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HomeMy WebLinkAboutHO2023-001 - APPROVING A REASONABLE ACCOMODATION TO ALLOW THREE (3) CHICKENS AT A SINGLE-UNIT RESIDENTIAL PROPERTY LOCATED AT 1691 ORCHARD DRIVE SUBJECT TO ADDITIONAL CONDITIONS OF APPROVAL (PA2022-098)HEARING OFFICER DETERMINATION NO. HO2023-001 A HEARING OFFICER DETERMINATION APPROVING A REASONABLE ACCOMODATION TO ALLOW THREE (3) CHICKENS AT A SINGLE-UNIT RESIDENTIAL PROPERTY LOCATED AT 1691 ORCHARD DRIVE SUBJECT TO ADDITIONAL CONDITIONS OF APPROVAL (PA2022-098) THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1.A request for a reasonable accommodation was filed by Mary Alice Campbell (“Applicant”),concerning property located at 1691 Orchard Drive, and legally described as Lot 4 of TractNo. 4146 (“Property”). 2.The Applicant requests a reasonable accommodation to provide relief from Newport Beach Municipal Code (“NBMC”) Section 7.12.010 (Keeping of Livestock) to allow ten (10)chickens on a single-unit residential property within a single-unit residential neighborhoodfor an individual with a disability. 3.The Property is designated Single Unit Residential Detached (RS-D) by the General Plan Land Use Element and is located within the Residential Single Family (RSF) area of theSanta Ana Heights Specific Plan (SP-7) Zoning District and is situated within a single-unitresidential neighborhood. 4.The Property is not located within the coastal zone. 5.A hearing before the Hearing Officer was held on July 13, 2023, in the Corona del MarConference Room (Bay E-1st Floor) located at 100 Civic Center Drive, Newport Beach,California. Evidence, both written and oral, was presented to, and considered by, the Hearing Officer at this hearing. 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 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 exceptions to this categorical exemption under Section 15300.2 are not applicable. The project location does not impact an environmental resource of hazardous or critical concern, does not result in cumulative impacts, does not have a significant effect on theenvironment due to unusual circumstances, does not damage scenic resources withina state scenic highway, is not a hazardous waste site, and is not identified as a historicalresource. Hearing Officer Determination No. HO2023-001 Page 2 of 14 01-17-23 3.The Applicant proposes ten (10) chickens on a property that is developed with a single- unit dwelling and the construction of an enclosed chicken coop to house the chickens. SECTION 3. REQUIRED FINDINGS. 1.By Section 20.52.070(D)(2) (Reasonable Accommodations – Findings and Decision) of the Newport Beach Municipal Code, the following findings and facts in support of such findings are set forth: Finding: A.That the requested accommodation is requested by or on behalf of one or more individuals with a disability protected under the Fair Housing Laws. Facts in Support of Finding: 1.A letter from dated April 21, 2021, was submitted by the Applicant indicating that 2. A letter from dated May 25, 2021, was submitted by the Applicant indicating that 3. Letters from dated April 21, 2022, June 29, 2022, and September 23, 2022, were submitted by the Applicant 4. Two letters from dated July 19, 2022, and September 6, 2022, were submitted by the Applicant 5.A letter from dated August 24, 2022, was submitted by the Applicant 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. Hearing Officer Determination No. HO2023-001 Page 3 of 14 01-17-23 Facts in Support of Finding: 1.In the letter from indicates that the chickens can providethe Applicant with furtherexplains that the chickens will allow the Applicant the comfort to maintain routine also indicates in a letter that the chickens will provide 2.The Applicant indicated that the chickens provide She stated that the complete removal of the chickens from the Property would be detrimental to the Applicant, and should the Applicant relocate to a property that would allowthe keeping of chickens, the Applicant would face 3.However, the letters from and the Applicant’s representations do notsupport why ten (10) chickens are necessary for Moreover,it is unclear if were aware of the existing nuisance conditions over thepast two (2) years associated with the ten (10) chickens as detailed below. 4.The City did not perform its own medical evaluation regarding the Applicant’s disability orthe support provided by the chickens. The City’s testimony and evidence centered on thenuisance created by the existing number of chickens (smell, noise, vermin, and potentialpredation). 5.Neighboring property owners have provided written correspondences and photographs thathave shown the condition of the Applicant’s property and the effects on their own propertyfrom residing in proximity to the Applicant which include an increase in noise, odor, andvermin. Photographs provided depict the conditions of the yard and the presence of verminon neighboring yards. 6.The evidence of these nuisance conditions are further supported by the photos which aremade part of the administrative record. 7.Animal Control Officer, Nicholas Ott, has served with the Newport Beach Police Department (NBPD) over the past 14 years. His training and experience include in-depth courses on theapplication of Penal Code Section No. 597.1 to a variety of animal-related investigations,animal hoarding, animal fighting, malicious animal cruelty, and criminal liability dog biteinvestigations. Additionally, Officer Ott has three (3) years of experience with OrangeCounty Animal Care (OCAC) handling overnight emergency animal incidents countywide. In his time as Animal Control Officer, he has served as the NBPD’s case agent forenvironmental protection, animal welfare, and dangerous animal cases that require follow-up investigation and liaison with prosecutors. Hearing Officer Determination No. HO2023-001 Page 4 of 14 01-17-23 8.Officer Ott has responded to complaints from the neighbors at the Property with twenty (20) or more phone complaints and several site visits for follow-ups and welfare checks. A log of his dispatch calls for service at the Property which are incorporated herein by reference. 9.He recommends keeping a maximum of three (3) chickens on the property, instead of therequested ten (10) chickens to assist the Applicant. Officer Ott indicates that chickens cannot be classified as service animals under the Americans with Disabilities Act (ADA) because they are neither dogs nor miniature horses. 10. Officer Ott provided testimony that he had consulted with Jamie Link, the AdministrativeManager of Field Services at the Orange County Animal Care, who is a court-recognized expert witness in livestock care, including chickens and domestic rabbits. Ms. Link’s expert opinion is often sought in cases involving the neglect or mistreatment of livestock. Ms. Linkadvised Officer Ott that keeping of two (2) chickens would not be inhumane if they are a“well-bonded pair.” She indicated that a well-bonded pair of two (2) chickens would providefor sufficient companionship for each other. However, Ms. Link also recommends that a maximum of three (3) chickens, rather than two (2), would further alleviate concerns for the chickens but indicated that there was no need, from a humane standpoint, to keep morethan three (3) chickens. While Ms. Link did not provide testimony at the hearing (and wouldordinarily be considered hearsay) the hearing was informal in nature and the Hearing Officergave the information due weight. 11. Under the Federal Housing Administration (FHA) of the U.S. Department of Housing andUrban Development, an assistance animal is an animal that works, provides assistance, orperforms tasks for the benefit of a person with a disability, or that provides an emotionalsupport that alleviates one or more identified effects of a person’s disability. An assistance animal is not a pet. 12. With consideration of the factors provided by NBMC Section 20.52.070(D)(3), the requestedreasonable accommodation is intended to provide the individual with a disability an equalopportunity to use and enjoy a dwelling. According to the Applicant’s care provider, the chickens According to the Applicant’s medical professionals, the chickens would also provide that would improve ormaintain the Applicant’s quality of life while also balancing the quality of life for thesurrounding community and mitigating nuisance conditions. 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 HousingLaws and interpretive case law. Fact in Support of Finding: 1.Title 2 of the California Code of Regulations Section 12179(d) enumerates the factors to consider when evaluating whether a reasonable accommodation would impose an undue financial or administrative burden. The factors include: Hearing Officer Determination No. HO2023-001 Page 5 of 14 01-17-23 a.The cost of the requested accommodation or the cost of a requested modification if the person considering the request is paying for the modification pursuant to section 12181(h); b.The financial resources of the person or persons who have a duty under the Act to provide the accommodation or the financial resources of that person or persons if they are the persons obligated to pay for the modification pursuant to section 12181(h); c.The benefits that a proposed alternative accommodation or modification would provide to the individual with a disability; d.The availability of alternative accommodations or modifications that would effectively meet the disability-related needs of the individual with a disability; e.Where the entity being asked to make the accommodation or the entity being asked to pay for the modification under section 12181(h) is part of a larger entity, the structure and overall resources of the larger organization, as well as the financial and administrative relationship of the entity to the larger organization. In general, a larger entity with greater resources would be expected to make accommodations and modifications requiring greater effort or expense than would be required of a smaller entity with fewer resources; and f.Whether the need for the accommodation or modification arises from the owner's failure to develop, maintain or repair the property as required by law or contract, or to otherwise comply with related legal obligations such as circumstances covered by California building codes or state or federal accessibility design and construction standards, in which case the defenses of fundamental alteration and undue financial and administrative burden do not apply. 2.With the exception of factors (c) and (d) above, most of the factors referenced above are not applicable since the City and/or a landlord are not being asked to provide the reasonable accommodation. However, with respect to factors (c) and (d) above, the reasonable accommodation allowing three (3) chickens would not impose an undue financial or administrative burden that ten (10) chickens impose. 3.The keeping of ten chickens on a residential property that is not zoned for the keeping of livestock is considered an undue financial or administrative burden as defined in the California Code of Regulations 2 CCR 12179. 4.With the ten (10) chickens currently at the Property, the NBPD’s Animal Control Unit has responded to twenty (20) complaints and responded to approximately ten (10) resident complaints associated with the existing conditions at the subject property in addition to several follow-ups and welfare checks to the property within the past two (2) years alone. The complaints received pertained to the noise and smell from the Property. Hearing Officer Determination No. HO2023-001 Page 6 of 14 01-17-23 5.Allowing the maximum of three (3) chickens on the Property should result in a reduction in the amount of City resources allocated to the Property as a result of having to respond to complaints of nuisance conditions. The ten (10) chickens currently present at the Propertyhave generated a considerable number of complaints and nuisance conditions as set forthin the administrative record for the hearing. Keeping ten chickens on the Property insteadof three (3) would require more care and clean-up and ensuring that the chickens kept in a safe and clean environment would require continuous welfare checks from the Animal Control Unit. 6.Allowing the maximum of three (3) chickens on the Property will not impose an unduefinancial or administrative burden on the City. The Applicant shall be required to provide a chicken coop for the chickens that meets the City’s setback requirements. If the chicken coop exceeds 150 square feet, then the Applicant must obtain a building permit for thechicken coop that is approved by the City’s Building and Life Safety Services (Fire) Division.The process to obtain a building permit is consistent with typical building permit reviewprocesses without constituting additional administrative burden. Finding: D.That the requested accommodation will not result in a fundamental alteration in the natureof the City's zoning program, as “fundamental alteration" is defined in Fair Housing Laws and interpretive case law. Facts in Support of Finding: 1. Comprehensive zoning regulations lie within the police power of local governments wherein uses are established consistent with general plan land-use designations and are often separated by an intermediate district as a buffer. Regulations specify the intensity or densityof use, with an emphasis on what is not allowed. Village of Euclid v Ambler Realty Co.(1926) 272 US 365, 47 S Ct 114. 2.Whether a requested accommodation would fundamentally alter the nature of a zoning program will be analyzed on a case-by-case basis. In Kulin v. Deschutes County, thePlaintiff constructed a structure on his property to run his home business, which was inviolation of the county’s Home Occupation Code. 872 F. Supp. 2d 1093, 1095 (2012). TheHome Occupation Code prohibited the use of more than thirty-five percent of one’s dwelling for home occupation and the employment of more than two employees. Id. at 1097. Plaintiff, who was legally blind and suffered from osteoarthritis, sought an accommodation to thelimitations pursuant to the ADA. Id. at 1096. The Hearing Officer stated that the homebusiness was inconsistent with home occupation and conflicts with the goal of preservingthe land for agricultural purposes. Id. at 1105. The Court considered several factors in determining whether Plaintiff’s accommodationwould be unduly burdensome and whether it would create a fundamental alteration to theHome Occupation Program: a.If costs are clearly disproportionate to the benefits it will produce: Hearing Officer Determination No. HO2023-001 Page 7 of 14 01-17-23 i.The County would incur no costs, and ii.Plaintiff already made many serious improvements and investments of $120,000. b.“Intangible but very real human costs” associated with Plaintiff’s disability: i.Plaintiff would be able to operate a business on his property and be self-reliant, and ii.Working from home allowed Plaintiff to take frequent breaks and feel safe and comfortable. c.Impact on surrounding land use: i.There would be inconsequential impact of the warehouse on surrounding agricultural land use – the impact of the warehouse remains the same regardless if the structure was for business or personal use, and ii.Continued use of the warehouse does not fundamentally alter the nature of the code. iii.Dangers of setting a precedent for others to circumvent the code in the future. Id. at 1105. 3.In applying the factors set forth in Kulin to the present circumstances, the reasonable accommodation as requested would result in a fundamental alteration in the nature of the City's zoning program. For instance, in conducting the cost/benefit analysis, the cost to theCity to maintain ten (10) chickens fair outweighs the benefit to the Applicant. The Propertyis a residentially zoned property and is surrounding by other residentially zoned property.Livestock are prohibited altogether in this zone so as to maintain the residential characterof the surrounding area. As evidenced in the Staff Report and public correspondences, the City allocates a significant amount of time and resources addressing nuisance issuesassociated with the ten (10) chickens at the Property. Whereas in Kulin, the property ownerinvested $120,000 in improvements, that is not the case here. 4.With respect to the second factor, the City’s recommendation to allow three (3) chickens accommodates the Applicant need to maintain the chickens while also balancing the needsof the neighboring property owners have expressed concerns regarding the increase inodor, noise, and vermin. Written statements describe the increase in vermin, such as rats,entering the neighboring properties and photographs provided show the conditions of theApplicant’s yard which are attached hereto and incorporated herein by reference. The odor, noise, and vermin have made it increasingly difficult for the neighboring properties to enjoytheir yard. Moreover, whereas in Kulin, the reasonable accommodation was necessary forthe applicant for work purposes and to support himself financially, that is not the case here.If the City’s recommendation of three (3) chickens is approved, the intangible but very real human costs cited in Kulin are accommodated while also respecting the needs of the surrounding community. 5.With respect to the third factor, the ten (10) chickens currently existing at the Property hasresulted in a significant impact to the surrounding neighbors. As stated above and based upon the additional evidence in the record, the neighboring property owners have expressed concerns regarding the increase in odor, noise, and vermin. Written statements Hearing Officer Determination No. HO2023-001 Page 8 of 14 01-17-23 describe the increase in vermin, such as rats, entering the neighboring properties and photographs provided show the conditions of the Applicant’s yard which are attached hereto and incorporated herein by reference. The odor, noise, and vermin have made it increasingly difficult for the neighboring properties to enjoy their yard. 6.Requiring a municipality to waive a zoning rule would ordinarily cause a “fundamental alteration of its zoning scheme if the proposed use was incompatible with surrounding land uses.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220 (2008). The proposedaccommodation to allow for a maximum of three (3) chickens to be kept on the Propertydoes not result in any fundamental alteration to the character and use of the home orneighborhood. The Property will continue to be used as a single-unit dwelling which is consisted with the development of the neighborhood. The keeping of chickens is a private use that is ancillary to the existing single-family development and is not a commercialoperation that could fundamentally alter the nature of the City’s zoning program in this areaof the City. The Applicant requested to keep ten (10) chickens at the property, however,keeping more than three (3) chickens could result in a significant alteration, as explained above, to the character of the use or neighborhood, as it would no longer constitute an ancillary use. Therefore, the keeping of up to three (3) chickens is recommended. 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.Pursuant to Section 7.20.050 (Maintaining Sanitary Conditions) of the NBMC, the chickencoop will be conditioned to be kept clean and sanitary and any animal waste, uneaten feed,or other matter that emits an offensive odor or encourages the breeding of flies or otherinsects shall be collected daily and not allowed to accumulate. Conditions No. 7 and 8 havebeen included to ensure compliance with these requirements. 2.Title 2 of the California Code of Regulations Section 12179 provides that if a support animal,as defined in subsection 12005(d)(1), is requested as a reasonable accommodation, therequest may be denied if it would constitute a direct threat to the health or safety of others or would cause substantial physical damage to the property of others under subsection 12185(d)(9). 3.Although the Applicant requests the keeping of ten (10) chickens, it is Officer Ott’srecommendation to allow no more than three (3) chickens on the Property. The Property is 72-feet by 100-feet or 7,200 square feet, and the chickens will primarily occupy the rear yard. The rear yard is approximately 2,700-square-feet in size, which Officer Ott indicatesis not large enough for ten (10) chickens. Furthermore, ten (10) chickens will producesignificantly more noise, odor, and potential for vermin as opposed to three (3) chickens. Hearing Officer Determination No. HO2023-001 Page 9 of 14 01-17-23 4.The increase in chickens also has the potential to attract coyotes to the neighborhood which creates a safety risk for the neighborhood. The neighborhood is adjacent to two golf courses (Newport Beach Golf Course and Santa Ana Country Club) and an ecological reserve. InOfficer Ott’s experience, open spaces such as these tend to attract coyotes and theneighborhood is susceptible to coyote activity. Keeping chickens on the Property mayattract coyotes to the neighborhood as the coyotes may view the chickens as a food source. The project includes a condition requiring the chickens be kept in a secured chicken coop when they are not performing yardwork to prevent coyotes or other predators fromfrequenting the neighborhood. 5.Neighboring property owners have submitted written correspondence and photographs that show the condition of the Applicant’s property and the effects on their own property from residing near the Applicant. Complaints from surrounding neighbors relate to noise, odors,and the increasing presence of vermin such as rats. Based on photographs and siteinvestigations conducted by staff, there are old cages and crates as well as other debris inthe rear yard. Other photographs show several chickens in cages that do not meet the City’s requirements for animal keeping and lack all weather enclosures for protection from the sun and rain. Conditions have been included to ensure that if the Applicant is permitted to keepchickens on the Property, the chickens will be maintained in animal enclosures that shallcomply with the provisions set forth in Chapter 7.20 (Animal Nuisances) of the NBMC.Based on photographic evidence collected from 2021-2023, the existing chickens are not currently kept or maintained in an acceptable condition and if ten (10) chickens are permitted to remain onsite, additional nuisances may arise that create health of safetyconcerns for nearby residents and the Applicant. 6.Based upon the threats to the surrounding neighbors described above and supported by the evidence provided, the reasonable accommodation as requested should be modified to only allow three (3) chickens. 7.Jamie Link, the Administrative Manager of Field Services for Orange County Animal Care,is a court-recognized expert witness in livestock care, including chickens and domestic rabbits. Ms. Link’s expert opinion is often sought in cases involving the neglect or mistreatment of livestock. Ms. Link advised that the keeping of as few as two (2) chickenswould not be inhumane if they are a “well-bonded pair.” She indicated that a well-bondedpair of two (2) would provide for sufficient companionship. However, Ms. Link also statedthat a maximum of three (3) chickens, rather than two (2), would further alleviate concernsfor the chickens and indicated that there was no need, from a humane standpoint, to keep more than three (3) chickens. 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 bythe California Coastal Commission dated February 11, 1977, and any subsequent amendments, under the Local Coastal Program. Hearing Officer Determination No. HO2023-001 Page 10 of 14 01-17-23 Facts in Support of Finding: 1.This Property is not located within the coastal zone. I.In addition, by Section 20.52.070(D)(3-4) (Reasonable Accommodations – Factors for Consideration) , the Hearing Officer may consider, but is not limited to, the following factors in determining whether the requested accommodation is the minimum necessary to provideone or more individuals with a disability an equal opportunity to use and enjoy a dwellingand whether the requested accommodation would require a fundamental alteration in thenature of a City program: Finding: G.Whether the requested accommodation will affirmatively enhance the quality of life of one or more individuals with a disability. Facts in Support of Finding: Facts in Support of Finding A(1)-(6) are incorporated herein by reference. However, in balancing the quality of life of the Applicant, Facts in Support of Finding B(1) – (12), D(1) – (7), and (E)(1) – (7) are incorporated herein by reference. Finding: H.Whether the individual(s) with a disability will be denied an equal opportunity to enjoy the housing type of their choice absent the accommodation. Facts in Support of Finding: Facts in Support of Finding B(1) – (12) are incorporated herein by reference. Finding: I.Whether the requested accommodation would fundamentally alter the character of the neighborhood. Facts in Support of Finding: Facts in Support of Finding D(1) – (6) are incorporated herein by reference. Finding: J.Whether the accommodation would result in a substantial increase in traffic or insufficient parking. Facts in Support of Finding: Hearing Officer Determination No. HO2023-001 Page 11 of 14 01-17-23 The request for reasonable accommodation as modified will not result in a substantial increase in traffic or insufficient parking. Finding: K.Whether granting the requested accommodation would substantially undermine any express purpose of either the City’s General Plan or an applicable specific plan. Facts in Support of Finding: The Property is designated Single Unit Residential Detached (RS-D) by the General Plan Land Use Element and is situated within a single-unit residential neighborhood. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: 1.The Hearing Officer of the City of Newport Beach hereby finds this project is categorically exempt from the California Environmental Quality Act under Section 15303 under Class 3(New Construction or Conversion of Small Structures) of the CEQA Guidelines, CaliforniaCode of Regulations, Title 14, Division 6, Chapter 3 because it has no potential to have asignificant effect on the environment. 2.The Hearing Officer of the City of Newport Beach hereby approves the Campbell AnimalKeeping Reasonable Accommodation as modified, subject to the conditions outlined inExhibit “A,” which is attached hereto and incorporated by reference. 3.This action shall become final and effective 14 days following the Hearing Officer’s final decision unless within such time an appeal is filed with the City Clerk by the provisionsof Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 13TH DAY OF JULY, 2023. _________________________________ Steven Pacifico Graham, Hearing Officer The final and effective date for calculation of appeal deadlines shall be the date this order is actually published by the City. PUBLISHED: AUGUST 11, 2023 Hearing Officer Determination No. HO2023-001 Page 12 of 14 01-17-23 EXHIBIT “A” CONDITIONS OF APPROVAL Planning Division 1.The development shall be in substantial conformance with the approved site plan. 2.The project is subject to all applicable City ordinances, policies, and standards unlessspecifically waived or modified by the conditions of approval. 3.The Applicant shall comply with all federal, state, and local laws. A material violation of any of those laws in connection with the use may be caused the revocation of this reasonable accommodation. 4.The maximum number of chickens on-site at any one time shall be three (3). 5.No male chickens or roosters shall be permitted on the property. 6.All chickens shall be housed and remain in the on-site chicken coup structure when not performing yard work or exercising. At minimum, the chickens shall be housed in thecoup from 9:00 p.m. to 6:00 a.m., daily. 7.Animal enclosures shall be maintained free from litter, garbage, and the accumulation of animal waste to discourage flies and other disease vectors and shall comply with the provisions of Chapter 7.20 (Animal Nuisances). Animal waste shall not be allowed toaccumulate within setback areas. The site shall be continually maintained in a neat and sanitary manner. 8.The Applicant shall collect/dispose any animal waste, uneaten feed, or other matter that emits an offensive odor or encourages the breeding of flies or other insects daily. TheApplicant may store animal waste, uneaten feed, or other matter in a closed container prior to disposal. 9.If the person(s) initially occupying the residence vacates or conveys the Property for which the reasonable accommodation was granted, the chickens and chicken coop shallbe removed from the Property within 30-days. 10.The storage of materials or feed for the chickens shall be prohibited in the front yard setback of 20 feet. 11.The chicken coop(s) shall be required to meet the required side yard and rear yard setbacks of 25 feet. 12.This reasonable accommodation may be modified or revoked by Hearing Officer shouldthey determine that the proposed uses or conditions under which it is being operated ormaintained are detrimental to the public health, welfare, or materially injurious to Hearing Officer Determination No. HO2023-001 Page 13 of 14 01-17-23 Property or improvements in the vicinity or if the Property is operated or maintained to constitute a public nuisance. 13.Any change in operational characteristics, expansion in the area, or other modificationto the approved reasonable accommodation, shall require an amendment to thisreasonable accommodation or the processing of a new reasonable accommodation application. 14.A copy of the Hearing Officer Determination, including conditions of approval Exhibit “A”shall be incorporated into the Building Division and field sets of plans before issuanceof the building permits. 15.All noise generated by the proposed use shall comply with the provisions of Chapter10.26 and other applicable noise control requirements of the Newport Beach MunicipalCode. The maximum noise shall be limited to no more than depicted below for thespecified periods unless the ambient noise level is higher: Between the hours of 7:00 AM and 10:00 PM Between the hours of 10:00 PM and 7:00 AM Location Interior Exterior Interior Exterior Residential Property 45dBA 55dBA 40dBA 50dBA Residential Property located within 100 feet of a commercial Property 45dBA 60dBA 45dBA 50dBA Mixed Use Property 45dBA 60dBA 45dBA 50dBA Commercial Property N/A 65dBA N/A 60dBA 16.Construction activities shall comply with Section 10.28.040 of the Newport BeachMunicipal Code, which restricts hours of noise-generating construction activities that produce noise to between the hours of 7:00 a.m. and 6:30 p.m., Monday through Friday,and 8:00 a.m. and 6:00 p.m. on Saturday. Noise-generating construction activities arenot allowed on Sundays, or Holidays. 17.This approval shall expire and become void unless exercised within 24 months from the actual date of review authority approval, except where an extension of time is approved in compliance with the provisions of Title 20 Planning and Zoning of the Newport BeachMunicipal Code. 18.To the fullest extent permitted by law, the Applicant shall indemnify, defend and hold harmless the City, its City Council, its boards and commissions, officials, officers, employees, and agents from and against any claims, demands, obligations, damages,actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs, andexpenses (including without limitation, attorney’s fees, disbursements, and court costs) ofevery kind and nature whatsoever which may arise from or in any manner relate (directly or indirectly) to City’s approval of Campbell Animal Keeping including, but not limitedto Reasonable Accommodation (PA2022-098). This indemnification shall include, butnot be limited to, damages awarded against the City, if any, costs of suit, attorney’s fees,and other expenses incurred in connection with such claim, action, causes of action, suit, Hearing Officer Determination No. HO2023-001 Page 14 of 14 01-17-23 or proceeding whether incurred by the Applicant, City, and/or the parties initiating or bringing the such proceeding. The Applicant shall indemnify the City for all the City's costs, attorneys' fees, and damages that which City incurs in enforcing the indemnification provisions outlined in this condition. The Applicant shall pay to the City upon demand any amount owed to the City under the indemnification requirements prescribed in this condition.