HomeMy WebLinkAbout01_Aerie Condominium Funicular Reasonable Accommodation and AIC_PA2020-067
CITY OF NEWPORT BEACH
HEARING OFFICER STAFF REPORT
August 25, 2021
Agenda Item No. 1
SUBJECT: Aerie Condominium Funicular (PA2020-067)
Reasonable Accommodation No. RA2020-002
Approval in Concept No. AIC2020005
SITE LOCATION: 101 Carnation Avenue
APPLICANT: Brion Jeannette Architecture
OWNER: Richard Julian
PLANNER: Melinda Whelan, Assistant Planner
949-644-3221, mwhelan@newportbeachca.gov
PROJECT SUMMARY
A reasonable accommodation application to allow the construction of a funicular within the
coastal bluff setback area (Development Area C) of the existing Aerie condominium project,
where such improvements are not allowed. The applicant contends the funicular is
necessary to provide disabled residents unable to utilize the existing stairway the ability to
access the on-site docks and beach amenities below the homes. Approval of the reasonable
accommodation will authorize the City to approve Approval-in-Concept No. AIC2020005
and allow the applicant to submit the funicular to the California Coastal Commission for
amendment to their existing Coastal Development Permit for the Aerie condominium project
to potentially permit the improvement.
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. RA2020-002
(Attachment No. HO 1); and
4) Authorize Approval in Concept No. AIC2020005 for Coastal Commission review.
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VICINITY MAP
GENERAL PLAN ZONING
LOCATION GENERAL PLAN ZONING CURRENT USE
ON-SITE Multiple Residential (RM) Multiple Residential (RM)
Bluff Overlay District (B) 7-unit condominium project
NORTH RM Single-Unit Residential
(R-1) Multi-unit residential
SOUTH Single Unit Residential
Detached (RSD) R-1 Single-unit dwellings
EAST Two-Unit Residential (RT) Two-Unit Residential
(R-2) Single and two-unit dwellings
WEST RT R-2 Single and Two-family
dwellings
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INTRODUCTION
Project Setting and Background
The Aerie condominium property is located at the corner of Carnation Avenue and Ocean
Boulevard in Corona del Mar (see Figure 1). In 2011, the Coastal Commission approved
CDP 5-10-298 for the seven-unit blufftop condominium development. The subject
property includes the entire bluff, beach and water area including the pier leading to the
docks. In 2013, the Coastal Commission approved CDP 5-12-214 for the now completed
gangway, dock, and pier construction. The bluff top condominium project including
subterranean parking, common areas on the upper “street side” and recreational
amenities including the docks and beach for use of residents and guests on the lower
“water side” is close to final and completion. The seven units have been sold. There is an
existing 88-step staircase at a very steep angle that was constructed prior to the Coastal
Act and provides the only access/connection between the upper and lower portions of the
property.
Figure 1. Aerial of Site
Project Description
The reasonable accommodation application is requesting relief from Newport Beach
Municipal Code (NBMC) Section 20.28.040 Bluff (B) Overlay District and from the
Newport Beach Local Coastal Program Implementation Plan Section 21.28.040 to allow
Aerie
Development
Bluff with existing
stairs leading to
lower water-side
amenities
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a funicular to be constructed on the bluff face below the 50.7-foot contour line (see Figure
2). The funicular is an inclined elevator that will include a 120-foot-long-on-grade track
and would be equipped to automatically move one cab accommodating up to four
passengers. The track for the cab would be affixed to an on-grade concrete
footing/foundation with the minimum required size of 24 inches wide, 36 inches deep and
6 inches below grade. The footings for the funicular will be engineered by expanding
existing footings associated with a Coastal Commission approved water line on the bluff
face that provides water for required fire protection at the approved docks. The conceptual
plans are included as Attachment No. HO 4.
The proposed project would provide residents and guests with disabilities access to their
docks, boats and beach area, which are the outdoor common facilities included on the
private condominium property. The existing stairs are steep and are not accessible for all
of the residents. The reasonable accommodation will provide relief from the Zoning Code
and Local Coastal Program (LCP) to authorize the City to approve an Approval in Concept
(AIC) for the submittal of the funicular to the California Coastal Commission. The draft
resolution for approval includes a condition that the construction and structural
components of the funicular shall not exceed the minimum required to provide the four-
passenger carrier and shall limit disruption to the bluff. The track will also be conditioned
to be painted to match the bluff. When the cab is not in use, it will be parked at the top of
the bluff next to the condominiums within a garage-type enclosure, not visible and above
the 50.7-foot contour line (where principal structures area allowed).
Figure 2. Site Plan
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DISCUSSION
General Plan, Local Coastal Plan, and Zoning Code
The subject property is designated RM (Multiple Residential) by the General Plan Land
Use Element and RM-D (Multiple Residential) by the Coastal Land Use Plan. The site is
also located in the RM (Multiple Residential) Bluff Development – Carnation Avenue
Overlay Zoning District and Coastal Zoning District. The seven-unit condominium project
is a permitted use under these land use designations and zoning districts.
The RM Bluff Development – Carnation Avenue Overlay Zoning and Coastal Zoning
Districts allow development and all accessory structures only above the 50.7-foot contour
line on the bluff (Development Area A). The funicular is proposed to provide access down
the bluff and below the 50.7-foot contour line within Development Area C where such
structures are prohibited. Additionally, conditions placed on CDP 5-10-298 also prohibit
development the 50.7-foot contour. Approval of a Reasonable Accommodation is
necessary prior to the City issuing an Approval-in-Concept for the proposed funicular
allowing the applicant to apply for an amendment to the Coastal Development Permit by
the California Coastal Commission.
Reasonable Accommodation
The proposed funicular requires a deviation from regulations for bluff development
restrictions in the Zoning and Coastal Zoning regulations. The applicant chose to request
a reasonable accommodation because at least four existing residents of the condominium
that are utilizing the waterfront amenities of the condominium property have a disability.
In compliance with Federal and State Fair Housing Laws, reasonable accommodations
in the City’s zoning and land use regulations, policies, and practices are permitted when
needed to provide an individual with any disability an equal opportunity to use and enjoy
a dwelling. All properties on this side of Ocean Boulevard and Carnation Avenue include
access to the water and beach below. This is achieved via paths and/or stairs; in one
case located at 2495 Ocean Boulevard, a similar funicular is provided. Amenities of the
Aerie development include the water side common areas and docks that are for the
enjoyment of all residents of the condominiums.
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
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
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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 the funicular is necessary for the water-side common area
amenities to be utilized by at least four disabled persons/residents. Physicians’
documentation has been prepared by the following doctors: Dr. Bae of Newport Beach
Medical Associates; Dr. Steve Barnett, Orthopedic Surgeon; Dr. Catherine Chang, Board
Certified Internal Medicine; Dr. Eric Olsen Benner, Internal Medicine; and Dr. Mikio
Tachibana Internal Medicine for the four residents. The doctors provide information on
each mobility impairment disability that prevents each resident from using stairs.
Therefore, the funicular is required for each resident to utilize the water-side common
areas on the property that are for all residents on the property. To protect the
confidentiality of the medical information of the individuals, doctors’ statements pertaining
to each individual will be provided to the Hearing Officer at the time of the hearing so that
the Hearing Officer can review and confirm for the record that there is medical information
verifying these disabilities. The medical records provide further details on the specifics of
the medical conditions; however, the documentation is protected under the Health
Insurance Portability and Accountability Act (HIPAA) and is not public record. A generic
description of the individuals is provided in the supplemental application information
provided by the applicant in Attachment No. HO 3. The disabilities are physical and mental
impairments that make it dangerous and/or impossible to use the existing stairs.
Required Findings and Factors of Consideration
The Hearing Officer is designated to approve, conditionally approve, or deny all
applications for a reasonable accommodation. NBMC 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;
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; and
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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.
The following alternative methods have been evaluated by the applicant to provide access
between the project’s street-side and water-side levels. An explanation is provided as to
why the alternative cannot be accommodated without more significant disruption to the
preservation of the coastal bluff and public coastal views:
1. Ski-lift-type gondola. To build a ski-lift-type gondola system, it would require a
minimum of three to four, 10-foot-tall poles along the path of travel which would
create a greater visual disturbance to the bluff and obstruction to public coastal
views in the area. Coastal Land Use Plan Policies call for preserving public coastal
views and visual compatibility with the surrounding area. There are no existing
similar structures in this bluff area.
2. Wheelchair lift. A wheelchair lift has a 31.5-inch-wide by 48-inch-long platform and
utilizes the handrail to travel along the path of the stairway. It is generally most
suitable for straight stairway or gentle turn stair with a 90-degree angle because
the lift requires a generous amount of room for the platform to maneuver as it
makes the turn. On the Aerie project, there are several tight turns at the top of the
stairs with angles of 38 and 45 degrees. This restricts the platform from making
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the turn. Additionally, when the wheelchair lift is in operation, it blocks the stairs
from usage and could create an issue for the first responder in the event of an
emergency.
3. Subterranean tunnel. Although the subterranean tunnel would have the least visual
impact from the bay, it also requires an extensive amount of grading and would be
detrimental to the coastal bluff, the most disruptive and least compliant with bluff
protection policies in the Coastal Land Use Plan.
There is an existing concrete pad located on the lower bluff that was the landing for a
funicular that operated on the property prior to the staircase and the Coastal Act to provide
access to the lower portion of the property. The existing concrete pad will be used as the
exiting area for the proposed funicular. The funicular is the least impactful to the bluff and
the most compliant with Local Coastal Program policies requiring bluff alteration to be
minimized if not avoided.
The proposed accommodation would not result in any fundamental alterations to the
character and use of the condominiums or the neighborhood. The funicular provides
necessary access for use of the waterside amenities on the property for all residents to
enjoy. Without the funicular, access would not be possible for the mobility impaired
disabled residents per the information provided by the medial doctors. As explained
above, there are no feasible alternatives for providing accommodation at the
condominium project that would provide greater consistency with the LCP. The funicular
is the least intrusive to public coastal views and the least disruptive to the natural coastal
bluff. The concrete footings already approved for required Fire and Utilities will be
widened to accommodate additional steel and concrete for the roller coaster pier and
beam steel track. Traffic and parking are not affected by the funicular.
The Reasonable Accommodation will allow approval of the AIC for the funicular, designed
with the least disruption to the bluff and the most compliant with Coastal Land Use Plan
Policies to be submitted to the California Coastal Commission. The California Coastal
Commission will review the design and engineering in detail and will be tasked with
approving or denying the proposed amendment to the Coastal Development Permit to
allow the funicular.
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 Construction or Conversion of Small Structures ) of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the
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funicular is the addition of an accessory device to safely provide accessibility in conjunction
with the existing condominium project. The addition of the funicular does not involve an
expansion of the existing condominium use.
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.
Prepared by:
ATTACHMENTS
HO 1 Draft Resolution for Approval with Findings and Conditions
HO 2 Draft Resolution for Denial
HO 3 Supplemental applicant information
HO 4 Conceptual Plans
9
Attachment No. HO 1
Draft Resolution with Findings and Conditions
10
RESOLUTION NO. HO2021-###
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, APPROVING REASONABLE
ACCOMODATION NO. RA2020-002 FOR THE PROPERTY
LOCATED AT 101 CARNATION AVENUE (PA2020-067)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1.An application was filed by Brion Jeannette, architect requesting approval of a
reasonable accommodation on behalf of Rick Julian (“Applicant”), with respect to
property located at 101 Carnation Avenue, Newport Beach, California and legally
described as Lot 1 in Tract 16882, Block D in the City of Newport Beach, County of
Orange, State of California, Assessor’s Parcel No. 052-013-40 (“Property”).
2.The Applicant has submitted a reasonable accommodation application requesting
relief from Section 20.28.040 Bluff (B) Overlay District of the Newport Beach
Municipal Code (“NBMC”) and from Title 21 of the (Local Coastal Program
Implementation Plan) to allow a funicular below the 50.7-foot contour line. The
funicular includes a one-hundred and twenty (120)-foot-long-on-grade track to
automatically move one (1) cab for up to four (4) passengers. The funicular is required
to accommodate disabled residents to the waterside amenities on the private seven (7)-
unit condominium property (“Accommodation”).
3.The Property is designated Multiple Residential (RM) by the General Plan Land
Use Element and is located within the Multiple Residential (RM) Bluff Development –
Carnation Avenue Overlay Zoning District.
4.The Property is located within the coastal zone. The Coastal Land Use Plan category
is Multiple Unit Residential (RM-D) 20.0-29.9 du/ac and it is located within the
Multiple Residential (RM) Bluff Development Carnation Avenue Overlay Coastal Zoning
District.
5.The Property is located within the California Coastal Commission jurisdiction and
requires an Approval in Concept from the City for the Applicant to submit an
amendment to the existing Coastal Development Permit No. CDP 5-10-298 to the
Coastal Commission for the construction of the funicular.
6.A telephonic public hearing was held on August 25, 2021, on Zoom, observing
restrictions due to COVID-19. A notice of time, place and purpose of the public hearing
was given in accordance with the California Government Code Section 54950 et seq.
(“Ralph M. Brown Act”) and Chapter 21.62 (Public Hearings) of the NBMC. Evidence,
both written and oral, was presented to, and considered by, the Hearing Officer at this
public hearing.
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Hearing Officer Resolution No. HO2021-###
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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 funicular would provide access to persons with disabilities and does not modify the
existing condominium building.
SECTION 3. REQUIRED FINDINGS.
In accordance with NBMC Section 20.52.070(D)(2) (Decision on Reasonable Accommodation,
Findings and Decision), 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.
Fact in Support of Finding:
1. A letter from the property owner, Rick Julian, states that the funicular is needed to allow
persons with disabilities to enjoy the full use of the Property. Documentation from the
residents’ physicians has been prepared by the following physicians of four (4) existing
residents: Dr. Martin I. Bae, Newport Beach Medical Associates on behalf of; Dr. Steve
Barnett, Orthopedic Surgeon on behalf of; Dr. Catherine Chang Board Certified Internal
Medicine on behalf of; Dr. Eric Olsen Benner, Internal Medicine on behalf of; and Dr.
Mikio Tachibana Internal Medicine on behalf of. The physicians’ correspondence
indicates disabilities prevent use of stairs, and an accessible accommodation is
necessary to provide access throughout the Property including the lower water-side
common areas.
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 funicular is needed for the disabled residents to enjoy and utilize safe access to the
waterside amenities shared by the private seven (7)-unit condominium community.
2. In the letters from the physicians of four (4) of the current residents, stairs do not provide
access based upon the residents’ disabilities. The doctors explain the mobility
impairment disability of each resident making it impossible for each to use stairs. For
each resident to have full enjoyment of the Property, the funicular is required.
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3. With consideration of the factors provided by NBMC Section 20.52.070(D)(3-4)
(Reasonable Accommodations, Decision on Reasonable Accommodation, Factors for
Consideration -Necessity, Factors of Consideration -Fundamental
Alteration/Reasonableness), the requested reasonable accommodation is necessary to
provide the disabled individuals an equal opportunity to use and enjoy a dwelling. If the
requested accommodation is granted, the disabled persons will be able to utilize the
waterside common amenities of the Property. This area is adjacent to the bay and
includes beach area, dock and piers for the boats of the condominium residents. Access
to this area for the disabled residents is required for equal use of the Property by all
residents and is the area of the common outdoor space that is a part of the Property,
thereby enhancing their quality of life. All alternatives have been explored to provide the
same access to the waterside of the Property and the funicular is the design that
complies the most with the Coastal Land Use Plan Polices and is the least disruptive to
the coastal bluff. Approval of the accommodation will not alter the character of the
neighborhood, because the funicular is a nominal accessory feature similar to stairways
and similar features provided to these properties along the bluff to access the bayside
portion of their properties.
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.
Fact in Support of Finding:
1. Allowing the funicular would not impose an undue financial or administrative burden on
the City. The funicular will be constructed and maintained by the condominium
association and will not result in any costs to the City.
Finding:
D. That the requested accommodation will not result in a fundamental alteration in the nature
of the City’s zoning program, as “fundamental alteration” is defined in Fair Housing Laws
and interpretive case law.
Facts in Support of Finding:
1. The Accommodation would not result in any fundamental alterations to the character
and use of condominium property or the neighborhood. The funicular would only provide
access for the condominium owners to use the waterside amenities on the Property.
The funicular will not change or expand the existing use of the condominiums. The
funicular with a single cab is nominal in nature and maintains a design, bulk, and scale
of development that is consistent with the surrounding neighborhood pattern of
development.
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2. The coastal bluff will remain unaltered with the exception of the on-grade track to support
the funicular. The intent of the bluff overlay is to protect the natural bluff to not contribute
to further erosion of the bluff, maintain the visual qualities of the bluff from further
development, and protect coastal views from the bluff top. The bluff will remain visually
intact with the exception of the on-grade track supporting the funicular. The design is
least impactful to the natural bluff and will not impact views. The cab will be parked up
at the condominiums in a garage-type structure that is not visible.
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. The funicular will provide a safe means for disabled residents to access the lower water-
side of the Property. The funicular is the least impactful to the coastal views as the cab
will be parked up towards the existing condominium structure when not in use. Use of
these types of funiculars are common and safe to provide access when an elevator or
wheelchair lift are not possible.
2. The funicular will not result in a direct threat to the health or safety of other individuals
or substantial physical damage to the property of others. The funicular includes a 120-
foot-long-on-grade track. The track would be equipped to automatically move one (1)
cab for up to four (4) passengers. The track would be designed on grade with the
minimum required size of twenty (24) inches wide, thirty-six (36) inches deep and six (6)
inches below grade. The footings will be engineered with the Utilities and Fire footings
already approved by the Coastal Commission, essentially the same footings just
widened to accommodate the additional footing required for the funicular track.
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), (General Requirements for New
Development, Reasonable Accommodations) of Title 21, 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
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opportunity to use and enjoy a dwelling in compliance with Federal and State Fair
Housing Laws.
2. The Project requires an amendment to Coastal Development Permit No. CDP 5-10-298
approved by the Coastal Commission. Approval of the Reasonable Accommodation
authorizes Approval in Concept No. AIC2020005 for the applicant to submit the funicular
to the California Coastal Commission.
3. There are no feasible alternatives for providing an accommodation at the condominium
project that would provide greater consistency with the LCP. Alternatives considered
included: 1) a ski-lift-type gondola that would result in a greater visual disturbance to the
bluff and obstruction to public coastal views in the area due to the use of three (3) to
four (4), ten (10)-foot tall poles; 2) a wheelchair lift that utilizes the existing stairway
handle but deemed unfeasible due to the tight turns of the stairway that restricts the
mobility and wheel chair that restricts stairway usage creating an issue for first
responders; and 3) a subterranean tunnel that would require an extensive amount of
grading and would be detrimental to the coastal bluff stability. The funicular maintains
public coastal views as the cab will be parked at the top of the bluff between uses. The
track will require minimal grading with little disruption to the natural form. The track will
also be painted to match the bluff and preserve the visual integrity of the bluff.
SECTION 4. DECISION.
NOW, THEREFORE, BE IT RESOLVED:
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 Hearing Officer of the City of Newport Beach hereby approves Reasonable
Accommodation No. RA2020-002, subject to the conditions set forth in Exhibit “A,” which
is attached hereto and incorporated by reference.
3. This action shall become final and effective fourteen (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 25th DAY OF AUGUST, 2021.
_____________________________________
William B. Conners, Hearing Officer
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EXHIBIT “A”
CONDITIONS OF APPROVAL
PLANNING
1. The funicular shall be in substantial conformance with the approved site plan and
elevations stamped and dated with the date of this approval (except as modified by
applicable conditions of approval).
2. The approval of the Reasonable Accommodation shall authorize submittal of Approval
in Concept No. 2020005 for the Coastal Development Permit Amendment to the Coastal
Commission for the funicular.
3. If authorized by the California Coastal Commission, a building permit will be required for
the construction funicular and the track.
4. The reasonable accommodation shall lapse if the exercise of rights granted by it are
discontinued for at least one hundred eighty (180) consecutive days.
5. The track and cab shall be painted to match the bluff and natural surroundings. The final
paint color shall be reviewed and approved by the Planning Division prior to final of the
building permit.
6. The construction and structural components of the funicular shall not exceed the minimum
required to provide the four-(4) passenger carrier and shall not limit disruption to the bluff.
7. If all disabled persons occupying the project vacate the property for which the reasonable
accommodation was granted, the funicular and track shall be removed.
8. The Project is subject to all applicable City ordinances, policies, and standards, unless
specifically waived or modified by the conditions of approval.
9. 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
Reasonable Accommodation.
10. 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.
11. 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).
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12. To the fullest extent permitted by law, the 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 Aerie Condominium Funicular including, but not limited to, Reasonable
Accommodation No. RA2020-002 (PA2020-067). This indemnification shall include, but
not be limited to, damages awarded against the City, if any, costs of suit, attorneys' fees,
and other expenses incurred in connection with such claim, action, causes of action, suit
or proceeding whether incurred by applicant, City, and/or the parties initiating or bringing
such proceeding. The applicant shall indemnify the City for all of City's costs, attorneys'
fees, and damages which City incurs in enforcing the indemnification provisions set forth
in this condition. The applicant shall pay to the City upon demand any amount owed to the
City pursuant to the indemnification requirements prescribed in this condition.
17
Attachment No. HO 2
Draft Resolution for Denial
18
RESOLUTION NO. HO2021-###
A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, DENYING REASONABLE
ACCOMODATION NO. RA2020-002 FOR THE PROPERTY
LOCATED AT 101 CARNATION AVENUE (PA2020-067)
THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS
FOLLOWS:
SECTION 1. STATEMENT OF FACTS.
1.An application was filed by Brion Jeannette, architect requesting approval of a
reasonable accommodation on behalf of Rick Julian (“Applicant”) , with respect to
property located at 101 Carnation Avenue, Newport Beach, California and legally
described as Lot 1 in Tract 16882, Block D in the City of Newport Beach, County of
Orange, State of California, Assessor’s Parcel No. 052-013-40 (“Property”).
2.The Applicant has submitted a reasonable accommodation application requesting
relief from Section 20.28.040 Bluff (B) Overlay District of the Newport Beach
Municipal Code (“NBMC”) and from Title 21 of the (Local Coastal Program
Implementation Plan) to allow a funicular below the 50.7-foot contour line. The
funicular includes a one-hundred and twenty (120)-foot-long-on-grade track to
automatically move one (1) cab for up to four (4) passengers. The funicular is required
to accommodate disabled residents to the waterside amenities on the private seven (7)-
unit condominium property (“Accommodation”).
3.The Property is designated Multiple Residential (RM) by the General Plan Land
Use Element and is located within the Multiple Residential (RM) Bluff Development –
Carnation Avenue Overlay Zoning District.
4.The Property is located within the coastal zone. The Coastal Land Use Plan category
is Multiple Unit Residential (RM-D) 20.0-29.9 du/ac and it is located within the
Multiple Residential (RM) Bluff Development Carnation Avenue Overlay Coastal Zoning
District.
5.The Property is located within the California Coastal Commission jurisdiction and
requires an Approval in Concept from the City for the Applicant to submit an
amendment to the existing Coastal Development Permit No. CDP 5-10-298 to the
Coastal Commission for the construction of the funicular.
6.A telephonic public hearing was held on August 25, 2021, on Zoom, observing
restrictions due to COVID-19. A notice of time, place and purpose of the public
hearing was given in accordance with the California Government Code Section
54950 et seq. (“Ralph M. Brown Act”) and Chapter 21.62 (Public Hearings) of the
NBMC. Evidence, both written and oral, was presented to, and considered by, the
Hearing Officer at this public hearing.
19
Hearing Officer Resolution No. HO2021-###
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 denies Reasonable
Accommodation No. RA2020-002, subject to the conditions set forth in Exhibit A, which is
attached hereto and incorporated by reference.
2.This action shall become final and effective fourteen (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 25th DAY OF AUGUST, 2021.
_____________________________________
________________________, Hearing Officer
20
Attachment No. HO 3
Supplemental Applicant Information
21
3
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
Project Name: Aerie
Applicant: Advanced Group 99-D
Property Address: 201-205 Carnation Ave, 207 Carnation Ave., and a portion of 101 Bayside Place
This “Request for Reasonable Accommodation Supplemental Information” is submitted by Advanced
Group 99-D, the owner/developer of property commonly known as “Aerie.” This Request is filed
concurrently with and to support a CDP Application for the approval of a funicular to allow persons
with disabilities to enjoy the full use of the Aerie property pursuant to Chapter 20.98 of the Newport
Beach Municipal Code and federal and state fair housing laws (the “Fair Housing Laws”).
The Property. Aerie is located at the corner of Carnation and Ocean in
Corona del Mar. In 2011, the Coastal Commission approved CDP 5-10-
298 for the blufftop condominium development, which is nearing
completion. In 2013, the Coastal Commission approved CDP 5-12-214
for the now completed gangway, dock, and pier construction. When
the blufftop development is completed in 2020, Aerie will consist of
seven condominiums with parking and common areas on the upper
“street side,” and recreational amenities, including the docks, for the
use of the residents and guests on the lower “water side.”
The Staircase. As seen in the photo to the left (taken early in
construction), an existing staircase connects the upper and lower
portions of the property (the “Staircase”). The Staircase consists of 88
steps at a very steep angle. The photo at the top of the page helps
provide perspective on the length and angle of descent. The Staircase
is the only means by which Aerie residents and visitors may access and
use the property on both levels.
PA2020-067
22
4
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
Reasonable Accommodations under the City’s LCP. Section
21.16.020E of the City’s Municipal Code, which has been
certified by the Coastal Commission as part of the City’s LCP,
authorizes the City to grant “reasonable accommodations”
without requiring strict compliance with the LCP and the
Coastal Act “when needed to provide an individual with a
disability an equal opportunity to use and enjoy a dwelling
in compliance with” the Fair Housing Laws. Although the
Fair Housing Laws are directed at “housing providers,” this
provision of the City’s LCP clearly intends for the Fair
Housing Laws to provide the standards by which reasonable
accommodations are to be made by the City in granting
reasonable accommodations for dwellings in the City’s
Coastal Zone. When Section 21.16.020E is applied to Aerie,
the result is that if (i) there is no other feasible way to
provide disabled persons access to the full use and
enjoyment of Aerie and (ii) the Aerie project is otherwise
consistent with the LCP and the Coastal Act, then the
requested reasonable accommodation should be provided.
The Requested Reasonable Accommodation. This application requests a reasonable accommodation
to allow the approval of a Coastal Development Permit for the installation of a funicular adjacent to
the Staircase. The funicular is needed to:
Allow persons with disabilities to enjoy the full use of the Aerie property, as addressed by the Fair
Housing Laws, case law implementing and interpreting the Fair Housing Laws,” Section 20.52.070
of the City’s Municipal Code, and Section 21.16.020E of the City’s Municipal Code and Local Coastal
Implementation Plan; and
Assure that, pursuant to Government Code Section 65040.12 and Public Resources Code Section
30013, persons with disabilities can use the Aerie property in the same manner as those without
disabilities.
QUESTIONS FROM THE CITY’S REASONABLE ACCOMMODATION REQUEST FORM:
1. Is this application being submitted by a person with a disability, that person’s representative, or a
developer or provider of housing for individuals with a disability?
Consistent with the requirements of the Fair Housing Laws as referenced by the City’s LCP, this
application is submitted by Advanced Group 99-D, the developer of Aerie, on behalf of both specified
individuals (subject to appropriate confidentiality with respect to medical histories) and all persons with
temporary or permanent disabilities who in the future may reside in or visit the property.
21.16.020E.
Reasonable Accommodations.
The review authority may grant reasonable
accommodations (adjustments) 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. A
request for reasonable accommodation
requiring a coastal development permit
may be approved or conditionally approved
by the City if it is consistent with the certified
Local Coastal Program and the California
Coastal Act to the extent feasible, and there
are no feasible alternatives for providing an
accommodation at the dwelling that would
provide greater consistency with the
certified Local Coastal Program.
(Emphasis added.)
PA2020-067
23
5
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
2. Does the applicant, or individual(s) on whose behalf the application is being made, have physical
or mental impairments that substantially limit one or more of such person’s major life activities? If
so, please state the impairment(s) and provide documentation of such impairment(s).
Yes. The average age of known future Aerie residents is approximately 70 years. Set forth below are
descriptions of (i) known individuals who will either reside at or visit Aerie and (ii) their individual
disabilities which require a reasonable accommodation to access the entire Aerie property. To protect
the confidentiality of the medical information of these individuals, doctors’ statements pertaining to
each individual will be provided to the Hearing Officer at the time of the hearing so that the Hearing
Officer can review and confirm for the record that there is medical information verifying these
disabilities. That documentation will be presented in the strictest of confidence and will not be not
authorized for public distribution or publication. A generic description of the individuals is as follows:
Individual 1: Individual 1 will be an Aerie resident. He has had a hip replacement and suffers from
nerve damage, limiting his ability to navigate the steep and lengthy stairs.
Individual 2: Individual 2 is the mother of an Aerie resident who will be a frequent visitor. She is
confined to a wheelchair as a result of her medical conditions. She is unable to use the stairs.
Individual 3: Individual 3 is the nephew of Aerie residents and also a resident. He suffers from mental
impairments which make it dangerous to use the stairs.
Individual 4: Individual 4 is a senior who will be a resident. She has suffered serious knee injuries
requiring recent surgery. Her condition is not compatible with use of the stairs.
Individual 5: Individual 5 is the 89-year old mother of one of the Aerie owners and will be living at
Aerie. Due to her age, she is unable to use the stairs.
Individual 6: Individual 6 is the 90-year old mother of another of Aerie’s owners and also will be
living at Aerie. Due to her age she is unable to use the stairs.
Individual 7: Individual 7 is a close friend of Aerie owners who lives across the street from Aerie. He
and his wife will be visiting Aerie regularly. It also is possible that Individual 7 and his wife will live
at Aerie. Individual 7 suffers from cancer and is unable to use the stairs.
The Fair Housing Laws make it unlawful to refuse to make reasonable accommodations needed to
afford persons with disabilities an “equal opportunity to use and enjoy a dwelling.” Notably, this
protection covers not only home seekers with disabilities, but also buyers and renters without disabilities
who live or are associated with individuals with disabilities. That would include, among others, children,
parents, friends, spouses, roommates, subtenants, service providers, and others with disabilities who
may come to the property in the future, including some of the individuals listed above. It simply is not
possible, however, to identify and submit an application for each individual who in the future may
require a reasonable accommodation. Nor is it possible to submit an application and receive instant
approval from the City when, for instance, a boat repair service person with a disability shows up to
work on a resident’s boat. Therefore, this Request is made not only on behalf of the seven individuals
listed above, but also for the benefit of those presently unknown persons with disabilities who may in
the future require the reasonable accommodation provided by the proposed funicular.
PA2020-067
24
6
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
3. From which specific Zoning Code provisions, policies or
practices are you seeking an exception or modification?
Aerie is located at the corner of Ocean and Carnation within the
Bluff (“B”) Overlay Coastal Zoning District. The construction of
the funicular will allow persons with disabilities to move from
the upper portion of the property (which contains the
residential units) to the lower portion (which contains amenities
including the beach, a concrete deck, and docks for the
residents’ boats). The proposed funicular would, in part, be
below the 50.7-foot contour line set forth in Section
21.28.040(D)(4)(a)(1) of the LCP Implementation Plan.
Additional relevant provisions of the City’s LCP read as follows:
LUP, Pages 4-78,79: “Corona del Mar is one of the few areas in the coastal zone where there is
extensive development of the bluff face; specifically, residential development on Avocado Avenue,
Pacific Drive, Carnation Avenue, and Ocean Boulevard. The initial subdivision and development of
these areas occurred prior to the adoption of policies and regulations intended to protect coastal
bluffs and other landforms. Development in these areas is allowed to continue on the bluff face to
be consistent with the existing development pattern and to protect coastal views from the bluff top.
However, development on the bluff face is controlled to minimize further alteration.”
LUP Policy 4.4.3-8: “Prohibit development on bluff faces, except private development on coastal
bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar
determined to be consistent with the predominant line of existing development or public
improvements providing public access, protecting coastal resources, or providing for public safety.
Permit such improvements only when no feasible alternative exists and when designed and
constructed to minimize alteration of the bluff face, to not contribute to further erosion of the bluff
face, and to be visually compatible with the surrounding area to the maximum extent feasible.”
LUP Policy 4.4.3-9: “Where principal structures exist on coastal bluff faces along Ocean Boulevard,
Carnation Avenue and Pacific Drive in Corona del Mar, require all new development to be sited in
accordance with the predominant line of existing development in order to protect public coastal
views. Establish a predominant line of development for both principle structures and accessory
improvements. The setback shall be increased where necessary to ensure safety and stability of the
development.”
4. Please explain why the specific exception or modification requested is necessary to provide one
or more individuals with a disability an equal opportunity to use and enjoy the residence. Please
provide documentation, if any, to support your explanation.
As shown in the photos on the first page of this attachment, a reasonable accommodation is needed to
allow access to the concrete deck, docks, or beach for those with disabilities for whom going up and
down the long, steep staircase would be unreasonably difficult, dangerous, and/or impossible. As one
example, without the proposed funicular, a resident with a disability would not be able to access his or
PA2020-067
25
7
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
her boat moored in the docks on the property. As noted earlier, the protections of the Fair Housing Laws
also extend to visitors and even to some persons who do not have a disability. For instance, under the
Fair Housing Laws, if an elderly parent visiting Aerie cannot physically navigate the stairway to join a
family gathering on the concrete deck below, not only would the elderly parent be denied equal
enjoyment of the property’s amenities, but the family members below would be denied reasonable use
and enjoyment because they would not be able to enjoy the company of that elderly parent. Similarly,
if a family member kept the elderly parent company in the main building above while the rest of the
family enjoyed the activities on the lower level, under the Fair Housing Laws that person, too, would be
denied equal use and enjoyment of the residence.
5. Please explain why the requested accommodation will affirmatively enhance the quality of life of
the individual with a disability. Please provide documentation, if any, to support your explanation.
For residents of Aerie, use and enjoyment of the outdoor common facilities that are part of the property
is a central part of their condominium ownership and the coastal-oriented activities that they would be
denied without the requested reasonable accommodation. That use would include use and enjoyment
of Aerie by their guests and service providers.
6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy
the housing type of their choice absent the accommodation. Please provide documentation, if any,
to support your explanation.
Without the accommodation, there is no other way to move between the upper and lower levels. For
Aerie owners, Aerie and its amenities represent the “housing type of their choice.” As stated in the
previous answer, the use of the common areas of Aerie is central to that choice and, absent the
reasonable accommodation, those with disabilities would generally be denied the use and enjoyment
of the lower level common areas.
7. If the applicant is a developer or provider of housing for individuals with a disability, please explain
why the requested accommodation is necessary to make your facility economically viable in light of
the relevant market and market participants. Please provide documentation, if any, to support your
explanation.
This Request is not made to address economic viability.
8. If the applicant is a developer or provider of housing for individuals with a disability, please explain
why the requested accommodation is necessary for your facility to provide individuals with a
disability an equal opportunity to live in a residential setting taking into consideration the existing
supply of facilities of a similar nature and operation in the community. Please provide
documentation, if any, to support your explanation.
The applicant is developing housing which will be occupied or visited, in some cases, by persons with
disabilities as defined by the Fair Housing Laws. However, this is not a development restricted to or
intended solely for persons with disabilities, which appears to be the focus of this question.
9. Please add any other information that may be helpful to the applicant to enable the City to
determine whether the findings set forth in Chapter 20.98 can be made (Use additional pages if
necessary.)
PA2020-067
26
8
AERIE
ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
The following information is relevant to the standards set by the Fair Housing Laws:
Is the Proposed Funicular Consistent with the City’s LCP and the Coastal Act “to the Extent
Feasible”? Neither the LCP nor the Coastal Act bans funiculars. Instead, a proposed funicular is
evaluated within the specific context of the proposal. Approving a funicular for Aerie would not set
a new precedent, but, rather, would echo prior decisions. For example, a funicular was approved for
a residence at 3225 Ocean Boulevard. That property, shown in the photo to the left prior to its
funicular approval, is located on a bluff, with a then-existing stairway
to its garage at the toe of the bluff. While the scale of the properties
may be different, the relationship between the blufftop residence
area and ancillary facilities at the toe joined by a pre-Coastal Act
stairway is quite comparable. In approving the Ocean Boulevard
funicular, the Coastal Commission recognized the need to provide
access to the garage, as well as the fact that the funicular would
“traverse the bluff face and provide a handicap access between the
residence and the garage.” Notably, this decision was made before
the adoption of the City’s LCP and, therefore, without a specific
Request for Reasonable Accommodation guided by the Fair Housing
Laws. Nonetheless, the Commission recognized the need for
accessibility between the different elevations of the property.
Similarly, a funicular at Aerie will generally allow full use of the Aerie property by persons with
disabilities. Section 21.16.020E of the City’s LCP and the Fair Housing Laws which guide its
implementation appear to compel the approval of a “reasonable accommodation” in this case.
Is there a Feasible Alternative that would Provide Greater Consistency with the City’s LCP? We
have evaluated several options for providing access between Aerie’s upper and lower levels. These
include above grade funiculars, ski lift-type cable gondola
systems, wheelchair lifts, and subterranean tunnels
leading to the existing concrete pad. Notably, this concrete
pad was the landing for a funicular operated on the
property prior to the Coastal Act to provide access to the
lower portion of the property. That funicular track was in
the general location of the current staircase as shown in
the 1974 photo to the right (see arrow). After reviewing
the capabilities, impacts, and aesthetics of each option, we
concluded that a funicular is the least noticeable, least
impactful, and most respectful of LCP policies.
We would be happy to provide any further information requested to support this request. Thank you.
PA2020-067
27
470 Old Newport Blvd • Newport Beach, CA 92663 • T: 949.645.5854 F: 949.645.5983
Members AIA & NCARB • www.customarchitecture.com Energy Conscious Design
July 20, 2021
Attn: Melinda Whelan
City of Newport Beach
Planning Division
100 Civic Center Drive
Newport Beach, CA 9265
Re: Aerie Condo
179 Carnation Ave, Corona del Mar
Dear Melinda,
As requested, below are elaborations on the alternatives for providing access between the Aerie’s upper
rand lower levels. Should you need any other information, please let me know. Thank you.
1) Ski lift‐type cable gondola
a. To build a ski lift‐type cable gondola system, it would require a minimum of 10’ tall pole
and roughly 3‐4 poles along the path of travel. This would create an eye sore to the
coastal bluff and obstruct the neighbor’s view.
2) Wheelchair lift
a. A wheelchair lift has a 31.5” wide by 48” long platform and utilizes the handrail to travel
along the path of the stairway. It is generally most suitable for straight stairway or
gentle turn stair with a 90 degree or greater angle. This is because the lift requires a
generous amount of room for the platform to maneuver as it makes the turn. On the
Aerie project, there are several tight turns at the top of the stairs with an angle of 38
and 45 degree. This restricts the platform from making the turn. Additionally, when the
wheelchair lift is in operation, it blocks the stairs from usage and could create an issue
for the first responder in the event of an emergency.
3) Subterranean tunnel
a. Even though, a subterranean tunnel would have the least visual impact from the bay, it
also requires an extensive amount of grading and would be detrimental to the coastal
bluff.
28
Attachment No. HO 4
Conceptual Plans
29
30
31
32
33
UTILITYNATURAL GRADE3' INERIOR DIM.4'-0"TYPICAL EXTERIOR FOOTING2'PLAN VIEWSECTION B-BSECTION A-AATYPICAL EXTERIOR FOOTINGTYPICAL EXTERIOR FOOTINGABB2'-0"#5 @6" O.C.ACH WA,EACH FACE2'-0"4'-0"ADD #5EACH FACEF'c = 4500, W/C = 0.45ADD #5 EACH FACE#5@6 O.C.EACH FACEEACH WAYUTILITYUTILITY(2) #5 CONT.TOP & BOTT.2" CLEARCONT. CONCRETETIE BEEM2'-0"NATURAL GRADE #5 @6" O.C.EACH WA, EACH FACETIE BEAM(2) #5 CONT.TOP & BOTT.(2) #5 CONT.TOP & BOTT.TIE BEEM(2) #5 CONT.TOP & BOTT.1B11ASECTION C-CTYPICAL EXTERIOR FOOTING2CC2'-6"2'-0"2'6"UTILITYEXISTINGSTAIRS $HANDRAIL12" X 12" X 12" CONCRETE FOOTINGNATURAL GRADETYP. GUARDRAIL FOOTING AT MAX. 6'-0" O.C.31'-0"1'-0"2" Ø X 10" STEEL SLEEVE1.5" Ø X 42" GUARDRAIL POSTS-1.0*392(%8-3240%2PROJECT NAME:ADDRESS :PLOT DATE:DESIGNER:SHEET NAME:SHEET NUMBER:PROJECT NUMBER:DESCRIPTIONDATENO.REVISIONSPROJECT MANAGER:ARCHITECT:DEVELOPER:OWNER : AERIEAERIE CONDOMINIUM 201,205 & 207 CARNATION AVENUE CORONA DEL MAR,CABJAN/AN/AA.T.K.V.134
Jeannette <BrionJ@bja-inc.com>, "Wun Sze Li (WunSzeL@bja-inc.com)"
<WunSzeL@bja-inc.com>
Subject: Condition 7: Aerie Funicular Application
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the
sender and know the content is safe.
Jim:
Brion Jeannette shared with me your comments on Condition 7 and I wanted to add additional thoughts
to the discussion. It’s been a long day, so I apologize in advance for any typos. Please forward this email
to the Hearing Officer.
Our concern with Condition 7 is that it focuses exclusively on specific residents, which is not consistent
with Fair Housing Laws. My guess is that the word “individuals” is what is causing different perspectives
on this issue. Following Section 20.52.070(C)(1) of the Municipal Code, our application (attached for
convenience) was not submitted by specific individuals, but rather by Advanced Group 99-D, the
developer of Aerie, “for the benefit of one or more individuals with a disability,” as permitted by Section
20.52.070(C)(1):
“Consistent with the requirements of the Fair Housing Laws as referenced by the City’s LCP, this
application is submitted by Advanced Group 99-D, the developer of Aerie, on behalf of both
specified individuals (subject to appropriate confidentiality with respect to medical histories) and
all persons with temporary or permanent disabilities who in the future may reside in or visit the
property.”
It is our perspective that the LCP (Title 21) and the Planning and Zoning ordinance (Title 20) cannot be
interpreted to apply only to specific residents currently residing at Aerie and, therefore, cannot require
the removal of the funicular when those specific individuals no longer reside at Aerie as Condition 7
requires. That is because both Title 20 and Title 21 require that the reasonable accommodations be “in
compliance with Federal and State fair housing laws.” We previously addressed this issue in greater
detail on Pages 2-4 in a letter I sent you in June of 2018 when we were first considering the
funicular. I’ve attached that letter for the benefit of the Hearing Officer and to make sure it’s in the
record, but our key points (some new) are these:
•It is worth noting that, as set forth a “Joint Statement of the Department of Housing and Urban
Development and the Department of Justice” dated November 10, 2016, that land use and
zoning laws or practices violate the Fair Housing Act by “[r]efusing to provide reasonable
accommodations to land use or zoning policies when such accommodations may be necessary
to allow persons with disabilities to have an equal opportunity to use and enjoy the housing . . .
.”
•The City’s Municipal Code and LCP expressly intend that “reasonable accommodations” be
provided to assure that no individual (as opposed to no “resident”) is denied the equal
enjoyment and use of a residential property, using Fair Housing Law provisions as the
measuring stick. Therefore, the principles contained in the Fair Housing Laws need to be
applied, not ignored or compromised, in addressing the Aerie application. To say “we’re
complying with the Fair Housing Laws but not doing what they require” would be inconsistent
with both the LCP and Municipal Code.
From: "Paone, Tim" <tpaone@coxcastle.com>
Date: August 23, 2021 at 9:41:49 PM PDT
To: "Campbell, Jim" <JCampbell@newportbeachca.gov> Cc: Richard
Julian <rjulian@advancedrealestate.com>, Brion
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
• It is clear that the Fair Housing Laws are intended to provide accommodations not only for
specific residents of a home, but also for any person with a disability who may visit a residence.
Drawing directly from a May 17, 2004, Joint Statement of the Department of Housing and Urban
Development and the Department of Justice, “reasonable accommodations” analysis under the
federal Fair Housing Act (the “Act”) can be broken down into the following:
o What is Prohibited? The Act makes it unlawful to refuse to make reasonable
accommodations needed to afford persons with disabilities an “equal opportunity to use and
enjoy a dwelling.” The Act protects not only home seekers with disabilities, but also buyers
and renters without disabilities who live or are associated with individuals with disabilities.
That would include, among others, children, parents, friends, spouses, roommates,
subtenants, or other associates who have disabilities. When applying this standard to the
City’s LCP, the proposed funicular must be viewed as providing a reasonable accommodation
not just for the use of specifically identified persons residing at Aerie, but also to “reasonably
accommodate” the needs of any disabled person and those who live with or are associated
with disabled persons at any time in the future.
o What Constitutes a Disability? Under the Act – and, therefore, under the City’s LCP -
"physical or mental impairment" has very broad meaning. It includes diseases and conditions
such as orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection, mental
retardation, emotional illness, drug addiction (other than addiction caused by current, illegal
use of a controlled substance), and alcoholism. When viewed in the context of friends,
family, aging residents, and visitors, among others, who might be present at Aerie at any
given time, it should be obvious that the reasonable accommodation requested is not for the
sole benefit of three current residents with known disabilities.
o What is a “Reasonable Accommodation”? Under the Act – and, therefore, under the City’s
LCP - a “reasonable accommodation” is a change, exception, or adjustment to a rule, policy,
practice, or service that may be necessary for a person with a disability to have an equal
opportunity to use and enjoy a dwelling, including public and common use spaces. With
respect to Aerie, the funicular would allow all persons/individuals with disabilities who reside
at or visit the property to enjoy the full use of the property.
The proposed funicular is needed to allow access to the deck, docks, or beach for individuals (not
specific individuals, but all individuals) for whom going up and down the long, steep staircase would
simply be difficult, dangerous, or impossible. This also extends to visitors and, according to the Fair
Housing Laws, even to some persons who themselves do not have a disability. For example, if an elderly
parent visiting Aerie cannot physically navigate the stairway to join a family gathering on the deck
below, not only would the elderly parent be denied equal enjoyment of the property’s amenities, but
the family members below would be denied reasonable use and enjoyment of the residence because
they would not be able to enjoy the company of that elderly parent. Similarly, if a family member kept
the elderly parent company in the main building above while the rest of the family enjoyed the activities
on the lower level, that person, too, would be denied equal use and enjoyment of the residence.
Stated another way, a “refusal to make reasonable accommodations” to “the City’s coastal zoning and
land use regulations, policies, and practices” to allow disabled persons access to the lower portion of
Aerie would not be consistent with the City’s LCP or the Fair Housing Laws. It simply is not reasonable or
practical for the City to require either that (i) any person with a disability who may visit Aerie first go
through the City’s formal and lengthy reasonable accommodations hearing process in order to make
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that visit or (ii) the reasonable accommodations be removed when residents specified by the City no
longer reside at Aerie.
Finally, if the LCP and the Planning and Zoning ordinance are read in concert with the Fair Housing Laws,
it becomes clear that references to “individuals” does not mean specifically identified residents of a
building or that the reasonable accommodations serve only those specifically identified individuals.
Rather, “individual” is used generically, just as “person” is used generically in the Fair Housing Laws.
Reasonable accommodation are intended to serve any “individual” or “person” with a disability who
may reside at or visit the property so that they will be able to access to the entire property. That, in
turn, requires the installation of the funicular and its retention as long as Aerie is used for residential
purposes.
If Staff’s concern is compliance with Section 20.52(E)(6)(b), then that section should be read in
coordination with the Fair Housing Laws. Doing so would not yield the proposed Condition 7, which
directly contradicts the Fair Housing Laws. Instead, we propose replacing Condition 7 with the following
finding and condition to achieve compliance:
Finding: “By its nature and design, Aerie is a residential complex with upper and lower levels
comprising the area which residents and visitors will use to fully enjoy the residences. In order for
persons with disabilities to do so equally, there must be a reasonable means for them to move
between the two levels without navigating the steep and lengthy staircase on the bluff face.
Therefore, as long as Aerie remains a residential housing structure, the funicular will be
considered a reasonable accommodation necessary to provide full use and enjoyment of the
property to residents and visitors.”
Condition: “Should all residential use of Aerie be discontinued in the future, then, pursuant to
Section 20.52(E)(6)(b) of the Municipal Code, this reasonable accommodation shall terminate
and, subject to permitting requirements of state and local agencies with jurisdiction over the
removal of the funicular, the funicular shall be removed.”
We will be available to address this issue at Wednesday’s hearing. Jim, thanks again for your efforts on
this. They are much appreciated.
Tim Paone
Cox, Castle & Nicholson LLP
3121 Michelson Drive | Suite 200 | Irvine, CA 92612
direct: 949.260.4655 | main: 949.260.4600
tpaone@coxcastle.com | vcard | bio | website
For more information, visit our blog Lay of the Land
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Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
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SUPPLEMENTAL INFORMATION FORM
Project Name: Aerie
Applicant: Advanced Group 99-D
Property Address: 201-205 Carnation Ave, 207 Carnation Ave., and a portion of 101 Bayside Place
This “Request for Reasonable Accommodation Supplemental Information” is submitted by Advanced
Group 99-D, the owner/developer of property commonly known as “Aerie.” This Request is filed
concurrently with and to support a CDP Application for the approval of a funicular to allow persons
with disabilities to enjoy the full use of the Aerie property pursuant to Chapter 20.98 of the Newport
Beach Municipal Code and federal and state fair housing laws (the “Fair Housing Laws”).
The Property. Aerie is located at the corner of Carnation and Ocean in
Corona del Mar. In 2011, the Coastal Commission approved CDP 5-10-
298 for the blufftop condominium development, which is nearing
completion. In 2013, the Coastal Commission approved CDP 5-12-214
for the now completed gangway, dock, and pier construction. When
the blufftop development is completed in 2020, Aerie will consist of
seven condominiums with parking and common areas on the upper
“street side,” and recreational amenities, including the docks, for the
use of the residents and guests on the lower “water side.”
The Staircase. As seen in the photo to the left (taken early in
construction), an existing staircase connects the upper and lower
portions of the property (the “Staircase”). The Staircase consists of 88
steps at a very steep angle. The photo at the top of the page helps
provide perspective on the length and angle of descent. The Staircase
is the only means by which Aerie residents and visitors may access and
use the property on both levels.
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
Reasonable Accommodations under the City’s LCP. Section
21.16.020E of the City’s Municipal Code, which has been
certified by the Coastal Commission as part of the City’s LCP,
authorizes the City to grant “reasonable accommodations”
without requiring strict compliance with the LCP and the
Coastal Act “when needed to provide an individual with a
disability an equal opportunity to use and enjoy a dwelling
in compliance with” the Fair Housing Laws. Although the
Fair Housing Laws are directed at “housing providers,” this
provision of the City’s LCP clearly intends for the Fair
Housing Laws to provide the standards by which reasonable
accommodations are to be made by the City in granting
reasonable accommodations for dwellings in the City’s
Coastal Zone. When Section 21.16.020E is applied to Aerie,
the result is that if (i) there is no other feasible way to
provide disabled persons access to the full use and
enjoyment of Aerie and (ii) the Aerie project is otherwise
consistent with the LCP and the Coastal Act, then the
requested reasonable accommodation should be provided.
The Requested Reasonable Accommodation. This application requests a reasonable accommodation
to allow the approval of a Coastal Development Permit for the installation of a funicular adjacent to
the Staircase. The funicular is needed to:
Allow persons with disabilities to enjoy the full use of the Aerie property, as addressed by the Fair
Housing Laws, case law implementing and interpreting the Fair Housing Laws,” Section 20.52.070
of the City’s Municipal Code, and Section 21.16.020E of the City’s Municipal Code and Local Coastal
Implementation Plan; and
Assure that, pursuant to Government Code Section 65040.12 and Public Resources Code Section
30013, persons with disabilities can use the Aerie property in the same manner as those without
disabilities.
QUESTIONS FROM THE CITY’S REASONABLE ACCOMMODATION REQUEST FORM:
1. Is this application being submitted by a person with a disability, that person’s representative, or a
developer or provider of housing for individuals with a disability?
Consistent with the requirements of the Fair Housing Laws as referenced by the City’s LCP, this
application is submitted by Advanced Group 99-D, the developer of Aerie, on behalf of both specified
individuals (subject to appropriate confidentiality with respect to medical histories) and all persons with
temporary or permanent disabilities who in the future may reside in or visit the property.
21.16.020E.
Reasonable Accommodations.
The review authority may grant reasonable
accommodations (adjustments) 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. A
request for reasonable accommodation
requiring a coastal development permit
may be approved or conditionally approved
by the City if it is consistent with the certified
Local Coastal Program and the California
Coastal Act to the extent feasible, and there
are no feasible alternatives for providing an
accommodation at the dwelling that would
provide greater consistency with the
certified Local Coastal Program.
(Emphasis added.)
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
2. Does the applicant, or individual(s) on whose behalf the application is being made, have physical
or mental impairments that substantially limit one or more of such person’s major life activities? If
so, please state the impairment(s) and provide documentation of such impairment(s).
Yes. The average age of known future Aerie residents is approximately 70 years. Set forth below are
descriptions of (i) known individuals who will either reside at or visit Aerie and (ii) their individual
disabilities which require a reasonable accommodation to access the entire Aerie property. To protect
the confidentiality of the medical information of these individuals, doctors’ statements pertaining to
each individual will be provided to the Hearing Officer at the time of the hearing so that the Hearing
Officer can review and confirm for the record that there is medical information verifying these
disabilities. That documentation will be presented in the strictest of confidence and will not be not
authorized for public distribution or publication. A generic description of the individuals is as follows:
Individual 1: Individual 1 will be an Aerie resident. He has had a hip replacement and suffers from
nerve damage, limiting his ability to navigate the steep and lengthy stairs.
Individual 2: Individual 2 is the mother of an Aerie resident who will be a frequent visitor. She is
confined to a wheelchair as a result of her medical conditions. She is unable to use the stairs.
Individual 3: Individual 3 is the nephew of Aerie residents and also a resident. He suffers from mental
impairments which make it dangerous to use the stairs.
Individual 4: Individual 4 is a senior who will be a resident. She has suffered serious knee injuries
requiring recent surgery. Her condition is not compatible with use of the stairs.
Individual 5: Individual 5 is the 89-year old mother of one of the Aerie owners and will be living at
Aerie. Due to her age, she is unable to use the stairs.
Individual 6: Individual 6 is the 90-year old mother of another of Aerie’s owners and also will be
living at Aerie. Due to her age she is unable to use the stairs.
Individual 7: Individual 7 is a close friend of Aerie owners who lives across the street from Aerie. He
and his wife will be visiting Aerie regularly. It also is possible that Individual 7 and his wife will live
at Aerie. Individual 7 suffers from cancer and is unable to use the stairs.
The Fair Housing Laws make it unlawful to refuse to make reasonable accommodations needed to
afford persons with disabilities an “equal opportunity to use and enjoy a dwelling.” Notably, this
protection covers not only home seekers with disabilities, but also buyers and renters without disabilities
who live or are associated with individuals with disabilities. That would include, among others, children,
parents, friends, spouses, roommates, subtenants, service providers, and others with disabilities who
may come to the property in the future, including some of the individuals listed above. It simply is not
possible, however, to identify and submit an application for each individual who in the future may
require a reasonable accommodation. Nor is it possible to submit an application and receive instant
approval from the City when, for instance, a boat repair service person with a disability shows up to
work on a resident’s boat. Therefore, this Request is made not only on behalf of the seven individuals
listed above, but also for the benefit of those presently unknown persons with disabilities who may in
the future require the reasonable accommodation provided by the proposed funicular.
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
3. From which specific Zoning Code provisions, policies or
practices are you seeking an exception or modification?
Aerie is located at the corner of Ocean and Carnation within the
Bluff (“B”) Overlay Coastal Zoning District. The construction of
the funicular will allow persons with disabilities to move from
the upper portion of the property (which contains the
residential units) to the lower portion (which contains amenities
including the beach, a concrete deck, and docks for the
residents’ boats). The proposed funicular would, in part, be
below the 50.7-foot contour line set forth in Section
21.28.040(D)(4)(a)(1) of the LCP Implementation Plan.
Additional relevant provisions of the City’s LCP read as follows:
LUP, Pages 4-78,79: “Corona del Mar is one of the few areas in the coastal zone where there is
extensive development of the bluff face; specifically, residential development on Avocado Avenue,
Pacific Drive, Carnation Avenue, and Ocean Boulevard. The initial subdivision and development of
these areas occurred prior to the adoption of policies and regulations intended to protect coastal
bluffs and other landforms. Development in these areas is allowed to continue on the bluff face to
be consistent with the existing development pattern and to protect coastal views from the bluff top.
However, development on the bluff face is controlled to minimize further alteration.”
LUP Policy 4.4.3-8: “Prohibit development on bluff faces, except private development on coastal
bluff faces along Ocean Boulevard, Carnation Avenue and Pacific Drive in Corona del Mar
determined to be consistent with the predominant line of existing development or public
improvements providing public access, protecting coastal resources, or providing for public safety.
Permit such improvements only when no feasible alternative exists and when designed and
constructed to minimize alteration of the bluff face, to not contribute to further erosion of the bluff
face, and to be visually compatible with the surrounding area to the maximum extent feasible.”
LUP Policy 4.4.3-9: “Where principal structures exist on coastal bluff faces along Ocean Boulevard,
Carnation Avenue and Pacific Drive in Corona del Mar, require all new development to be sited in
accordance with the predominant line of existing development in order to protect public coastal
views. Establish a predominant line of development for both principle structures and accessory
improvements. The setback shall be increased where necessary to ensure safety and stability of the
development.”
4. Please explain why the specific exception or modification requested is necessary to provide one
or more individuals with a disability an equal opportunity to use and enjoy the residence. Please
provide documentation, if any, to support your explanation.
As shown in the photos on the first page of this attachment, a reasonable accommodation is needed to
allow access to the concrete deck, docks, or beach for those with disabilities for whom going up and
down the long, steep staircase would be unreasonably difficult, dangerous, and/or impossible. As one
example, without the proposed funicular, a resident with a disability would not be able to access his or
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
her boat moored in the docks on the property. As noted earlier, the protections of the Fair Housing Laws
also extend to visitors and even to some persons who do not have a disability. For instance, under the
Fair Housing Laws, if an elderly parent visiting Aerie cannot physically navigate the stairway to join a
family gathering on the concrete deck below, not only would the elderly parent be denied equal
enjoyment of the property’s amenities, but the family members below would be denied reasonable use
and enjoyment because they would not be able to enjoy the company of that elderly parent. Similarly,
if a family member kept the elderly parent company in the main building above while the rest of the
family enjoyed the activities on the lower level, under the Fair Housing Laws that person, too, would be
denied equal use and enjoyment of the residence.
5. Please explain why the requested accommodation will affirmatively enhance the quality of life of
the individual with a disability. Please provide documentation, if any, to support your explanation.
For residents of Aerie, use and enjoyment of the outdoor common facilities that are part of the property
is a central part of their condominium ownership and the coastal-oriented activities that they would be
denied without the requested reasonable accommodation. That use would include use and enjoyment
of Aerie by their guests and service providers.
6. Please explain how the individual with a disability will be denied an equal opportunity to enjoy
the housing type of their choice absent the accommodation. Please provide documentation, if any,
to support your explanation.
Without the accommodation, there is no other way to move between the upper and lower levels. For
Aerie owners, Aerie and its amenities represent the “housing type of their choice.” As stated in the
previous answer, the use of the common areas of Aerie is central to that choice and, absent the
reasonable accommodation, those with disabilities would generally be denied the use and enjoyment
of the lower level common areas.
7. If the applicant is a developer or provider of housing for individuals with a disability, please explain
why the requested accommodation is necessary to make your facility economically viable in light of
the relevant market and market participants. Please provide documentation, if any, to support your
explanation.
This Request is not made to address economic viability.
8. If the applicant is a developer or provider of housing for individuals with a disability, please explain
why the requested accommodation is necessary for your facility to provide individuals with a
disability an equal opportunity to live in a residential setting taking into consideration the existing
supply of facilities of a similar nature and operation in the community. Please provide
documentation, if any, to support your explanation.
The applicant is developing housing which will be occupied or visited, in some cases, by persons with
disabilities as defined by the Fair Housing Laws. However, this is not a development restricted to or
intended solely for persons with disabilities, which appears to be the focus of this question.
9. Please add any other information that may be helpful to the applicant to enable the City to
determine whether the findings set forth in Chapter 20.98 can be made (Use additional pages if
necessary.)
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ATTACHMENT TO REQUEST FOR REASONABLE ACCOMMODATION
SUPPLEMENTAL INFORMATION FORM
The following information is relevant to the standards set by the Fair Housing Laws:
Is the Proposed Funicular Consistent with the City’s LCP and the Coastal Act “to the Extent
Feasible”? Neither the LCP nor the Coastal Act bans funiculars. Instead, a proposed funicular is
evaluated within the specific context of the proposal. Approving a funicular for Aerie would not set
a new precedent, but, rather, would echo prior decisions. For example, a funicular was approved for
a residence at 3225 Ocean Boulevard. That property, shown in the photo to the left prior to its
funicular approval, is located on a bluff, with a then-existing stairway
to its garage at the toe of the bluff. While the scale of the properties
may be different, the relationship between the blufftop residence
area and ancillary facilities at the toe joined by a pre-Coastal Act
stairway is quite comparable. In approving the Ocean Boulevard
funicular, the Coastal Commission recognized the need to provide
access to the garage, as well as the fact that the funicular would
“traverse the bluff face and provide a handicap access between the
residence and the garage.” Notably, this decision was made before
the adoption of the City’s LCP and, therefore, without a specific
Request for Reasonable Accommodation guided by the Fair Housing
Laws. Nonetheless, the Commission recognized the need for
accessibility between the different elevations of the property.
Similarly, a funicular at Aerie will generally allow full use of the Aerie property by persons with
disabilities. Section 21.16.020E of the City’s LCP and the Fair Housing Laws which guide its
implementation appear to compel the approval of a “reasonable accommodation” in this case.
Is there a Feasible Alternative that would Provide Greater Consistency with the City’s LCP? We
have evaluated several options for providing access between Aerie’s upper and lower levels. These
include above grade funiculars, ski lift-type cable gondola
systems, wheelchair lifts, and subterranean tunnels
leading to the existing concrete pad. Notably, this concrete
pad was the landing for a funicular operated on the
property prior to the Coastal Act to provide access to the
lower portion of the property. That funicular track was in
the general location of the current staircase as shown in
the 1974 photo to the right (see arrow). After reviewing
the capabilities, impacts, and aesthetics of each option, we
concluded that a funicular is the least noticeable, least
impactful, and most respectful of LCP policies.
We would be happy to provide any further information requested to support this request. Thank you.
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
Cox, Castle & Nicholson LLP
3121 Michelson Drive, Suite 200
Irvine, California 92612-5678
P: 949.260.4600 F: 949.260.4699
Tim Paone
949.260.4655
tpaone@coxcastle.com
www.coxcastle.com Los Angeles | Orange County | San Francisco
June 27, 2018
James Campbell
Deputy Community Development Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Dear Jim:
I’m following up on a late March meeting you and Pat Alford had
with Rick Julian and Brion Jeannette to discuss the possibility of the
City approving “reasonable accommodations” (specifically, a
funicular) to provide access to the lower portions of the Aerie
property for persons with physical limitations. Rick asked me to
summarize the factual and legal basis for providing this access for
persons who, whether due to illness, injury, or simply “aging in
place,” are not able to navigate the existing steep staircase (right).
As a side note, it appears that when
Proposition 20 was adopted, there
was a funicular operating on the property which, along with a
staircase, provided access to the lower portion of the property.
The funicular track was in the general location of the current
staircase as shown (see arrow) in the January 1974 photo to the
left. We do not know exactly when the funicular was removed.
Upon completion, Aerie will consist of an upper portion on the
bluff top (seven condominiums and related amenities) and a lower portion generally on the
beach level (docks for the residents, a beach which is privately owned above the mean high tide
line, and a concrete deck). As shown in the photo on the next page, the existing staircase
connects the two portions of the property, but consists of eighty steps at a steep angle. It is the
only means by which residents and visitors may access and use the property on both levels. The
staircase is not usable by persons who have temporary or permanent disabilities which limit
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June 27, 2018
Page 2
their ability to navigate the many steps. As a result, a “reasonable
accommodation” for persons with disabilities is appropriate and
necessary to:
•Allow them to enjoy the full use of the Aerie property, as
addressed by federal and state fair housing laws, case law
implementing and interpreting those statutes (collectively,
“Fair Housing Laws”), Section 20.52.070 of the City’s
Municipal Code, and Section 21.16.020E of the City’s
Municipal Code and Local Coastal Implementation Plan;
and
•Provide an emergency exit route to the building’s identified
“Area of Refuge” if evacuation to the lower portion of the
property is required; and
•Assure that, under recently adopted provisions of the Coastal Act, persons with
disabilities can use the Aerie property in the same manner as those without disabilities.
Following are the considerations which we believe compel approval of our request for
“reasonable accommodations”:
1. What is the City’s Standard for Granting a Reasonable Accommodation?
•The City’s Municipal Code / Section 20.52.070. Section 20.52.070(A) states that it is the
City’s intent to “provide reasonable accommodations in the City’s zoning and land use
regulations, policies, and practices when needed to provide an individual with any
disability an equal opportunity to use and enjoy a dwelling.” Section 20.52.070(D)(2)
provides for the City’s decision on a request for “reasonable accommodations,” among
other things, to be based on the provisions of Fair Housing Law. Section 20.52.070 also
includes the “reasonable accommodation” approval process for Coastal Zone properties.
•The City’s Municipal Code / LCP. Section 21.16.020E (next page), as certified by the
Coastal Commission as part of the City’s LCP, authorizes the City to grant reasonable
accommodations in the Coastal Zone without requiring strict compliance with the LCP
and the Coastal Act. Rather, consistency “to the extent feasible” is the standard,
provided there are “no feasible alternatives” which would provide both (i) the
reasonable accommodation and (ii) “greater consistency with the certified Local Coastal
Program” than what is proposed by the applicant.
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•How Does this Apply to Aerie? “Reasonable
accommodations” in the Aerie context are not
defined by disability laws dealing with access to
public accommodations (e.g., the ADA) or general
public access provisions of the Coastal Act. Rather,
the City’s Municipal Code and LCP expressly intend
that “reasonable accommodations” be provided to
assure that no individual is denied the equal
enjoyment and use of a residential property, using
Fair Housing Law provisions as the measuring stick. In
Aerie’s case, that means that if certain persons are
unable to enjoy the full use of the docks, deck, and
private portion of the beach due to physical or
mental impairments which preclude their use of the
steep staircase, then the City’s “zoning and land use
regulations, policies, and practices” should be relaxed
to allow “reasonable accommodations” which will
give them equal use and enjoyment.
2. What Does the Federal Fair Housing Act Require?
Drawing directly from a May 17, 2004, Joint Statement of the Department of Housing and
Urban Development and the Department of Justice, “reasonable accommodations” analysis
under the federal Fair Housing Act (the “Act”) can be broken down into the following:
•What is Prohibited? The Act makes it unlawful to refuse to make reasonable
accommodations when those accommodations may be necessary to afford persons with
disabilities an “equal opportunity to use and enjoy a dwelling.” The Act’s disability
discrimination protection covers not only home seekers with disabilities, but also buyers
and renters without disabilities who live or are associated with individuals with
disabilities. That would include, among others, children, parents, friends, spouses,
roommates, subtenants, or other associates who have disabilities. When applying this
standard to the City’s LCP, the proposed funicular must be viewed as providing a
reasonable accommodation not just for the use of specifically identified persons residing
at Aerie, but also to “reasonably accommodate” the needs of any disabled person and
those who live with or are associated with disabled persons at any time in the future.
E. Reasonable
Accommodations.
The review authority may grant
reasonable accommodations
(adjustments) 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. A
request for reasonable
accommodation requiring a
coastal development permit
may be approved or
conditionally approved by the
City if it is consistent with the
certified Local Coastal Program
and the California Coastal Act
to the extent feasible, and there
are no feasible alternatives for
providing an accommodation at
the dwelling that would provide
greater consistency with the
certified Local Coastal
Program.
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Page 4
•Who Qualifies as Disabled? The Act defines a person with a disability to include:
Individuals with a physical or mental impairment that substantially limits one or
more major life activities;
Individuals who are regarded as having such an impairment; and
Individuals with a record of such impairment.
•What Constitutes Physical or Mental Impairment? Under the Act – and, therefore,
under the City’s LCP - "physical or mental impairment" has very broad meaning. It
includes diseases and conditions such as orthopedic, visual, speech, and hearing
impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, HIV infection, mental retardation, emotional illness,
drug addiction (other than addiction caused by current, illegal use of a controlled
substance), and alcoholism. “Major life activity” refers to activities that are of central
importance to daily life, such as seeing, hearing, walking, breathing, performing manual
tasks, caring for one’s self, learning, and speaking.
•What is a “Reasonable Accommodation”? A “reasonable accommodation” is a change,
exception, or adjustment to a rule, policy, practice, or service that may be necessary for
a person with a disability to have an equal opportunity to use and enjoy a dwelling,
including public and common use spaces. Since rules, policies, practices, and services
may have a different effect on persons with disabilities than on other persons, treating
persons with disabilities exactly the same as others may deny that equal opportunity.
•How Does This Relate to Aerie? When the Act’s provisions are applied to the
“reasonable accommodation” provisions of the City’s LCP, the result is that all Aerie
residents and visitors must be able to enjoy equal use and enjoyment of the residences
and the “public and common spaces” (i.e., the docks, the deck, and the beach). If, for
example, an elderly parent visiting Aerie cannot physically navigate the stairway to join
a family gathering on the deck below, both the elderly parent and the family members
below would be denied reasonable use and enjoyment of the residence. Similarly, if
another family member kept the elderly parent company in the main building above
while the rest of the family enjoyed the activities on the lower level, that person, too,
would be denied equal use and enjoyment of the residence. To comply with the Act, a
reasonable accommodation must be made for anyone with a disability who wants to
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
James Campbell
June 27, 2018
Page 5
enjoy the use of the deck, docks, or beach, but cannot safely do so because navigating
the staircase would simply be difficult, dangerous, or impossible.
3. What Do State Fair Housing Laws Require? Under California law, the definitions of
disability, major life activities, and other applicable terms are generally more expansive than
under federal law. Similar to federal law, California’s definition of “discrimination”
(Government Code Section 12927) includes the “refusal to make reasonable
accommodations in rules, policies, practices, or services when these accommodations may
be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” If,
as required by its LCP, the City uses that standard to determine whether Aerie residents and
visitors with disabilities have such an “equal opportunity,” it simply would not be possible to
conclude that they do without the requested accommodation. As a result, a “refusal to
make reasonable accommodations” to “the City’s coastal zoning and land use regulations,
policies, and practices” to allow disabled persons access to the lower portion of Aerie would
not be consistent with the City’s LCP or State Fair Housing Laws.
4. Why is a Reasonable Accommodation Required for Emergency Situations? In addition to
the need for reasonable accommodations to extend routine use and enjoyment of Aerie to
all residents and visitors, emergency access to the lower level must be considered. Should
there be an emergency, such as a fire, which requires occupants to quickly exit the main
building to the water side of the property (i.e., as
opposed to the street side), then those exiting will
need to make their way to the lower portion of the
property. In fact, the concrete deck at the base of the
stairs (see arrow in photo at left) has been required
to operate as a building code “Area of Refuge.”
Therefore, there is a need for the disabled to be able
to reach the concrete deck without being required to
descend the steep staircase, which they simply may
not be able to do. As a result, a funicular or other means of transport powered by Aerie’s
emergency power generator is needed in the event of an emergency.
5. Is the Proposed Funicular Consistent with the City’s LCP and the Coastal Act “to the Extent
Feasible”? Neither the LCP nor the Coastal Act bans funiculars. Instead, a proposed
funicular is evaluated within the specific context of the proposal. Approving a funicular for
Aerie would not set a new precedent, but, rather, would echo prior decisions. For example,
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
James Campbell
June 27, 2018
Page 6
a funicular was approved for a residence at 3225 Ocean Boulevard. That property is located
on a bluff, with its garage at the toe of the bluff. In approving a funicular to operate
between the house and the garage, the Coastal Commission noted the general necessity of
providing access to the garage, as well as the fact that the funicular would “traverse the
bluff face and provide a handicap access between the residence and the garage.” Similarly,
a funicular at Aerie will generally provide access for the disabled to the lower portion of the
property so that they may both enjoy full use of the Aerie property and also provide an
emergency exit route. There is nothing in the City’s LCP or the Coastal Act which makes this
proposal inconsistent with either. To the contrary, Section 21.16.020E of the City’s LCP and
the Fair Housing Laws which guide its implementation appear to compel the approval of a
“reasonable accommodation” in this case.
6. Is there a Feasible Alternative that would Provide Greater Consistency with the City’s LCP?
We have evaluated several options for providing access between Aerie’s upper and lower
levels. These include above grade funiculars, subterranean tunnels leading to the existing
concrete pad at the beach (notably, this concrete pad was the landing for the funicular
shown on Page 1 of this letter), ski lift-type cable gondola systems, and wheelchair lifts.
After reviewing the capabilities, bluff impacts, and aesthetics of each option, we concluded
that a funicular is the least noticeable, most easily “camouflaged,” and most respectful of
LCP policies. We understand that our application will need to provide this analysis.
7. Environmental Justice. Suggesting that Aerie’s request involves “environmental justice”
might be easily dismissed as a “reach” due to the assumed affluence of Aerie’s future
residents. “Environmental justice” issues, after all, are appropriately and most frequently
focused on communities which are disadvantaged economically. Aerie, offers no pretense
that it is part of such an economically disadvantaged community. Nonetheless, California
law generally and the Coastal Act specifically very directly apply environmental justice
principles to all people without limitation to economic
disadvantage. PRC 30107.3 (right) provides that
environmental justice “means the fair treatment of people
of all races, cultures, and incomes.” PRC 30013 (next page)
provides that “no person in the State of California” may be
denied, on the basis of (among other things) disability, the
“full and equal access to the benefits of, or be unlawfully
subjected to discrimination, under any program or activity
30107.3.“Environmental
justice” means the fair
treatment of people of all races,
cultures, and incomes with
respect to the development,
adoption, implementation, and
enforcement of environmental
laws, regulations, and policies.
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
James Campbell
June 27, 2018
Page 7
that is conducted, operated, or administered
pursuant to” the Coastal Act. The City’s LCP is
such a program and the City’s approval of
CDPs is such an activity.
Therefore, it is apparent that Aerie residents
and visitors with disabilities fall within the
“disadvantaged community” of the disabled
who are entitled to enjoy the full benefits of
the Aerie CDP, whether rich, poor, or
anywhere in between.
Conclusion. This issue surfaced because Aerie
management has become aware of as many as five future residents who have physical
impairments that will preclude them from using the staircase to access the deck, docks, and
beach areas. Perhaps even more significant is the “everyday” context. It has become apparent
that, in the future, there almost certainly will be, on a regular basis, residents and visitors who
will not be able to navigate the stairway due to their physical limitations. On that basis, Aerie
will be requesting the issuance of a CDP to install a funicular consistent with the definitions of
“disabled” and “disability” within Fair Housing Laws, the expansive scope of PRC 30107.3, the
directive of PRC 30013 with respect to “disability,” and the incorporation of all of these
principles within the City’s LCP.
With these thoughts in mind, members of the Aerie team will be reaching out to you to find a
time to meet to receive your feedback and discuss the steps needed to begin the application
process.
Sincerely,
Tim Paone
30013.The Legislature further finds and declares that
in order to advance the principles of environmental
justice and equality, subdivision (a) of Section 11135
of the Government Code and subdivision (e) of
Section 65040.12 of the Government Code apply to
the commission and all public agencies implementing
the provisions of this division. As required by Section
11135 of the Government Code, no person in the
State of California, on the basis of race, national
origin, ethnic group identification, religion, age, sex,
sexual orientation, color, genetic information, or
disability, shall be unlawfully denied full and equal
access to the benefits of, or be unlawfully subjected to
discrimination, under any program or activity that is conducted, operated, or administered pursuant to this
division, is funded directly by the state for purposes of
this division, or receives any financial assistance from
the state pursuant to this division.
Hearing Officer - August 25, 2021 Item No. 1a Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
August 25, 2021, Hearing Officer Item 1 Comments
The following comment on an item on the Hearing Officer agenda are submitted by:
Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 1. Aerie Condominium Funicular Reasonable Accommodation
No. RA2020-002 and Approval In Concept No. AIC2020005 (PA2020-
067)
In Attachment HO 3 (Supplemental applicant information) the applicant makes a compelling
argument for why it would be nice to have a funicular connecting the condominium development
on the blufftop with the beach below. It is less clear precisely what relief from development
standards is being sought and that an argument has been made for granting it as a reasonable
accommodation.
Much is made of the how difficult it is for disabled persons to navigate the existing stairs. But
neither the applicant nor the staff report makes clear, at least on a quick reading, of whether the
stairs themselves are an allowable use. It appears they would not be allowed under the current
development standards. Although identified in the staff report as “101 Carnation Avenue,” the
subject property appears to be the one labeled “201/205” Carnation on Map B-5 - Carnation
Avenue of the Zoning Code and Local Coastal Program Implementation Plan.
Subsection 21.28.040.D.4 of the latter identifies “201-203” (the “203” appears to be a typo, as
no such lot appears on the map) as “Subject to Marine Erosion.” For such lots, in the
Development Area C highlighted in the staff report, Subsection 21.28.040.C.3.a.ii allows very
limited development including “On-grade public trails” and “On-grade public stairways,” as
opposed to the on-grade private trails and stairways that would be allowed on lots not subject to
marine erosion.
In this connection, it might be noted that while it would indeed be nice for the condo dwellers to
have an easy way to get to the beach below, the public also has a right to use that secluded
beach as well, at least below the mean high tide line. So, it would be equally nice for the public
to have an easy way to get from Carnation Avenue to it.
In other words, the applicant seems to be implying coastal blufftop dwellers have some kind of
private right of access to the water below that is being abridged for disabled tenants and guests
of the Aerie. But such a right does not appear to exist on bluffs subject to marine erosion.
There are numerous other examples of areas in Newport Beach (for example Shorecliffs and
Cameo Shores) where blufftop properties technically extend to the beach below and the blufftop
dwellers would undoubtedly find it nice to have easier access to “their” beach, but, because the
bluff is subject to marine erosion, only public trails are allowed.
Should this be correct, I strongly encourage the owners to consider adding an allowed on-grade
public trail or stairway to the beach, but if no current right available to the able-bodied is
being denied or interfered with, I have trouble seeing how a “reasonable
accommodation” comes into play.
Hearing Officer - August 25, 2021 Item No. 1b Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
August 25, 2021, Hearing Officer Item 1 comments - Jim Mosher Page 2 of 2
Beyond this, I notice that in Attachment HO 3 the applicant makes frequent reference to laws
requiring “an equal opportunity to use and enjoy a dwelling.” Yet the accommodation sought is
not for use of the dwelling, but rather for activities occurring outside the dwelling structure
proper. This bothers me because I recall an earlier Hearing Officer denying a reasonable
accommodation for a dwelling owner seeking to use a non-compliant space to store a golf cart
because the golf cart would assist in going to nearby stores. I seem to recall the Hearing Officer
based the denial, in part, on his observation that the applicant was seeking accommodation for
a use outside a dwelling, not use of a dwelling. See Resolution No. HO2018-002 (“Denying a
reasonable accommodation for the property located at 1411 North Bay Front”): “The requested
accommodation to park a golf cart in the rear yard setback so as to access neighborhood stores
and services is not necessary to provide applicant an equal opportunity to use and enjoy his
dwelling in that access to stores and services is not within the class of protections
intended by Fair Housing Laws, and applicant has other alternatives for accessing
neighborhood stores and services such as his family vehicle.” That may be inapposite here, but,
without reading those fair housing laws, the dialog at that hearing did suggest their scope may
not to be so sweeping as include activities outside an actual housing structure (the “dwelling”?).
It is also puzzling to see the strenuous claims from the applicant that reasonable
accommodations can be granted not just for actual tenants of a dwelling but for hypothetical
future disabled tenants, guests or even visitors.
Is this supported by case law? If so, it would seem that almost any conceivable deviation from
existing development standards could be requested and granted on any property as a
“reasonable accommodation” based on the interference that adherence to those standards
might impose on a possible future owner or visitor with the most severe disabilities imaginable.
That would seem a peculiar result.
Hearing Officer - August 25, 2021 Item No. 1b Additional Materials Received Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
From:Whelan, Melinda
To:Lee, Amanda
Subject:FW: Aerie Funicular
Date:Wednesday, August 25, 2021 7:45:40 AM
Email in support of RA
From: Richard Julian <rjulian@advancedrealestate.com>
Sent: Wednesday, August 25, 2021 7:29 AM
To: Whelan, Melinda <MWhelan@newportbeachca.gov>; Campbell, Jim
<JCampbell@newportbeachca.gov>
Cc: Jeannette Brion (brionj@bja-inc.com) <brionj@bja-inc.com>; Tim Paone at CCN
<tpaone@coxcastle.com>
Subject: FW: Aerie Funicular
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
All,
I received this email yesterday while I was out of town. I hope that you can forward it to all
appropriate persons.
I am looking forward to discussing this today.
Thank you,
Rick
Richard Julian | CEO
Advanced Real Estate Services, Inc
15320 Barranca Pkwy | Suite 100 | Irvine | CA | 92618
O: 949.595.5900 | F: 949.595.5901
rjulian@advancedonline.com| www.advancedonline.com
CA Broker Lic #00881503
From: Pacheco, Mike <mpacheco@vtcompanies.com>
Sent: Tuesday, August 24, 2021 11:07 AM
To: Richard Julian <rjulian@advancedrealestate.com>
Cc: Pacheco, Mike <mpacheco@vtcompanies.com>
Subject: Aerie Funicular
Rick,
As part of my management of the construction of the new home at 101
Bayside, I received the information related to the funicular you are proposing
to construct, and I wanted you to know we support the project. I think it’s
Hearing Officer - August 25, 2021 Item No. 1c Additional Materials Received After Deadline Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
great that you are willing to provide that accommodation to your unit owners
by meeting all the codes and regulations related to its construction. I know
that you’ll do a quality installation of the funicular, and you’ll also maintain and
operate it well. If there’s anything we can do to help support you, please don’t
hesitate to ask.
Thanks
Mike Pacheco
Hearing Officer - August 25, 2021 Item No. 1c Additional Materials Received After Deadline Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
From:Whelan, Melinda
To:"bslawstuff@yahoo.com"
Cc:Campbell, Jim; Lee, Amanda
Subject:FW: Further comment for Hearing Officer Conners
Date:Wednesday, August 25, 2021 2:05:59 PM
Bill,
Please find the email below from Mr. Mosher.
Melinda Whelan
From: Jim Mosher <jimmosher@yahoo.com>
Sent: Wednesday, August 25, 2021 1:51 PM
To: Whelan, Melinda <MWhelan@newportbeachca.gov>
Subject: Further comment for Hearing Officer Conners
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the
content is safe.
Melinda,
Please acknowledge receipt of this message and forward it to Hearing Officer
Conners:
If it was not clear from my oral comments at this morning's Zoom hearing, mycomment about "consistency" referred to the reference in Finding F on page 4 of 7 of
the proposed resolution (handwritten page 14 of the staff report) to Section
21.16.020(E) of Newport Beach's Local Coastal Program Implementation Plan, which
says in full:
"E. Reasonable Accommodations. The review authority may grant reasonableaccommodations (adjustments) 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. A request for reasonable accommodationrequiring a coastal development permit may be approved or conditionally
approved by the City if it is consistent with the certified Local Coastal Program
and the California Coastal Act to the extent feasible, and there are no feasible
alternatives for providing an accommodation at the dwelling that would
provide greater consistency with the certified Local Coastal Program."
My comment was in response to "Fact F.3" on the following page of the proposed
resolution, which says:
"There are no feasible alternatives for providing an accommodation at the
Hearing Officer - August 25, 2021 Item No. 1d Additional Materials Received After Deadline Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)
condominium project that would provide greater consistency with the LCP."
As I attempted to say, in my previous written commented I had noted that under the
LCP, public trails and stairways may be permitted on this particular private bluff face
(subject to marine erosion), but private trails and stairways cannot.
The further contention I was attempting to express this morning was that, despite thestatement to the contrary in the draft resolution, if a private funicular is a feasible
and reasonable accommodation, then a public funicular, if feasible, would
certainly be more consistent with the LCP, and would appear to be the required
solution if the findings are to be made.
Yours sincerely,
Jim Mosher
Hearing Officer - August 25, 2021 Item No. 1d Additional Materials Received After Deadline Aerie Condominium Funicular Reasonable Accommodation and AIC (PA2020-067)