with the Page 7 of the staff report "the existing public view that is afforded south down Strada Triest and across Via Lido Soud towards the beach on the bay will not be impacted" If the hedge is raised to 78" and the trees are trimmed to 84", this only leaves 6" of what should be 2 ft. Since the Moores are on the end of the Strada at Soud all homes north of them on their side of the Strada would be impacted. No longer having that clear view. Addionally there many elderly people living on the various stradas of Lido, many with disabilities LICA is afraid if this 78" accommodation is made there will be a litany of other requests for the same. Eric Henn Lido Isle Community Association - President Page 1 of 1 Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) Ed Johnson From: "Rhonda Moore" Date: Monday, July 29, 2019 4:40 PM To: Attach: 2019-07-29 16-15.pdf Subject: 7/31 Hearing PA2019-050/1Jnder Seal Dear Honorable Hearing Officer, Mr. Johnson - Please keep the attached records under seal to protect the Dr. and patient relationship. I am the Mother of Moore and am sending you supporting documents for our reasonable accommodation. Please confirm by email you received this email and let me know if you need additional information. Thank you for your consideration and respect for my son's privacy concerns. Rhonda Moore Sent with Genius Scan for iOS. httas:Hdl.talayy.com/p-enius-scan Rhonda Moore 7/31/2019 ��` F UC Irvine Health Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) JURY DUTY EXEMPTION 5/9/2019 Moore To Whom It May Concern: Mr. Moore is unable to serve on jury duty due to a chronic medical condition, Please, call our office if you have any questions or concerns. Thank you. Physician Signature: Physician Name: Rimal B. Bear, MD, UC Irvine Health LICI BIRCH PSY AND HUMAN BEH 20350 Sw Birch St Suits 110 Newport Beach CA 92660-1725 TEL:714,456.5902 FAX:949-250-0177 Pape 1 of 1 Social Securit Admi - stration Hearing Officer - a2019 y Item No. 1j Additional Materials Unsealed by Heearringg Officer Supplemental Sec city Income Moore Hedge Height (PA2019-050) SOCIAL SECURITY SUITE B — —� 17075 NEWHOPE STREET FOUNTAIN VALLEY, CA 92708-4299 Date: November 27, 2018 SIB— - MOORE 101 VIA UNDINE NEWPORT BEACH, CA 92663- 514 Dear. MOORE You have been found to meet thgmedical requirements to receive Supplemental Security Income benefits . Before we can regin your payments, we need some additional information from you. We have scheduled you for an Because of your medical conditic that you have someone help you a trusted relative or friend that to the office will complete an api should bring a picture I.D. with For general information about S www.socialsecurity.gov on the It our case ou may call us toll-& 77-304-6994 nd ask for Ms. are de' or and of hearing, you visit an office, please have this I �.' 5� � soa/d in our office on December 5, 2018 at 10:30am. the medical examiner for your case has recommended th managing your benefits and paperwork. Please bring ald be willing to help you. The person you bring with you ation to become your representative payee. This person al Security we invite you to visit our website at rnet. For general questions and specific questions about at 1-800-772-1213, or call your local Social Security office tie a caC( an answer most questions over the phone. If yoL y call our TTY/TDD number 626-569-7527. If you do call i �r with you. It will help us answer your questions. A16riw-rratiox Jill6 CPA I air I- ?7: : AV- . ©� � ?� . \/���\ .§: / Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) To: HEARING OFFICER Subject: FW: 101 Via undine.... filed, please forward to Ed Johnson Attachments: J3FCRwP4Taa6jM1SEHSrKAjpg; 55xDA+tARwgjgSF3jgMpSQjpg; CTpu90uSRcCSyE6AHjFl8Qjpg;jgVd45KGR3iYjzOgYydO3Qjpg; Re_ 101 Via undine.... filed, please forward to Ed Johnson.pdf -----Original Message ----- From: Manal Bozarth <manal@manalre.com> Sent: Thursday, August 1, 2019 4:16 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov>; 'Manal Bozarth' <manal@themcmonigleteam.com> Cc: Murillo, Jaime <JMurillo@newportbeachca.gov>; Garciamay, Ruby<RGarciamay@newportbeachca.gov>; Lee, Amanda <ALee@newportbeachca.gov> Subject: Re: 101 Via undine.... filed, please forward to Ed Johnson As promised, attached are the pictures I took 7/30/19 (Tuesday) regarding the corner hedge height ( breaking the height limit). I wanted to add a couple of closing points in the meeting in response to Mrs. Moore's closing statements that didn't add up in my head: 1) She states her son "is" disabled. If I had a disabled son, I would use all "alternative" areas (bedroom and courtyard) to accommodate his need. And ... if he is ,truly disabled and cannot be around people then he would be very happy in a "secluded" courtyard with tall walls around him and a serene fountain (to drown the noise people, children, animals, gardeners, etc. make). I am assuming this type of disabled person would not feel "forced' (as her attorney said) ... they would welcome the space. 2) She also stated she wanted to enclose that Strada so her son would not worry about a dogs jumping over the hedges ... if this is the case, then the current 42"(safety triangle hedge) would "allow" a dog to jump in, so raising the hedge would not make this space "safer"'. Again, a statement that shows this case is not adding up. 3) Another fact that Mrs. Moore said, is her son likes to smoke outside. When I thought about this, it sounds like the owner (or current residents) of the property do "not" want smoke in the house, I am assuming if someone is smoking in the courtyard which opens into the living room, that would easily allow smoke in main living areas of home. To solve this problem; their son is "required " to smoke off the Strada area and they decided the hedge needs to be higher for smoking area. If we all could change the code because of our needs, then why do we have city codes? In my opinion, the main question of this case: 1) Is their son disabled? Even if their son "is" disabled, then he uses "alternative" areas and the Strada hedge is cut to 42" (city code). As traffic officers say, just because most cars are speeding, it doesn't mean you can break the law and not get a speeding ticket. On 7/31/19, 1:10 PM, "Whelan, Melinda" <MWhelan@newportbeachca.gov> wrote: Good Afternoon Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) Good Afternoon, Due to staff scheduling on Friday, please make sure to submit any additional material for the Hearing Officer via email to myself and please copy the following staff who have also been copied on this email. Thank you. Ruby Garciamay rarciamay@newportbeachca.gov Amanda Lee alee@newportbeachca.gov Jaime Murillojmurillo@newportbeachca.gov MELINDA WHELAN Assistant Planner Community Development Department I Planning Division mwhelan@newportbeachca.gov 949-644-3221 CITY OF NEWPORT BEACH 100 Civic Center Drive, Newport Beach, California 92660 1 newportbeachca.gov f e'Q 1 4 1 e s �. r rf N� • 'W r, a �l fz-�� �i. 00, .W IL ' r 47 ' ` — 1 k �Z— Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Cc: Murillo. Jaime Subject: FW: PA2019-050: for Hearing Officer Johnson re appeal procedure Date: Friday, August 2, 2019 11:13:22 AM Please submit to the Hearing Officer as correspondence received after meeting. From: Jim Mosher <jimmosher@yahoo.com> Sent: Thursday, August 01, 2019 5:42 PM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: PA2019-050: for Hearing Officer Johnson re appeal procedure Melinda, Since I missed the first hour of the Moore Hedge Height Reasonable Accommodation No. RA2019-001 hearing (PA2019-050), I did not fully understand the context, but from Hearing Officer Johnson's final remarks I gather there had been some question as to whether the next step for parties unhappy with his decision would be an appeal to the City Council or a request for review by the Superior Court. Mr. Johnson cited NBMC Sec 20.52.070.D.1.c: "On review the Council may sustain, reverse, or modify the decision of the Hearing Officer or remand the matter for further consideration, ..." as evidence that the City Council would be the proper reviewing body. He could also have cited NBMC Sec. 20.52.070.D.7: "Effective Date. a. A reasonable accommodation shall not become effective until the decision to grant the accommodation shall have become final by reason of the expiration of time to make an appeal. b. In the event an appeal is filed, the reasonable accommodation shall not become effective unless and until a decision is made by the Council on the appeal in compliance with Chapter 20.64 (Appeals)." Or Table 5-1 ("Review Authority") in NBMC Sec. 20.50.030, which clearly states the appeal body for all Hearing Officer decisions under Title 20 is the City Council, and includes footnote "(2) The Council is the final review authority for all applications in the City." This was the intent when Title 20 was adopted by Ordinance No. 2010-21. See pages 175, 199 and 236. Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) However, since 2015, the appeal body for Title 20 Hearing Officer decisions has actually been intended to be the Planning Commission (with possible additional appeal from them to the Council) per NBMC Sec. 20,64,020 : "Decisions of a Hearing Officer may be appealed or called for review to the Planning Commission." And the appeal is to be heard "de novo" rather than being limited to verifying that the Hearing Officer based his decision on "substantial evidence" (which was the former standard on appeal). At least, that is what the Council was told when they adopted Ordinance No. 2015-8 revising the procedure and allowing "calls for review." See the "Chain of Review" showing "Hearing Officer --> Planning Commission --> City Council" and the written explanation on page 3 of the staff report when Ordinance No. 2015-8 was introduced as Item 20 on April 14, 2015, as well as Slide 3 in that night's presentation to the Council. Unfortunately, the Council was not shown the totality of Table 5-1, so they did not notice that although the footnote about "substantial evidence" had been deleted, the Planning Commission had not been added to the body of the table as the new appeal authority. Nor were they shown the whole of Section 20.52.070, so they did not notice the continuing references to the Council in sub -parts D.1.c, D.7.b, and E.4. The result is a confusing mess with Table 5-1 contradicting Sec. 20.64.020 and inexplicable references in Section 20.52.070 to the Council as the expected review authority. As Hearing Officer Johnson said, "it is what it is," but as the Council was told when these confusions were created, the current intent is for Sec. 20.64.020 to control, requiring Title 20 Hearing Officer decisions to be appealed (de novo) to the Planning Commission, and for the Planning Commission's decision to go on (de novo) to the City Council (as the final review authority before the Superior Court) only if the Planning Commission's handling of it was appealed. Yours sincerely, Jim Mosher Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) POST -HEARING DECLARATION OF DON FESLER 1, Don Fesler, declare: 1. The matters stated herein are within and based on my personal knowledge, are true and correct, and if called as a witness, I could and would competently testify thereto under oath. 2. As I testified, I estimated the size of that interior patio based upon comparing it to the gravel area which is surrounded by the hedge at issue. 1 know that setback area to be 10 feet wide, and it appears more narrow than even the narrowest part of the interior patio, and only about one-half as wide as the wider part of the patio. It also appears that the interior patio is about twice as long as the setback area is wide. Thus, it was and remains my estimate that, at its narrowest point, the interior patio is more than 10 feet wide and at least 15 feet long. NOW. THERE IS NO QUESTION THAT THE MOORES' APPLICATION IS A SHAM. 3. During my 44 years of jury trials, defending doctors in more than 150 cases, one thing stood out: One way or another, the truth most often surfaced. That happened during this hearing. The testimony of Rhonda Moore demonstrated that the Moores latched onto the City's process for reasonable accommodation as a way to avoid complying with the zoning standards for hedge height that they have long intended to ignore. They are using any disability their son may have for only one reason: so they can grow their hedge as high as they'd like it to be. As set out below in greater detail, Rhonda Moore did not dispute that her son engages in activities that put him in situations from which she and Dr. Bera had claimed he needs to be shielded. And, she offered nothing to dispute that there is a nice -sized interior patio available for his use that is open to both air and light, as well as an interior bedroom that provides total protection from exposure to the sights or sounds of either the street or the strada. In fact, she provided no evidence to counter any of the facts provided by my wife, Roberta Fesler, and me in our Declarations and our live testimony. Also discussed below, as I suspected from the beginning, the idea for a 78-inch hedge originated with Rhonda Moore — not with Dr. Bera or any other medical professional. It was her idea, and all she did was ask him to write a letter supporting what she wanted. Finally, as set forth below, Rhonda Moore's testimony inadvertently revealed the real reason she wants an outdoor area for her son: he smokes out there. It's obvious Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) that she does not want him to smoke in the house, or in the interior patio which opens into the house, because either she personally wants to keep cigarette smoke from the interior part of the house, or the owner of the home, Mrs. Leora Tilden, has forbidden anyone from smoking in the interior of the home. 4. First, Rhonda Moore admitted that her son did engage in the activities chronicled in the written and live testimony provided by both my wife, Roberta Fesler, and me. After our live testimony, Hearing Officer Edward Johnson asked Mrs. Moore 2 times to address the allegations that people have seen her son doing able-bodied activities. (City's Recording of Hearing at 1:42 and 1:44) The first time she is asked, the only responsive statement she made is at 1:44:06: "They may have seen my son. Absolutely. May have seen him walking ... The whole idea is to get him out..." When asked again (at 1:44), her testimony did not even address the question. So, the record before the Hearing Officer is undisputed: the disabled individual at the center of this Application frequently, routinely, and voluntarily places himself into situations that create opportunities for even greater exposure to the "triggers" for which he supposedly needs the protection of a hedge nearly twice as high as the law allows. Thus, he doesn't need whatever protection a 78-inch hedge might provide. 5. Second, even though Hearing Officer Johnson specifically provided the Applicants the opportunity to factually respond to "...any testimony that you have heard" (at 1:50), neither Rhonda Moore nor her attorney offered one word to dispute the evidence about the availability and features of the enclosed patio or the middle bedroom. So, the only evidence in the record before the hearing officer is that this home already provides the type of shelter from "triggers" that Dr. Bera claims the disabled son needs, meaning a lawful exemption from the 42-inch hedge height limit is not "necessary," as required by the law governing reasonable accommodations. 6. Third, starting around 1:46, Rhonda Moore begins explaining how this Application for Reasonable Accommodation real) took flight. She testified how, after she learned about the City's ordinance regarding reasonable accommodations, she hit upon 6 and '/z feet as a good height for the hedge. "And, you know what? At 6 feet, I think, 'Perfect! He's 6 feet.' But, then I remember that people who are taller than 6 feet walk around a lot, and I think, 'No, let's go 6-5.' So, I say to the doctor, Bera ...He says, 'Perfect! Let's do it! Not an issue. What's the issuer [I respond] I don't know.' I said, right when I got there, these were my intentions — to put in some hedging..." As her own words prove, when confronted with the distinct possibility that the hedge would finally have to be trimmed to 42" and she and her husband could no longer escape complying with the same law that applies throughout the City, she decides how high she wants the hedge to be, and she presents her plan to Dr. Bera, who is more Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) than happy to oblige her by writing the letter which was submitted as the support for the need for the hedge.' His letter contains Rhonda Moore's opinion. 7. Fourth, Rhonda Moore accidentally revealed the real reason she wants her son to use the gravel area instead of the interior, enclosed patio: she doesn't want her son smoking inside Mrs. Tilden's house or on the interior patio, tarnishing the home. She testified her son uses the gravel area surrounded by the hedge as a place to smoke (at 1:46 and 1:47). In fact, I have seen the Moores' son do exactly that, smoking in subject enclosure while he was on his cell phone, and dressed as I had always seen him, in a white T-shirt and a black baseball like cap. Thus, consistent with my jury trial career, the truth finally won out. The evidence Rhonda Moore did and did not provide clearly shows that the Moores' Application is a sham, intended only to try to avoid cutting down their hedge to 42' required under the City's Municipal Code. EVEN DR. BERA'S FARSICAL LETTER STATES THAT THE APPLICANTS' HEDGE NEED NOT BE 78-INCHES ALONG ITS ENTIRE 8. Again reading Dr. Bera's farcical letter, he said a 78" hedge is needed only in front of the Applicants' son's bedroom and bathroom. Even if the letter represented his opinion, as opposed to Rhonda Moore's, and there was any reason to believe he had been advised that a 10' portion of the hedge could legally be no more than 36" (allowing direct exposure to and by the passing world), his letter cannot be said to support a claim that the entire length of the hedge must be 78". I Given Rhonda Moore's testimony, it is clear that the evidence surrounding the preparation of Dr. Berg's letter is not protected by the physician -patient privilege. She is not Dr. Bera's patient, at least not for these purposes. Any claim that her conversation with Dr. Berg is nonetheless privileged, because, for example, it was done in her capacity as a legal representative for her son, is unavailing to protect the records from release. Acting in that same capacity, her public testimony recounting the conversation between Dr. Bera and her waives the physician -patient privilege. Either way, the medical records either never were or are not now legally privileged, and should be made a part of the record of this proceeding. There is no legal basis to deny my wife, me, nor anyone else adversely affected by an approval of the requested reasonable accommodation our due process rights to access those records. Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) Based on my tours of Mrs. Tilden's home, I recall that the bedroom and bathroom were, at most, no longer than 15 feet in total length. Thus, even if there were any basis to follow the so-called opinion in Dr. Bera's letter, which there is not, a stretch of only the 15' of the hedge directly outside of the bedroom and bathroom should be permitted to reach the 78" height. 9. Of course, if one followed Dr. Bera's unfounded, conclusory letter, that would indisputably create a blight at the Tilden home and the area of Lido Isle seen most frequently by the greatest number of people and guests — the area directly across from the beach, the clubhouse, and the bay. It would be the only hedge on Lido Isle with that configuration at a unique location like this. IV. RHONDA MOORE'S PHOTOGRAPHS ARE TOTALLY IRRELEVANT. 10. Rhonda Moore's three photographs are totally irrelevant. They show only that some hedges are more than 42"in height and that others are not. So what? There are not any other hedges on Lido Isle that are located at a unique location like this. Absolutely none. V. THE CITY HAS ESTABLISHED PRECEDENT THAT A REASONABLE ACCOMMODATION IS TO BE DENIED WHEN AN ALTERNATIVE MEETING THE NEEDS OF THE DISABLED PERSON IS AVAILABLE. 11. Attached is a copy of H02013 —001 (Bakman), one of the two decisions denying an Application for Reasonable Accommodation made to the City because an alternative solution was available to meet the needs of the disabled person. (The other decision my wife mentioned was rendered by Hearing Officer Johnson, so he requested only a copy of this one be provided to him.) 12. The City's own interpretation of its Municipal Code section providing for reasonable accommodations mandates that this Application be denied, as the evidence in the record clearly proves there are existing alternatives available to meet the proferred needs of the Moores' disabled son. VI. THE REQUESTED REASONABLE ACCOMMODATION IS NOT AVAILABLE UNDER APPLICABLE LAW 13. Raising the height of a hedge to exceed the lawful limit is not within the provisions of the applicable law governing a local agency's responsibility to provide for reasonable accommodations. As stated at the hearing, 42 USC section 3602(b) defines "dwelling" Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) as "any building, structure, or portion thereof ..." Neither the outdoor gravel area nor the hedge at issue fall within that definition. Thus, there is no legal authority to provide a reasonable accommodation which allows a hedge to grow higher than the 42 inches set out in the Municipal Code. vil. REQUESTED RESOLUTION AND ORDER 14. Considering all the evidence that has was admitted at this hearing: A. The Moore's sham Application should be denied. B. The Moore's should be required to do the what they were told to do by the City's Notice of Violation - cut their entire hedge down to 42 inches. 16. 1 declare under penalty that all the matters stated herein are true, and that this Declaration was signed on August 2, 2019, in Long Beach, CA. DON FE LER Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) RESOLUTION NO. H02013-001 A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING REASONABLE ACCOMMODATION NO. RA2011-002 FOR ADDITIONS TO AN EXISTING TWO -UNIT RESIDENTIAL STRUCTURE TO ACCOMMODATE A DISABLED PERSON, LOCATED AT 219 DIAMOND AVENUE (PA2011-118) THE HEARING OFFICER FOR THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. Chapter 20.52 of the Newport Beach Municipal Code (NBMC) sets forth a process to provide reasonable accommodations in the City's 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. 2. An application was filed by Jane Bakman, property owner;, with respect to property located at 219 Diamond Avenue, and legally described as Lot 28, Block 10, Section Three, Balboa Island Tract, requesting accommodation from the requirements of Newport Beach Municipal Code (NBMC) Section 20.18.030, (Residential Zoning Districts Land Uses and Permit Requirements) to allow additions and alterations to an existing two -unit dwelling in excess of the floor area limit. 3. The .subject property .is .located .in .the .R-BI (Two -Unit RRSidentia_l, Balboa. hsland) Zoning District. 4. A public hearing was held on May 30, 2013, in the Balboa Island Conference Room, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the NBMC and other applicable laws. Evidence, both written and oral, was presented and considered at this meeting. 5. The hearing was presided over by Hon. John C. Woolley, retired Judge (California Superior Court, Orange County), Hearing Officer for the City of Newport Beach. Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach I fearing Officer Resolution No. 1102013-001 Ralvnan Accommodation (219 Diamond Ave) Page 4 of 4 Facts in Support of Finding: The property is occupied by a duplex which is consistent with the zoning district in which it is located. The addition would be constructed in accordance with the required Building and Safety Code, therefore, the proposed project would not pose a threat to the health or safety of other individuals or substantial physical damage to the property of others. As Finding No. 2 cannot be made, the reasonable accommodation must be denied. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies Reasonable Accommodation No. RA2011-002. Section 2. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, DENIED AND ADOPTED THIS W DAY OF MAY 2013. Y{ Ho ohri t. Wool y, reti d Judge (California Superio Court, Orange County) Hearing Officer forthe City of Newport Beach ATTE ST: - NLt= City Clerk Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach Hearing Officer Resolution No. H02013-001 Bakrnan Accommodation (219 Diamond Ave) Page 2 of 4 SECTION 2. CAUFORNIA ENVIRONMEhITAL QUALITYACT DETERMINATION. This project 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. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(bl.(3) of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. SECTION 3. FINDINGS, In accordance with Section 20.52.070 (D.2) of the Newport Beach Municipal Code, all of the following. findings must be made in order to approve a reasonable accommodation: Required Finding: The requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Fact in Support of Finding: The applicant submitted a statement signed under penalty of .periunt that the .property will be occupied by a person with a disability and requires accommodation. A letter from Dr. Kanwar T. Mahal was received and considered by the Hearing Officer, At the request of the applicant, Jane Bakman, the Hearing Officer ruled that the report from the doctor remain confidential. The Hearing Officer finds that there is no factual basis for the medical condition presented in the physician's letter for the conclusions regarding the Reasonable Accommodation. 2- Required Finding: The requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts Do Not Support the Finding: a. An accessible bathroom is currently provided by the existing ground floor bathroom. Any modifications necessary to make the existing. bathroom accessible can be accommodated within the existing permitted floor area. b. The proposed 189-square-foot breezeway addition proposed is in excess of that necessary to provide an accessible bathroom. C. With consideration of the factors provided by NBMC Section 20.52.070 (D-3), the requested accommodation is not necessary to provide the disabled individual an equal. opportunity to wse atrld. arijoy a. dwe-Wrig- The Justification. presented. doe,. Hearing Officer - July 31, 2019 Item No. 1 k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach Hearing Officer Resolution No. H02013-001 Bakman Accommodation (219 Diamond Ave) Page 3 of 4 not sunoort the.nr000sed size and location of the additions that are the subiect of the accommodation request. 3. Required 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. Fact in SUP..Dort of Finding: Allowing the construction of additions to the dwelling unit would not impose an undue financial or administrative burden on the City. The administrate costs of processing the building permit will be offset by normal building permit fees. 4. Required Finding: That the requested accommodation will not result in a fundamental alteration in the nature of a City program, as "fundamental alteration"is defined in Fair Housina Laws and interpretive case law. Facts in Support Finding: a. The proposed floor area is consistent with surrounding residential properties with similar sized structures which may also exceed allowed floor area. The request to exceed the floor area is not related to the use of the property, which remains residential. The mass and bulk of the proposed structure will be .within the perimeter of the existing building footprint and will not be discernibly abrupt in scale from the surrounding structures which may comply with the floor area limitations. b. The proposed additional square footage would not intensify the existing two -unit residential use. Therefore, the increase in floor area would have no affect on traffic or oarkina. in the vicinity: although the .property is nonconforming with regard to parking since it only provides one parking space per dwelling unit. C. The increase in floor area would not conflict with the existing residential uses on site or in the neighborhood. d. There is no intention to operate the dwelling as a residential care facility. Thus, the granting of the reasonable accommodation request will not create an institutionalized environment. 5. Finding: 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. Hearing Officer - July 31, 2019 Item No. 11 Correspondence Received after Meeting Moore Hedge Height (PA2019-050) From: Whelan. Melinda To: Garciamay. Rubv; Lee, Amanda Cc: Murillo. Jaime Subject: FW: Moore Reasonable Accommodation Date: Tuesday, August 6, 2019 8:35:24 AM Attachments: Mr. Johnson final letter.odf Please add this to the correspondence received after the hearing. Thank you. Melinda From: Ed Johnson <edjohnson@sti.net> Sent: Tuesday, August 06, 2019 8:28 AM To: Whelan, Melinda <MWhelan@newportbeachca.gov> Subject: Moore Reasonable Accommodation Attached is a letter I received from Mrs. Moore yesterday. She requested that it be placed under seal and I denied the request. She nevertheless wishes to make it part of the public record. Please add it to the documents available for public review. Ed Johnson Administrative Hearing Officer ❑® Virus -free. www.ava.com Hearing Officer - July 31, 2019 Item No. 11 Correspondence Received after Meeting Moore Hedge Height (PA2019-050) To: Mr. Ed Johnson From: Rhonda Moore Date: 8/5/2019 Re: Reasonable Accommodation letter I am a Mom who is a mental illness advocate, who supports individuals and organizations who want prevention, early intervention, scientific research and cures for mental health problems. The people that have complained about my RA request are exactly the reason why people are afraid to come forward and ask for HELP. These people have made my life very difficult, they have tried very hard to diminish my reputation and challenge my good name. These people are completely ignorant to mental illness and intellectual disabilities. We are losing teens, adults and vets to suicide everyday in this country. It is people like this that make those afflicted feel ashamed, embarrassed and frightened and so they suffer in silence. My family has been put under attack for asking to keep my hedge ( that has always been 100% in compliance with Lido Island Association), so my son can enjoy sitting outside on a daily basis and feel protected . He has the right to be anywhere inside and outside of his home/property. These people are ignorant and discriminating against my son or any other person with a mental illness is illegal. The Fair Housing Act protects people from discrimination and specifically states it is illegal discriimination to "threaten, coerce, intimidate or interfere with anyone exercising a fair housing right." I am exercising my rights and do very much feel intimidated and harassed. The day that the property owners of 105 & 111 Via Undine circled our home over and over and took photographs of our home, I felt violated and harassed. I locked the doors. The Fair Housing Act also says the disabled person has the right to have the reasonable accommodation to allow reasonable modifications that may be necessary to allow persons with disabilities to enjoy their dwelling. I understand that my son's disability may not be obvious to the owners and renters at both 105 and 111 Via Undine, but NOT all disabilities are physical. I can assure you Mr. Johnson, this is not a "sham". I will not let these "bullies" scare me away and I will continue to protect our son, because I can assure that he can not protect himself. Thank you - Rhonda Moore Newport Beach resident for 31 years.