HomeMy WebLinkAbout07-31-2019_HO_Minutes_FINALNEWPORT BEACH HEARING OFFICER MINU T ES
100 CIVIC CENTER DRIVE, NEWPORT BEACH
NEWPORT BEACH CONFERENCE ROOM (BAY B-1st FLOOR )
WEDNESDAY, JULY 31, 2019
REGULAR MEETING -10:30 A.M .
I. CALL TO ORDER-The meeting was ca ll ed to order at 10 :38 a.m.
Present
Staff Present:
Edward J. John son , Hear ing Officer
Jaime Murillo , Senior Planner
Me linda Whelan , Assistant Planner
Armeen Kome il i, Deputy C ity Attorney
To ny Brine , City Traffic Eng in eer
II. PUBLIC HEARING ITEMS
ITEM NO.1 Moore Hedge He igh t Reasonable Accommodation No. RA201 9-001 (PA2019-050)
Site Location: 101 Via Undine Cou nci l District 1
T he Hearing Officer rev iewed the documents pro vided to him and the applicant's req ue st to place medi cal
info rmation under sea l. He found Ms . Moore's email submitting medical informatio n, tw o red acted letters
from the attending physician , a redacted letter from the Social Security Ad mi ni st ration reg arding
Supplementa l Secur ity Incom e, a redacted letter from UC Irvin e Health regarding j ury duty , and thre e
photographs are not confidentia l docum ents and did not seal them . Other docum ents pro vide d to him were
ordered sealed. They were : a letter to t he Hearing Officer from appli can t Rhon da Mo ore describing the
details of the disability; an unredacted lette r from the treating physician to the Hear ing Off ice r describi ng
the disabi lity; a second lette r from the treat in g phys ic ian containing detail s of the di sa bility ; a report from
UC Irvine Health describing medications and appointments ; a detai led descr ip t ion of the disabil ity
ch ara cteristi cs .
Meli nda Whe lan , As sistant Planner, provided a br ief project description stating that the ap plicant requests
reas onab le accommodat ion to allow a hedge along the perimeter of a front ya rd set bac k to exceed the
maxim um height lim it of 42 inches for fences , hedges, and walls. The subject property is developed with an
ex isting s ingle -family dwelling located on a corner lot at the intersect ion of Via Undin e and V ia Lido Soud.
The lot fr on ts a public walkway known as Strada Trieste . The property's frontage al ong th e strad a consists of
a 10-foot fr ont yard setback with an exterior yard area . The applicant reque sts accommoda tion to allow the
ex isti ng hedge to grow to a max imum height of 6 1/2 feet except for a site distance tria ng le at the intersecti on
of Strada Trieste and Via Lido Soud, where the max imum height of the hedge will be 36 inche s as req uired
by the Ci ty T raffic Engineer. A taller hedge wi ll provide the disabled resident wi th a more private yard area ,
which is lo cated outs ide the disabled res ident's bedroom . The disabled resid en t's phy sici an, Dr. Bera ,
re comm end s an increased hedge height in that it wi ll provide the disab led res ident wit h privacy and allevia te
se vere symptoms triggered by passing pede strians, gardene rs, construction work ers, dog s, noi se, and ligh t.
T he hedge separates Strada Trieste , which is heavily traveled and provides pub lic access to the beac h an d
clubhouse , from the yard area . The disabled resident spends the majority of his ti me at ho me and acc ess es
the yard area th rou gh sliding glass doors from his bedroom . Enclosing the yard area with a tall er hed ge will
provide a more secluded , quiet, and safe area for the disabled res id ent's use . In cre as in g the privacy of the
yard area will enhance the disabled resident's qua li ty of life and provi de the dis ab led resid ent an equal
opportun ity to use and enjoy the dwe lling . Approval of the accommodation wi ll no t alter the ch aracte r of the
ne ighborhood because the hedge is a nom inal accessory feature common to the Lido Is le ne igh borhood and
along neighbo rhood stradas . The Lido Isl e Community Association (LICA) allows a maximum he dge of 5 feet
for hedg es located adjacent to Strada T rieste. A tal ler hedge will not result in any fun da menta l alte ration of
the character and use of the home or the ne ighborhood . The hedg e is nomin al in natu re and maintai ns a
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design bulk and scale of development that is consistent with the surrounding neighborhood pattern of
development. In accordance with Section 21 .16.020 of the Local Coastal Program Implementation Plan , the
reviewing authority may grant reasonable accommodations to the City's coastal zoning an d land use
regu lations , policies , and practices when needed to provide an individual with a disability an equal opportunity
to use and enjoy a dwelling in compliance wi th Federal and State fair housing laws. The propo sed hedge is
exempt from the requirements of a coastal development permit as the hedge is accessory to the principal
dwelling. The modification does not result in an increase of more than 10 percent to the gross floor area,
height, or bulk of the principal structure. A taller hedge will not encroach onto the Strada or any publ ic
walkway . The public view afforded down the Strada and across Via Lido Saud towards the beach will not be
impacted. Public access via the Strada will not be impacted . Traffic and park ing will not be affected by the
increase in hedge height. Staff believes the findings for reasonable accommodation can be made and
recommends approval of the application .
In rep ly to the Hearing Officer's questions, Assistant Planner Whelan advised that she has consulted with th e
City Traffic Engineer regardi ng the site distance triangle . The Police Department did not comme nt regarding
a taller hedge affecting surveillance or concerns raised about safety.
Sean Morrissey, on behalf of the applicant, state d that the Feslers' written comments are infl ammatory and
intended to distract parties from the issue of whether the resident of 101 Via Undine qualifie s fo r reasonable
accommodation. The disabled resident does qualify for reasonable accommodation . The Feslers may not
have standing to participate in the hearing as they have moved to Long Beach and opened esc row for their
Lido Isle home on June 26, 2019 . Mr. Fesler's law license was placed on inactive status on July 6, 2019
rather than January 1, 2017 as stated in his declaration. Using the logic Mr. Fesler applie s to Ms. Moore's
declaration, add itional statements in Mr. Fes ler's declaration may be false. Maintaining a hedge at a height of
6 feet is the most reasonable and minimum accommodat ion necessary to provide the disabled resident with
an equal opportunity to use and enjoy his dwelling. Based on Mr . Morrissey's observation of the subject
property and surrounding area , the public view will not be affected by a taller hedge . Views from Mr.
Grave lin e's property are not an element that needs to be considered in determining wheth er to grant a
reasonable accommodati on . The Abrahamians appear to be misinformed in that the hedg e located at the
intersection of Strada Trieste and Via Lido Soud is 36 inches tall and will be maintained at that height. Ms.
Bozarth's concerns of safety and views from her property have been addressed. Ms. Bozarth's concern of a
passersby peering over the hedge into the yard is not relevan t.
Rhonda Moore , applicant, stated that she hopes the Hearing Officer understands her appre hension in
releasing the disabled resident's medical information .
The Hearing Officer opened the public hearing.
One member of the public, Eric Henn , President of the Lido Isle Community Association, spoke and stated
that in 2002 the LICA Board increased the allowed hedge height to 60 inches. LICA req uires trees to be
trimmed at least 84 inches above grade . This provides a 2-foot unobstructed view from one end of a strada
to the other end. The LICA Board became aware of the City's maximum hedge height as a result of litigation
between the Feslers and the Moores. At the time of the litigation , the City did not enforce the maximum
hedge height for the Moores' property because the Moores planted individu al plants , which did not meet the
definition of a hedge. Now that the individual plants have grown into a hedge , the Feslers hav e asked the
City to enforce the maximum hedge height. Many hedges along Stradas are 60 inches in height. LICA
supports allowing a maximum hedge height of 60 inches for the Moores . A hedge height of 60 inches will
prov id e the disabled resident with adequate privacy. A hedge height of 78 inch es will decrease the view
down Stradas from 2 feet to 6 inches and will impact the view from all homes north of the Moore residence.
LICA is concerned that granting this accommodation will set a precedent for other disabled residents in the
community.
One member of the public , Don Fesler, spoke and stated that his declara tion accura tely reflects his
ret iremen t on January 1, 2017 . Statements in his declaration are inflammatory but approp riate based on the
facts of the case and the Moores' conduct. The week prior to the hearing , he measured the existing hedge at
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a height greater than 42 inch es in the site triang le. Ms. Moore's declaration indicates she and her husba nd
own the subject property when a deed indicates the owner of the property is Mr. Moore's mo ther. Because
the disabled resident's medical cond ition is the issue, the confidential ity of medical reco rds is wai ved.
Dr. Bera's June 20 , 2019 report does not contain a diagnosis , treatment , results of tre atme nt, o r the date his
treatment of the disab led resident began . The app li cation is an attempt to circumve nt the not ice of vio lation .
In the request for reasonable accommodation, Ms . Moore states "at this time" th e he dge serves as a
protective barrier from the pub li c and lights . Dr. Bera's report states his patien t "e nj oys" the outdoor area
accessed from his bedroom. Both statements indicate the existing hedge provides the priv acy the applicant
seeks . Mr. Fesler requested the Hearing Officer include his Exh ibits 101 and 102 , ph otos of Mr. Fesler's view
to the bay before the hedge was planted and at the time the hedge was planted, in t he re cord . To clarify, Mr.
Fe sl er's property is on the left side of the photo. The Moores have never maintained th e hedge at a height of
60 inches as required by LICA. The intersection of Strada Trieste and Via Lido Soud is he avi ly used because
it is an access point to the beach. The hedge is not a so lid barrier and will not preven t no ise and light from
re ach ing the outdoor area . The Moores own a dog that barks when it is outside .
Wh e n asked by the Hearin g Officer , Mr. Fesler stated he has observed the disabled resident jogging around
Li do Is le. He is certain the jogger is the disabled resident. The disabled res ident's acti vi ties as enumerated
in Part V of Mr. Fesler's origina l declaration are assoc iated with people , noise, lights, an d closed spaces. Mr.
Fes le r advised that he observed these activities in 2018. Mr. Fesler and his wife met wi th Mr. and Mrs. Tilden
at th e subject property and observed a patio located in the interior of the property . Th e T ilde ns' are the prior
residents of the subject property. The pa t io contains a fountain and a seating area t hat can be accessed from
the sidewalk and the house. Mr. Fes ler estimated the size of the patio as 10 feet by 15 feet.
Mr. Fesler further stated that staff's comment that a taller hedge would not change the character of the
neighborhood is fa lse . The 36-inch hedge height in the site triangle will not provide the dis abled resident with
privacy but will create an opening that will invite people to loo k in to the yard area . T he con fi guration of the
hedge will be unique in Lido Isle in tha t no other property has hedges planted at an inte rsection.
One member of the public, Roberta Fes ler, spoke and stated that the hedge located in the site triangle at
various times has measured 42 inches in height , but for the most part the height has exceeded 42 inches. Mr.
Morrissey's statement that concerns people looking into th e back yard area be ing irrelevant is incorrect
because the disabled resident desires increased privacy. The 36-inch hedge hei g ht in the site triangle w ill
pe rm it pa sse rsby to view the yard area and expose the disabled resident to activit ies o utside the yard area .
Under the Fair Housing Act , 42 USC § 3602(b), dwelling is defin ed as "a buil d in g, structure , or portion
the reo f." A dwel li ng does not include an outdoor patio , a hedge, an exterior area covered in gravel. The
app li ca nt does not seek reasonable accommodation for the building, structure , or port io n th ereof.
Mr. Morri ss ey c larified that the resident qualifies as a disabled person under the Fai r Hous ing A ct. That is the
ele me nt th at needs to be established in an app li cation for reasonable accomm odat ion. Reasonable
accom modat ion is made pursuant to the City Code .
Ms . Fesler further stated the City Code utilizes the term dwelling as well. Reasonable acco mmodation allows
a n indiv idua l w ith a qualifying disability to make use of and enjoy a dwelling. Sh e a nd her husband currently
own t he home at 105 Via Undine even though they do not liv e in it. Ms . Fesle r con tinued to advocate for
re lease of the subm itted medical information for the reasons stated in her and her husband 's declarations.
During the LICA Board's consideration of increasing hedge height to 60 inches, she inform ed t he Board of the
City's requirement for a maximum height of 42 inches, contrary to Mr. Henn's statemen t. Al so contrary to Mr.
Henn's statement , amending the City's ordinance to allow a hedge height of 60 inche s cou ld require a few
years to accomplish . The medical information availab le to the public indicates the d isa bled resident cannot
be out and about in society . Yet , she and her husband have witnessed th e di sab led resident in the
community , and she witnessed the disabled resident jogging past her hou se as re ce nt ly as February 22 ,
2019 . Ms . Fesler did not know whether the disab led resident 's disability manda tes th e typ e of seclusion the
applicant seeks . For the 18 months that she and the Moores occupied adjacen t re s id e nces , the d isabled
resident occupied a different bedroom in the home , and the bedroom wa s open to vi ew d uri ng daylight and
evening hou rs. Other areas of the home can pro v ide the seclusion that the app li cant seeks and that meets
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the needs of the disabled resident. A third bedroom in the disabled resident's home has one window that
faces her home and does not face the Strada or the Street. The disabled resident has access to the outdoors
via the patio. Based on her visits to the subject home, she advised that the patio is at least as large as the
backyard area. If an alternative is available, granting reasonable accommodation is not necessary. In
resolutions numbered HO2013-001 and HO2018-002, the Hearing Officers denied the requested
accommodations because alternatives were available.
The Hearing Officer requested any interested party provide staff with copies of any case law relevant to
release of medical information by Friday at 5:00 p.m. At Mr. Morrissey's request, the Hearing Officer agreed
to provide an opportunity for the applicant to take a protective action should the Hearing Officer elect to
release any or all of the medical information. The Hearing Officer clarified that in 2018 he denied one
application for reasonable accommodation and approved one application for reasonable accommodation.
One member of the public, Mana! Bozarth, spoke and stated the hedge has altered the view of the bay from
her home and the look of Lido Isle. She opposed the application. The previous day, she measured the height
of the hedge in the site triangle at 46 inches. The disabled resident's need for privacy does not make sense in
light of his engaging in activities in the community. Given the disabled resident's need for privacy, she
questioned the Moores' decision to move to a home where passersby are frequent and homes are extremely
close to one another. The courtyard is an alternative outdoor space for the disabled resident. She expressed
concern regarding the Moores not owning the property. The City's 42-inch hedge height requirement is
appropriate.
Mr. Henn clarified that the Mayor has not promised that the City's hedge height requirement will be amended.
While litigation may not have been instigated, the Moores and Feslers were involved in legal actions when
the LICA Board was considering increasing the hedge height requirement.
Ms. Fesler reported she and her husband filed suit against LICA and the Moores in late 2018, more than a
year after the circumstances referenced in Mr. Hen n's letter.
There were no other public comments.
In answer to the Hearing Officer's questions, Ms. Moore advised that she has authorization from the legal
owner of 101 Via Undine to submit and proceed with the application. The disabled resident is not physically
disabled. Ms. Moore could not state which of her three sons has been observed engaging in activities
outside the home. Until three weeks prior to the hearing, the three sons were living in the home. Individuals
may have seen the disabled resident engaging in activities in the community, such as walking the dog. She
attempts to get the disabled individual outside the home when possible. She originally wanted a 6-foot tall
hedge but felt a height of 6 1/2 feet would be better because many people are more than 6 feet tall. Dr. Bera
supported the idea. She wanted the disabled resident to be able to sit outdoors without feeling as though
someone is coming over the hedge. The application is not a sham. The comments demonstrate prejudice.
The hedge is still growing together, so there are gaps in it at this time. The hedge will address the disabled
resident's symptoms. The disabled resident's weekly therapist agrees that a hedge will benefit the disabled
resident. Mr. Morrissey added that the doctor feels a hedge will address the symptoms, and the doctor's
opinion outweighs any non-medical recommendation. Suggesting the disabled resident live on a patio rather
than his preferred location is offensive. Many of the opposition arguments concern personal perspectives
and views from a property. In weighing the testimony, the Hearing Officer should consider whether the
witnesses live on Lido Isle.
Ms. Fesler disagreed and stated it shouldn't make any difference on the weight of evidence whether
witnesses lived on Lido Isle.
Ms. Moore remarked that enforcement of the hedge height is based on complaints. Complaints could be
made against 620 residences in Lido Isle.
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The Hearing Officer held the hearing open until 4:00 p.m. Friday for submission of addition a l documents and
photos . At Mr. Morrissey's request , the applicant has until Monday at 5:00 p .m. to re spo nd to any of the
submissions . The Hearing Officer advised that he will notify staff by 4:00 p.m. Fri day of any change in his
determination of sealed documents , and the parties may respond to any change by 5:00 p.m . Monday. All
s ubmissions should be made to City staff. Typically, appeals of Hearing Officer determinati on s are made to
the Superior Court , but this action is not typi cal. The Hearing Officer read Section 20.52 .070(d)(1 )(c), which
appears to indicate the City Council has t he option of sustaining, reversing , o r modifying the Hearing Officer's
decision . He questioned whether an appeal has to be filed with the City Council or wh ether the City Counc il
may ca ll the decision for review .
Action: Approved on August 15 , 2019 by Resolution No . HO2019-001
Ill . PUBLIC COMMENTS ON NON -AGENDA ITEMS
Non e.
N. ADJOURNMENT
The hearing was adjourned at 12 :28 p.m.
The agenda for the Hearing Officer was posted on July 24, 2019, at 3:30 p.m. on the digital display
board located inside the vestibule of the Council Chambers at 100 Civic Cente r Drive and on the
C ity's website on July 4, 2019, at 4:15 p.m.
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