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Home My WebLink About20190731_Staff ReportCITY OF NEWPORT BEACH HEARING OFFICER STAFF REPORT July 31, 2019 Agenda Item No. 1 SUBJECT: Moore Hedge Height (PA2019-050) 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 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 accommodat ion 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 GENERAL PLAN ZONING 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 SOUTH RSD, Private Institutions (PI) R-1, PI Single-family dwellings, beach and community clubhouse EAST RSD R-1 Single-family dwellings WEST RSD R-1 Single-family dwellings 2 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-3B 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. 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 disabilit y 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 4 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 prope rty is unique with three 6 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: ATTACHMENTS HO 1 Draft Resolution for Approval with Findings and Conditions HO 2 Draft Resolution for Denial HO 3 Proposed Hedge Exhibit 01/12/18 8 Attachment No. HO 1 Draft Resolution Approving the Reasonable Accommodation 9 RESOLUTION NO. HO2018-#### A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH, 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. 1. 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. #### Page 2 of 7 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. 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: 1. 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: 1. The additional hedge height is needed for the disabled resident to enjoy and utilize safe access to the outdoor yard area outside of their bedroom sliding door. 2. In the letter from Dr. Bera, MD of UCI Neuropsychiatric Center that has been submitted by the applicant supporting the claim and the need for increased hedge height. Dr. Bera recommends the increased hedge height due to the necessary use of a private yard due to the resident’s existing medical condition. The increased 11 Hearing Officer Resolution No. #### Page 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. The re are no administrative costs because there are no building permits required. Finding: D. That the requested accommodation will not result in a fundamenta l 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. #### Page 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: 1. In accordance with Section 21.16.020(E), (Reasonable Accommodations) of the Local Coastal Program Implementation Plan, the review authority may grant reasonable accommodations to the City’s coastal zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling in compliance with Federal and State Fair Housing Laws. 13 Hearing Officer Resolution No. #### Page 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 31st DAY OF JULY, 2019. _____________________________________ ________________________, Hearing Officer 14 Hearing Officer Resolution No. #### Page 6 of 7 EXHIBIT “A” CONDITIONS OF APPROVAL PLANNING 1. The development shall be in substantial conformance with the approved site plan, floor plans and building elevations stamped and dated with the date of this approval. (Except as modified by applicable conditions of approval). 2. The 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. #### Page 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. 16 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. 1. 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. 18 Hearing Officer Resolution No. #### Page 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: 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 31st DAY OF JULY, 2019. _____________________________________ ________________________, Hearing Officer 19 Attachment No. HO 3 Proposed Hedge Exhibit 20 EXHIBIT A 5 feet by 5 feet site distance triangle with max. 36-inch hedge height Green is existing hedge requested to increase to 6.5 feet along perimeter of front yard 21 From:Whelan, Melinda To:Garciamay, Ruby; 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 Hearing Officer - July 31, 2019 Item No. 1a Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; Lee, Amanda Subject:FW: Project File No. PA2019-050 Date:Monday, July 29, 2019 9:34:14 AM -----Original Message----- From: Sandra Abrahamian <sabrahamian1118@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 stratas on the island because it is used by 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. 1b Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; 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 111 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 is a 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. 1c Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; 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 31st. 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) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1d Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; Lee, Amanda Subject:FW: 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.pdf 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. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1e Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; Lee, Amanda Subject:FW: 101 Via undine....filed, please forward to Ed Johnson Date:Tuesday, July 30, 2019 9:22:33 AM Attachments:Staples Scan.pdf ATT00001.txt -----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. Hearing Officer - July 31, 2019 Item No. 1f Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; Lee, Amanda Subject:FW: 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 <Ccreg12@staplesbusinesscenter.com> Date: July 30, 2019 at 3:50:36 PM PDT To: "donfesler@gmail.com" <donfesler@gmail.com>, "bobbieF100@me.com" <bobbieF100@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) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1g Additional Materials Received Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; 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. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1h Additional Materials Received Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1i Additional Materials Received at Meeting Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1i Additional Materials Received at Meeting Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) Page 1 of 1 Ed Johnson From: "Rhonda Moore" Date: To: ~' Jul y 29 , 2 019 4:40 PM Attac h: 2 019 -07 -29 16-15 .pdf Subject: 7 /31 Hearing P A2019-O50/Under 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 y ou for your consideration and respect for my son 's privacy concerns. Rhonda Moore Sent with Genius Scan for iOS. https://dl.tglapp.com/genius-scan Rhonda Moore 7/3 1/2 019 Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) UC Irvine Health 5/9/2019 RE :. DOB: MRN: Moore To Whom It May Concern : JURY DUTY EXEMPTION 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 : Rima! B. Bear, MD , UC Irvine Health UCI SIRCH PSY AND HUMAN BEH 20350 Sw Birch St Suite 110 Newport Beach CA 92660-1725 TEL: 714--456-5902. FAX ; 949-250-~177 Page 1 of 1 .... . ,. _ _.,._..,.., ____ ,. ... ___ .......... : ·" - ,. --.. ,..,,.,: ------· .... ;-____ .,_ --·--·-. Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) Social Security Admi · stration Supplemental Sec rity Income . l\1OORE 101 VIA UNDINE NEWPORT BEACH, CA 92663-514 Dear .--MOORE SOCIAL SECURITY .. SUITE B ~ 17075 NEWHOPE STREET FOUNTAIN VALLEY, CA 92708-4299 Date: November 27, 2018 s1nsg..----- You have been found to meet th medical requirements to re..ceive Supplemental Security:. . . - Income benefits . Before we can egin your payments, we need some additional information from you. We have scheduled you for an ap ointment in our office on December 5, 2018 at 10:30am. Because of your medical conditio , the medical examiner for your case has recommended that you have someone help you ith managing your benefits and paperwork. Please bring a trusted relative or friend that ould be willing to help you. The person you bring with you to the office will complete an app ·cation to become your representative payee. This person should bring a picture I.D. with t em. · For general information about S ial Security we invite you to visit our website at www.socialsecurity.gov on the In ernet. For general questions and specific questions about our case ou may call us toll-fr at 1-800-772-1213, or call your local Social Security office 77-304-6994 nd ask for Ms. llie-~e can answer most questions over the phone. Ifyoi; are de or ard of hearing, you ay call our TTYffDD number 626-569-7527. If you do call< visit an office, please have this le ter with you. It will help us answer your questions. Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) ~·~--,--. ... . ' ' -. .. . .. ,, --- ' l t ... , . . ..... \ I • I ,. ,,,,, . .,• •• - Hearing Officer - July 31, 2019 Item No. 1j Additional Materials Unsealed by Hearing Officer Moore Hedge Height (PA2019-050) 1 To:HEARING OFFICER Subject:FW: 101 Via undine....filed, please forward to Ed Johnson Attachments:J3FCRwP4Taa6jM1SEHSrKA.jpg; 55xDA+tARwqjqSF3jgMpSQ.jpg; CTpu9OuSRcCSyE6AHjF18Q.jpg; jqVd45KGR3iYjz0gYyd03Q.jpg; 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. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) 2 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 rgarciamay@newportbeachca.gov Amanda Lee alee@newportbeachca.gov Jaime Murillo jmurillo@newportbeachca.gov MELINDA WHELAN Assistant Planner Community Development Department | Planning Division mwhelan@newportbeachca.gov 949-644-3221 CITY OF NEWPORT BEACH 100 Civic Center Drive, Newport Beach, California 92660 | newportbeachca.gov Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) 7 ', ~ ,~ ~111111•~~\ . ./• -A ~ =--· 1 . _,__ -c· 1\,.. ·, , --~'. -' -,, ' ,, --. . ,.'_., ·_ ."-; • • I ~T • • ; • I I 1-1 < J_ . \ ~~\~" ·~ -··~ . . ,, ., 'r' ?" i·•;~ ··t·~ "~,f .' ~-r . 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T.~ :t:--, -j~ _, i::-~ . ·~ ti~ . \ . _/ J",,. _,--l , ~-~-· Ap: ·-y' ,.J-·, • ... -.:. ~. ~ . ----. ..,. ~ Ill ;,,~~ Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; 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. 1k 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. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) POST-HEARING DECLARATION OF DON FESLER I, 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. I 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. t. 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. 1k 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 really took flight. She testified how, after she learned about the City's ordinance regarding reasonable accommodations, she hit upon 6 and ½ 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 issue?' [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. 1k 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.1 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 . .u.L. EVEN DR. SERA'S FARSICAL LETTER STATES THAT THE APPLICANTS' HEDGE NEED NOT BE 78-INCHES ALONG ITS ENTIRE PERIMETER. 8. Again reading Dr. Sera'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 1 O' 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". 1 Given Rhonda Moore's testimony, it is clear that the evidence surrounding the preparation of Dr. Sera's letter is not protected by the physician-patient privilege. She is not Dr. Sera's patient, at least not for these purposes. Any claim that her conversation with Dr. Bera 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. 1k 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. Sera'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. Sera'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. 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 HO2013-001 (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. 1k 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. VII. 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. 8. 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. I 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. ti?n ~ DON FELER Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) RESOLUTION NO. HO2013 -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 . 1. Chapter 20.52 of the Newport Beach Munic ipal 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 pr.operty is .located .in .the R-Bl (Two-Unit Residential , Balboa . Jslan.d) 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. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach 1-fearin~J Officer Hesolution No . HO 2013 -00 ·f Bal<ma11 Accont1nod ation (2 19 Diamond Av e ) Pag e 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 _3j st City Clerk Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach Hearing Officer Resolution No. HO2013-001 Bakman Accommodation {219 Diamond Ave) Page 2 of 4 SECTJON 2 . CALLFORNJA ENVLRONMENTAL QUALITY ACT DETERMJNAT1ON . This project has been determine(;j 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(b){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 (0.2) of the Newport Beach Municipal Code, all of the following . findings must be made in order to approve a reasonable accommodation: 1. 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 perjury 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 ·1etter for the conclusions regarding the Reasonable Accommodation. 2.. Rea.uired Findinc:t: The reauested accommodation is necessarv. to nrovide . - . ., . 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. Anv modifications necessarv to make the existina. 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 opp.ornm.ity. to us.e. amt e.n.jo.y. a. dw.e!Jing,. The justitit'.afion preisente.d doe..s. Hearing Officer - July 31, 2019 Item No. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) City of Newport Beach Hearing Officer Resolution No. HO2013-001 Bakman Accommodation (219 Diamond Ave) Page 3 of 4 not suoaort the .orooosed size and location of the additions that are the subiect of I I I I " 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 Supnort of Findina: 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 Housing Laws and inter,.aretive case Jaw. 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 resideotiaJ. 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 parking. 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. 1k Correspondence Received after Meeting Moore Hedge Height (PA2019-050) From:Whelan, Melinda To:Garciamay, Ruby; Lee, Amanda Cc:Murillo, Jaime Subject:FW: Moore Reasonable Accommodation Date:Tuesday, August 6, 2019 8:35:24 AM Attachments:Mr. Johnson_final letter.pdf 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.avg.com Hearing Officer - July 31, 2019 Item No. 1l 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. Hearing Officer - July 31, 2019 Item No. 1l Correspondence Received after Meeting Moore Hedge Height (PA2019-050)