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HomeMy WebLinkAbout1.0_Campbell Animal Keeping Appeal_PA2022-098_REDACTEDCITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT January 4, 2024 Agenda Item No. 1 SUBJECT: Campbell Animal Keeping Appeal (PA2022-098) ▪Reasonable Accommodation SITE LOCATION: 1691 Orchard Drive APPELLANT: Mary Alice Campbell APPLICANT/OWNER: Mary Alice Campbell PLANNER: Jenny Tran, Assistant Planner 949-644-3212 or jtran@newportbeachca.gov LAND USE AND ZONING •General Plan Land Use Plan Category: RS-D (Single Unit Residential Detached) •Zoning District: SP-7 (Santa Ana Heights Specific Plan) - Residential Single Family (RSF) PROJECT SUMMARY An appeal of the Hearing Officer’s July 13, 2023, decision to approve a reasonable accommodation to provide relief from Newport Beach Municipal Code (“NBMC”) Section 7.12.010 (Keeping of Livestock) to allow three (3) chickens on a single-unit residential property within a single-unit residential neighborhood for an individual with a disability. The appellant is requesting to allow ten (10) chickens on a single-unit residential property where the keeping of chickens is prohibited. 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, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment; and 3)Adopt Resolution No. PC2024-001 denying the appeal and upholding the action of the Hearing Officer and approving Reasonable Accommodation PA2022-098 (Attachment No. PC 1). 1 INTENTIONALLY BLANK PAGE2 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 2 VICINITY MAP GENERAL PLAN ZONING LOCATION GENERAL PLAN ZONING CURRENT USE ON-SITE Single Unit Residential Detached (RS-D) Santa Ana Heights Specific Plan, Residential Single Family (SP-7) Single-Unit Dwelling NORTH RS-D Santa Ana Heights Specific Plan, Residential Single Family (SP-7) Single-Unit Dwellings SOUTH RS-D Santa Ana Heights Specific Plan, Residential Single Family and Commercial Nursery Overlay (SP-7) Single-Unit Dwellings EAST RS-D Santa Ana Heights Specific Plan, Residential Single Family (SP-7) Single-Unit Dwellings WEST RS-D Santa Ana Heights Specific Plan, Residential Kennel (SP-7) Single-Unit Dwellings and Commercial Dog Kennels Subject Property 3 INTENTIONALLY BLANK PAGE4 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 3 INTRODUCTION Project Setting The subject property is located within the Santa Ana Heights community, west of Irvine Avenue and approximately 1,500-feet from John Wayne Airport, across State Highway 73. The West Santa Ana Heights community was annexed by the City of Newport Beach in 2008 and many of the existing zoning regulations, including the Santa Ana Heights Specific Plan (SP-7) were incorporated into the City’s municipal code. The subject property is developed with a two (2)-story single-unit dwelling on Orchard Drive in a residential neighborhood. The surrounding properties along the same side of Orchard Drive as the subject property are within the same Residential Single Family (RSF) District of the Santa Ana Heights Specific Plan. The properties on the other side of Orchard Drive are within the RSF District and are within the Commercial Nursey Overlay District that allows for wholesale commercial nurseries. The nearby residential neighborhood along Riverside Drive is located within the Residential Kennel District (RK) of the Santa Ana Heights Specific Plan where dog kennels are permitted. As described, the subject property and neighboring properties are established single-unit residential uses with some residual agricultural uses in other adjacent areas that were authorized prior to Santa Ana Heights annexation into Newport Beach. 5 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 4 Project Description The Applicant is requesting a reasonable accommodation to provide relief from Section 7.12.010 (Keeping of Livestock) of the NBMC to allow ten (10) chickens at the subject single-unit property. Section 7.12.010 of the NBMC prohibits keeping livestock, such as poultry, within the City except where specifically permitted. The Applicant requests chickens to be kept on a property in a zoning district where keeping of livestock of prohibited. The Applicant proposes to construct an enclosed chicken coop on the property to house the chickens. The proposed coop is approximately 32 square feet and would be located approximately 25 feet from the rear and side property lines and 20 feet from the front property line along Orchard Drive. No other changes to the property are requested by the Applicant. As documented below and based upon testimony the Planning Commission will receive at the reasonable accommodation hearing, the existence of the ten (10) chickens at the subject property has resulted in nuisance conditions. In the last two (2) years alone, the Animal Control Officer Nicholas Ott of the Newport Beach Police Department (NBPD) has responded to twenty (20) complaints and responded to approximately ten (10) resident complaints associated with the existing conditions at the subject property. In order to provide the reasonable accommodation while also balancing the needs of the community, the City recommends a reasonable accommodation of no more than three (3) chickens on the subject property subject to the conditions of approval in the draft resolution. The conditions include that the chickens be kept in a securely enclosed coop in the rear yard, except when exercising or supporting yard maintenance efforts. Hearing Officer Decision A hearing was held on July 13, 2023, in the Corona del Mar Conference Room (Bay E – 1st Floor) at 100 Civic Center Drive, Newport Beach. During the hearing, a presentation was provided to discuss the history of the property including enforcement efforts from the Newport Beach Police Department’s Animal Control Unit and complaints from neighboring properties. Photographs and videos were provided during the hearing that depicted the conditions of the property. Because additional discretionary approvals were not required and given the nature of the request, the hearing was not open to the public. However, photographs, videos and correspondence from neighbors was provided to the Hearing Officer in support of the City’s recommendation. The Hearing Officer decision was published on August 11, 2023. While the Applicant requested ten (10) chickens, the Hearing Officer approved the keeping of three (3) chickens on the property (Hearing Officer Determination No. HO2023-001) based upon the evidence presented. The published document redacted confidential medical information (Attachment No. PC 3). 6 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 5 Appeal of the Hearing Officer Decision On August 25, 2023, the Applicant, Mary Alice Campbell filed a timely appeal of the Hearing Officer’s decision stating that the ruling failed to accurately understand the nature of the service that the chickens provide, and that incomplete information caused an inaccurate assessment of the risk of nuisance to neighbors (Attachment No. PC 2). The appeal was prepared with the assistance of Ms. Campbell’s caregiver. Ms. Campbell is specifically appealing the Hearing Officer Decision to only allow three (3) chickens approved by the Hearing Officer instead of ten (10) chickens requested by the Applicant. Pursuant to Section 20.64.030(C)(3) (Conduct of Hearing) of the NBMC, a public hearing on an appeal is conducted “de novo,” meaning that it is a new hearing. The prior decision of the Hearing Officer to approve the Reasonable Accommodation (PA2022-098) to allow no more than three (3) chickens has no force or effect. The Planning Commission is not bound by the Hearing Officer’s prior decision. DISCUSSION General Plan and Zoning Code The subject property is designated RS-D (Single Unit Residential Detached) by the General Plan Land Use Element and is located within the SP-7 (Santa Ana Heights Specific Plan - Residential Single Family [RSF]) Zoning District. The RSF district is intended to provide for the development and maintenance of medium density single- family detached residential neighborhoods. Only those uses that are typically complementary to and can exist in harmony with a residential neighborhood are permitted. As described in the Project Setting, the Santa Ana Heights area is primarily residential in nature, but includes some quasi-commercial uses (i.e., dog kennels and commercial nurseries) as well. Santa Ana Heights - Background After the annexation of Santa Ana Heights to the City of Newport Beach in 2008, Section 20.90.080(D)(7) (Residential Single-Family District: SP-7 [RSF]) of the NBMC was adopted and indicates that any nonconforming use of any property within the district for the maintenance of pets and animals other than those enumerated in this section shall be terminated within one year of the enactment of this section. This section of the NBMC became effective on November 25, 2010, and the abatement period for nonconforming uses terminated on November 25, 2011. Therefore, any livestock at the subject property was prohibited as of November 26, 2011. 7 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 6 Animal Keeping Pursuant to Section 7.12.010 (Keeping of Livestock) of the NBMC, no person shall keep any cow, pig, goat, horse, mule, poultry, or any other animal commonly considered livestock within the City except where specifically permitted. Further, Table 4-1 of Section 20.48.040 (Animal-Keeping) of the NBMC allows poultry on property within the R-A (Residential-Agricultural) Zoning District if the parcel size is at least 15,000 square-feet and only a maximum of two (2) adult animals (chickens) are on the property. As a reference, the subject property is approximately 7,200 square feet. Additionally, the nearby Residential Equestrian District (REQ) in SP-7 allows up to six (6) chickens per building site. The REQ District is intended for the development and maintenance of a single-family residential neighborhood in conjunction with limited equestrian uses. The lots in this area of the City are generally large, as the minimum building site area for the REQ District is 19,800 square feet. For reference, the minimum building site area for the RSF District is 7,200 square feet. Table 1, below, provides a summary of the maximum number of chickens permitted in various zoning districts in the City. Table 1 – Maximum Number of Chickens Permitted ZONE MINIMUM LOT SIZE MAXIMUM NUMBER PERMITTED Residential Single-Family District: SP-7 (RSF) (Subject Property) 7,200 square feet 0 Residential-Agricultural (R-A) 15,000 square-feet 2 Residential Equestrian District: SP-7 (REQ) 19,800 square-feet 6 Code Enforcement History Neighboring property owners have provided written correspondence and photographs explaining the effects on their property as a result of the keeping of chickens on the subject property. Reported nuisances include an increase in noise, odor, and vermin. In the last two (2) years alone, the Animal Control Officer Nicholas Ott of the NBPD has responded to twenty (20) code enforcement complaints and had approximately ten (10) additional interactions with neighboring residents associated with the conditions at the subject property. The Property has a history of code enforcement violations. In 2016, Code Enforcement addressed nuisance conditions at the Property. The approximately ten (10) chickens currently present at the Property have generated a considerable number of complaints and nuisance conditions as set forth in Attachment No. PC 8. 8 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 7 Reasonable Accommodation The keeping of chickens on the property requires a deviation from the development standards of the SP-7 Zoning District as the keeping of livestock (i.e., chickens) is not allowed in this sub-area of the SP-7 Zoning District. The Applicant is requesting a reasonable accommodation because an individual residing in the home has a disability. In compliance with Federal and State fair housing laws, reasonable accommodations in the City’s zoning and land use regulations, policies, and practices are permitted when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling. The Zoning Code includes a procedure that allows 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 hearing in compliance with NBMC Chapter 20.62 (Public Hearings). The Applicant states that the keeping of chickens is necessary for on the property as well as to Several physician letters have been prepared by ; as well as the individual’s caretaker, to support the claim and need for the chickens to provide The individual’s physicians and caretaker are supportive of the Applicant’s request for ten chickens to be kept on the property. The letters further detail however, the documentation is protected under the Health Insurance Portability and Accountability Act (HIPAA) and is not public record. The City sought its own expert to evaluate the proposed reasonable accommodation, however, the City was unable to obtain consent for an evaluation. Under the Americans with Disabilities Act (ADA), service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. In addition to the provisions about service dogs, the Department’s ADA regulations have a separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. The work or task a dog or miniature horse has been trained to provide must be directly related to the person’s disability. Dogs, or other emotional support animals, whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA. This definition does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act. An assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability. An assistance animal is not a pet. Individuals with a disability may request to keep an assistance animal as a reasonable 9 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 8 accommodation to a housing provider’s pet restrictions. The Fair Housing Act requires a housing provider to allow a reasonable accommodation involving an assistance animal in situations that meet the following findings and conditions as indicated in the “Required Findings and Factors of Consideration” section below. Required Findings and Factors of Consideration The Planning Commission is designated to approve, conditionally approve, or deny applications for a reasonable accommodation if the Hearing Officer’s decision is appealed or called for review. Section 20.52.070(D)(2) of the NBMC 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. 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 Planning Commission 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; 10 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 9 d. Whether the accommodation would result in a substantial increase in traffic or insufficient parking; and e. Whether granting the requested accommodation would substantially undermine any express purpose of either the City’s General Plan or an applicable specific plan. Upon review of the application, staff believes that all the findings, which are incorporated into the resolution attached hereto, can be made. According to the application, the allowance to keep chickens on the property is necessary for the individual with a disability to use and enjoy the dwelling by However, the current keeping of ten (10) chickens has resulted in numerous complaints of nuisance conditions from neighbors which are supported by additional evidence. City staff including Animal Control Officer, Nicholas Ott, is recommending that no more than three (3) chickens be kept on the property instead of the requested ten (10) chickens. The proposed accommodation to keep a limited number of chickens (3) would not result in any fundamental alterations to the characteristics of the dwelling or the neighborhood. The recommended number of chickens is found to be suitable for the size of the property in order to provide the individual with a disability an opportunity to while also ensuring the neighboring properties are not burdened by the accommodation. It is the belief of staff that allowing more chickens, such as the requested ten (10) chickens, will negatively affect the safety of the neighborhood and create a disruption for the neighboring residents. The property is within proximity of the commercial dog kennels on Riverside Drive that allow dozens of dogs on each site and other quasi commercial uses in the area. Additionally, the chicken coop for the chickens will be required to meet the setback requirements for animal keeping in the REQ District of SP-7. The accommodation, as proposed, is conditioned to ensure the chickens are kept in a clean and safe environment that will discourage vermin and coyotes from visiting the property as well as ensure the safety and well-being of the chickens. Jamie Link, the Administrative Manager of Field Services at the 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 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 provide for 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 more than three (3) chickens. 11 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 10 Neighboring property owners have provided written correspondence and photographs that have shown the condition of the Applicant’s property and the effects on their own property from residing in proximity to the Applicant. These effects include an increase in noise, odor, and vermin. Correspondence and photographs have been provided to the Planning Commission (Attachment Nos. PC 8 and PC 9). Conditions have been included in Attachment No. PC 1 to ensure that, if the Applicant shall keep chickens on the subject property, the chickens shall be maintained in animal enclosures that shall comply with the provisions set forth in Chapter 7.20 (Animal Nuisances) of the NBMC. Keeping and maintaining ten chickens as requested would alter the character of the neighborhood and impose an undue financial or administrative burden on the City due to the involvement of code enforcement and the police department. The ten (10) chickens currently present at the Property have generated a considerable number of complaints and nuisance conditions as set forth in Attachment No. PC 8 which are attached hereto and incorporated herein by reference. Keeping ten (10) chickens on the Property instead of 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. ALTERNATIVES 1. The Planning Commission may approve a different number of chickens that provides a similar benefit to the applicant. 2. The Planning Commission may deny the Reasonable Accommodation request (Attachment No. PC 1). ENVIRONMENTAL REVIEW 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. 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 the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. The project involves the keeping of chickens on a property that is developed with a single- unit dwelling and the construction of an enclosed chicken coop to house the chickens. 12 Campbell Animal Keeping (PA2022-098) Planning Commission, January 4, 2024 Page 11 PUBLIC NOTICE Notice of this application 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 hearing, 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: ____________________________ Jenny Tran, Assistant Planner LAW/jt Attachments: PC 1 PC 2 PC 3 PC 4 PC 5 PC 6 PC 7 PC 8 PC 9 Draft Resolution Appeal Form Hearing Officer Determination No. HO2023-001 Hearing Officer Minutes from July 13, 2023 [Redacted] Physician Letters [Redacted] Caretaker Correspondences [Redacted] Animal Control Unit Memos Public Correspondences Photographs PC 10 Site Plan 13 INTENTIONALLY BLANK PAGE14 Attachment No. PC 1 Draft Resolution 15 INTENTIONALLY BLANK PAGE16 RESOLUTION NO. PC2024-001 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH, CALIFORNIA, UPHOLDING THE HEARING OFFICER’S DETERMINATION APPROVING A REASONABLE ACCOMODATION TO ALLOW THREE (3) CHICKENS AT A SINGLE-UNIT RESIDENTIAL PROPERTY LOCATED AT 1691 ORCHARD DRIVE (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 Tract No. 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 neighborhood for 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 the Santa Ana Heights Specific Plan (SP-7) Zoning District and is situated within a single-unit residential 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 Mar Conference 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. 6. The Hearing Officer adopted Hearing Officer Decision No. HO2023-0001 approving the Reasonable Accommodation for the keeping of three (3) chickens at a single-unit residential property. The Hearing Officer decision was published on August 11, 2023, and approved the keeping of three (3) chickens on the property (Hearing Officer Determination No. HO2023-001). 7. On August 25, 2023, the Applicant filed an appeal of the Hearing Officer’s decision. The appeal indicated that the ruling failed to understand accurately the nature of the service that the chickens provide, and incomplete information caused an inaccurate assessment of the risk of nuisance to neighbors. 8. A public hearing was held by the Planning Commission on January 4, 2024, in the City Council Chambers at 100 Civic Center Drive, Newport Beach, California. A notice of time, 17 Planning Commission Resolution No. PC2024-001 Page 2 of 15 01-17-23 place and purpose of the public hearing was given in accordance with California Government Code Section 54950 et seq. ("Ralph M. Brown Act”) and Chapter 20.62 (Public Hearings) of the NBMC. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this public hearing. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. 1. This request for reasonable accommodation 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 the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. 3. The Applicant proposes ten (10) chickens on the 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. I. 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 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 18 Planning Commission Resolution No. PC2024-001 Page 3 of 15 01-17-23 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. Facts in Support of Finding: 1. In the letter from indicates that the chickens can provide the Applicant with further explains that the chickens will allow the Applicant 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 allow the keeping of chickens, the Applicant would face 3. However, the letters from and the Applicant’s representations do not support why ten (10) chickens, as opposed to three (3) chickens, are necessary for Moreover, it is unclear if were aware of the existing nuisance conditions over the past two (2) years associated with the ten (10) chickens as detailed below. 4. The City sought its own expert to evaluate the proposed reasonable accommodation, however, was unable to obtain authorization for a direct evaluation. 5. Neighboring property owners have provided written correspondences and photographs that have shown the condition of the Applicant’s property and the effects on their own property from residing in proximity to the Applicant which include an increase in noise, odor, and 19 Planning Commission Resolution No. PC2024-001 Page 4 of 15 01-17-23 vermin. Photographs provided depict the conditions of the yard and the presence of vermin on neighboring yards. 6. The evidence of these nuisance conditions are further supported by the photos which are attached hereto as Attachment No. PC 9 and incorporated herein by reference. 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 the application 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 bite investigations. Additionally, Officer Ott has three (3) years of experience with Orange County 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 for environmental protection, animal welfare, and dangerous animal cases that require follow- up investigation and liaison with prosecutors. 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 the requested 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. Jamie Link, the Administrative Manager of Field Services at the 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 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 provide for 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 more than three (3) chickens. 11. Under the Federal Housing Administration (“FHA”) of the U.S. Department of Housing and Urban Development, an assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides an emotional support 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 requested reasonable accommodation is intended to provide the individual with a disability an equal opportunity to use and enjoy a dwelling. According to the Applicant’s the chickens According to the Applicant’s medical professionals, the chickens would also provide that would improve or 20 Planning Commission Resolution No. PC2024-001 Page 5 of 15 01-17-23 maintain the Applicant’s quality of life while also balancing the quality of life for the surrounding 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 Housing Laws 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: 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 21 Planning Commission Resolution No. PC2024-001 Page 6 of 15 01-17-23 accommodation allowing three (3) chickens would not impose an undue financial or administrative burden that ten (10) chickens imposes. 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 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. 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 address nuisance conditions. The ten (10) chickens currently present at the Property have generated a considerable number of complaints and nuisance conditions as set forth in Attachment No. PC 8 which are attached hereto and incorporated herein by reference. Keeping ten (10) chickens on the Property instead of 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 likely not impose an undue financial 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 the chicken 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 review processes without constituting additional administrative burden. 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. 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 density of 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, the 22 Planning Commission Resolution No. PC2024-001 Page 7 of 15 01-17-23 Plaintiff constructed a structure on his property to run his home business, which was in violation of the county’s Home Occupation Code. 872 F. Supp. 2d 1093, 1095 (2012). The Home 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 the limitations pursuant to the ADA. Id. at 1096. The Hearing Officer stated that the home business was inconsistent with home occupation and conflicts with the goal of preserving the land for agricultural purposes. Id. at 1105. The Court considered several factors in determining whether Plaintiff’s accommodation would be unduly burdensome and whether it would create a fundamental alteration to the Home Occupation Program: a. If costs are clearly disproportionate to the benefits it will produce: 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 the City to maintain ten (10) chickens fair outweighs the benefit to the Applicant. The Property is 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 character of the surrounding area. As evidenced in the Staff Report and public correspondences, the City allocates a significant amount of time and resources addressing nuisance issues associated with the ten (10) chickens at the Property. Whereas in Kulin, the property owner invested $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 while also balancing the needs of the neighboring property owners that have experienced nuisance conditions including increases in odor, noise, and 23 Planning Commission Resolution No. PC2024-001 Page 8 of 15 01-17-23 vermin. Written statements 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. 5. The Property has a history of code enforcement violations. In 2016, Code Enforcement addressed nuisance conditions at the Property. 6. Whereas in Kulin, the reasonable accommodation was necessary for the 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. 7. With respect to the third factor, the ten (10) chickens currently existing at the Property has resulted 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 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. 8. 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 proposed accommodation to allow for a maximum of three (3) chickens to be kept on the Property does not result in any fundamental alteration to the character and use of the home or neighborhood. 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 commercial operation that could fundamentally alter the nature of the City’s zoning program in this area of 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 chicken coop will be conditioned to be kept clean and sanitary and any animal waste, uneaten feed, 24 Planning Commission Resolution No. PC2024-001 Page 9 of 15 01-17-23 or other matter that emits an offensive odor or encourages the breeding of flies or other insects shall be collected daily and not allowed to accumulate. Conditions No. 7 and 8 have been 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, the request 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’s recommendation 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 indicates is not large enough for ten (10) chickens. Furthermore, ten (10) chickens will produce significantly more noise, odor, and potential for vermin as opposed to three (3) chickens. 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. In Officer Ott’s experience, open spaces such as these tend to attract coyotes and the neighborhood is susceptible to coyote activity. Keeping chickens on the Property may attract 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 from frequenting 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 site investigations conducted by staff, there are old cages and crates as well as other debris in the 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 keep chickens on the Property, the chickens will be maintained in animal enclosures that shall comply 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 safety concerns 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. 25 Planning Commission Resolution No. PC2024-001 Page 10 of 15 01-17-23 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) chickens would not be inhumane if they are a “well-bonded pair.” She indicated that a well-bonded pair of two (2) would provide for sufficient companionship. However, Ms. Link also stated that a maximum of three (3) chickens, rather than two (2), would further alleviate concerns for 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 by the California Coastal Commission dated February 11, 1977, and any subsequent amendments, under the Local Coastal Program. Facts in Support of Finding: 1. This Property is not located within the coastal zone. II. 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 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: 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: 26 Planning Commission Resolution No. PC2024-001 Page 11 of 15 01-17-23 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: 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 Planning Commission 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, 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 Planning Commission of the City of Newport Beach hereby denies the appeal and upholds the action of the Hearing Officer approving the Campbell Animal Keeping Reasonable Accommodation (PA2022-098) as modified, subject to the conditions outlined in Exhibit “A,” which is attached hereto and incorporated by reference. 27 Planning Commission Resolution No. PC2024-001 Page 12 of 15 01-17-23 3. This action shall become final and effective 14 days following the date this Resolution was adopted unless within such time an appeal is filed with City Clerk by the provisions of Title 20 Planning and Zoning, of the Newport Beach Municipal Code. PASSED, APPROVED, AND ADOPTED THIS 4TH DAY OF JANUARY, 2024. AYES: NOES: ABSTAIN: ABSENT: BY:_________________________ Curtis Ellmore, Chair BY:_________________________ Tristan Harris, Secretary 28 Planning Commission Resolution No. PC2024-001 Page 13 of 15 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 unless specifically 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 coop structure when not performing yard work or exercising. At minimum, the chickens shall be housed in the coop 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 to accumulate 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. The Applicant 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 shall be 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 should they determine that the proposed uses or conditions under which it is being operated or maintained are detrimental to the public health, welfare, or materially injurious to 29 Planning Commission Resolution No. PC2024-001 Page 14 of 15 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 modification to the approved reasonable accommodation, shall require an amendment to this reasonable 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 issuance of the building permits. 15. All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified 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 Beach Municipal 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 are not 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 Beach Municipal 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, 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 Campbell Animal Keeping including, but not limited to Reasonable Accommodation (PA2022-098). This indemnification shall include, but not 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, 30 Planning Commission Resolution No. PC2024-001 Page 15 of 15 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. 31 INTENTIONALLY BLANK PAGE32 Attachment No. PC 2 Appeal Form 33 INTENTIONALLY BLANK PAGE34 35 36 37 38 39 40 Attachment No. PC 3 Hearing Officer Determination No. HO2023-001 41 INTENTIONALLY BLANK PAGE42 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 Tract No. 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 neighborhood for 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 the Santa Ana Heights Specific Plan (SP-7) Zoning District and is situated within a single-unit residential 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 Mar Conference 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 the environment due to unusual circumstances, does not damage scenic resources within a state scenic highway, is not a hazardous waste site, and is not identified as a historical resource. 43 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. 44 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 provide the Applicant with further explains 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 allow the keeping of chickens, the Applicant would face 3.However, the letters from and the Applicant’s representations do not support why ten (10) chickens are necessary for Moreover, it is unclear if were aware of the existing nuisance conditions over the past 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 or the support provided by the chickens. The City’s testimony and evidence centered on the nuisance created by the existing number of chickens (smell, noise, vermin, and potential predation). 5.Neighboring property owners have provided written correspondences and photographs that have shown the condition of the Applicant’s property and the effects on their own property from residing in proximity to the Applicant which include an increase in noise, odor, and vermin. Photographs provided depict the conditions of the yard and the presence of vermin on neighboring yards. 6.The evidence of these nuisance conditions are further supported by the photos which are made 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 the application 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 bite investigations. Additionally, Officer Ott has three (3) years of experience with Orange County 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 for environmental protection, animal welfare, and dangerous animal cases that require follow- up investigation and liaison with prosecutors. 45 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 the requested 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 Administrative Manager 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. Link advised 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 provide for 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 more than three (3) chickens. While Ms. Link did not provide testimony at the hearing (and would ordinarily be considered hearsay) the hearing was informal in nature and the Hearing Officer gave the information due weight. 11. Under the Federal Housing Administration (FHA) of the U.S. Department of Housing and Urban Development, an assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides an emotional support 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 requested reasonable accommodation is intended to provide the individual with a disability an equal opportunity 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 or maintain the Applicant’s quality of life while also balancing the quality of life for the surrounding 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: 46 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. 47 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 Property have generated a considerable number of complaints and nuisance conditions as set forth in the administrative record for the hearing. Keeping ten chickens on the Property instead of 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 undue financial 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 the chicken 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 review processes 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 density of 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, the Plaintiff constructed a structure on his property to run his home business, which was in violation of the county’s Home Occupation Code. 872 F. Supp. 2d 1093, 1095 (2012). The Home 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 the limitations pursuant to the ADA. Id. at 1096. The Hearing Officer stated that the home business was inconsistent with home occupation and conflicts with the goal of preserving the land for agricultural purposes. Id. at 1105. The Court considered several factors in determining whether Plaintiff’s accommodation would be unduly burdensome and whether it would create a fundamental alteration to the Home Occupation Program: a.If costs are clearly disproportionate to the benefits it will produce: 48 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 the City to maintain ten (10) chickens fair outweighs the benefit to the Applicant. The Property is 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 character of the surrounding area. As evidenced in the Staff Report and public correspondences, the City allocates a significant amount of time and resources addressing nuisance issues associated with the ten (10) chickens at the Property. Whereas in Kulin, the property owner invested $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 needs of the neighboring property owners have expressed concerns regarding the increase in odor, noise, and vermin. Written statements 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. Moreover, whereas in Kulin, the reasonable accommodation was necessary for the 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 has resulted 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 49 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 proposed accommodation to allow for a maximum of three (3) chickens to be kept on the Property does not result in any fundamental alteration to the character and use of the home or neighborhood. 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 commercial operation that could fundamentally alter the nature of the City’s zoning program in this area of 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 chicken coop 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 other insects shall be collected daily and not allowed to accumulate. Conditions No. 7 and 8 have been 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, the request 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’s recommendation 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 indicates is not large enough for ten (10) chickens. Furthermore, ten (10) chickens will produce significantly more noise, odor, and potential for vermin as opposed to three (3) chickens. 50 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. In Officer Ott’s experience, open spaces such as these tend to attract coyotes and the neighborhood is susceptible to coyote activity. Keeping chickens on the Property may attract 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 from frequenting 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 site investigations conducted by staff, there are old cages and crates as well as other debris in the 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 keep chickens on the Property, the chickens will be maintained in animal enclosures that shall comply 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 safety concerns 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) chickens would not be inhumane if they are a “well-bonded pair.” She indicated that a well-bonded pair of two (2) would provide for sufficient companionship. However, Ms. Link also stated that a maximum of three (3) chickens, rather than two (2), would further alleviate concerns for 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. 51 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 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: 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: 52 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, 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 the Campbell Animal Keeping Reasonable Accommodation as modified, subject to the conditions outlined in Exhibit “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 provisions of 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 53 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 unless specifically 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 should they determine that the proposed uses or conditions under which it is being operated or maintained are detrimental to the public health, welfare, or materially injurious to 54 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 modification to the approved reasonable accommodation, shall require an amendment to this reasonable 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 issuance of the building permits. 15.All noise generated by the proposed use shall comply with the provisions of Chapter 10.26 and other applicable noise control requirements of the Newport Beach Municipal Code. The maximum noise shall be limited to no more than depicted below for the specified 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 Beach Municipal 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 are not 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 Beach Municipal 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, 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 Campbell Animal Keeping including, but not limited to Reasonable Accommodation (PA2022-098). This indemnification shall include, but not 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, 55 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. 56 Attachment No. PC 4 Hearing Officer Minutes from July 13, 2023 [REDACTED] 57 INTENTIONALLY BLANK PAGE58 Attachment No. PC 5 Physician Letters [REDACTED] 59 INTENTIONALLY BLANK PAGE60 Attachment No. PC 6 Caretaker Correspondences [REDACTED] 61 INTENTIONALLY BLANK PAGE62 Attachment No. PC 7 Animal Control Unit Memos 63 INTENTIONALLY BLANK PAGE64 65 66 67 68 69 70 71 72 73 74 CallTime IDKey Nature Street CloseCode 06/12/2023 11:20:20 2306120122 ACO TELEPHONE CALL 1691 ORCHARD DR ASST 04/11/2023 09:16:43 2304110055 ASSIST OUTSIDE AGENCY 1691 ORCHARD DR ASST 03/24/2023 10:16:02 2303240055 MISC ANIMAL CONTROL CALL 1691 ORCHARD DR ASST 03/23/2023 12:16:21 2303230076 WELFARE CHECK 1691 ORCHARD DR C4 11/09/2022 17:03:33 2211090162 WELFARE CHECK 1691 ORCHARD DR C4 08/24/2022 09:37:40 2208240079 ASSIST OUTSIDE AGENCY 1691 ORCHARD DR ASST 07/07/2022 14:36:50 2207070162 OUT FOR FOLLOWUP 1691 ORCHARD DR FU 06/30/2022 13:08:49 2206300126 ACO TELEPHONE CALL 1691 ORCHARD DR ADV 06/15/2022 10:01:54 2206150067 ACO TELEPHONE CALL 1691 ORCHARD DR ADV 05/17/2022 15:31:40 2205170173 ACO TELEPHONE CALL 1691 ORCHARD DR ADV 04/17/2022 10:42:16 2204170087 OUT FOR FOLLOWUP 1691 ORCHARD DR FU 04/11/2022 16:39:14 2204110195 FIRE MISC NO PD RESPONSE 1691 ORCHARD DR REFF 75 INTENTIONALLY BLANK PAGE76 Attachment No. PC 8 Public Correspondences 77 INTENTIONALLY BLANK PAGE78 79 80 From: jeremymwilkens@gmail.com Sent: May 30, 2023 7:00 PM To: Tran, Jenny Cc: 'Michelle Wilkens' Subject: FW: Statement form Attachments: 20211025_164751.jpg; 20211031_094418.jpg; 20211113_170028(1)001.jpg; Statement form.pdf [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Jenny, I was able to find my last statement to Animal Control over a year ago so I have started with this as nothing has changed. I can update the date if you like but I believe the lack of any effort by the city and city attorney is an important thing to make note of. I also have included a link to a folder we shared with animal control so you can appreciate the sound and noise we have to live with in video format. Also note the pictures of the chicken in our back yard. This fact alone violates the request to declare them as support animals as they are not in her control. Further as they may be diseased she is subjecting my family and pets to her potential hazards. I also need to make clear that the city is ignoring public health requirements for the keeping of livestock. There have been many bird flu outbreaks in the past year which caused many California farms to kill off their livestock as a precaution. The city has not required her to live with these same regulations which is a breach of mandatory public health and safety responsibilities. https://www.dropbox.com/scl/fo/bam098pie1xfdt2ypcrgm/h?dl=0&rlkey=cd1isl8930v21xnan07rq67uf Jeremy Wilkens From: jeremymwilkens@gmail.com <jeremymwilkens@gmail.com> Sent: Tuesday, May 30, 2023 6:39 PM To: 'Michelle Wilkens' <michelle@idgroup-inc.com> Subject: FW: Statement form From: jeremymwilkens@gmail.com <jeremymwilkens@gmail.com> Sent: Tuesday, April 12, 2022 3:01 PM To: 'Ott, Nick' <nott@nbpd.org> Subject: RE: Statement form Officer Ott, 81 Here is m statement with some attached pictures. I will send you a drop box link to videos in another email to help with the noise complaints, unfortunately I have no good way to show the stench. Jeremy Wilkens From: Ott, Nick <nott@nbpd.org> Sent: Tuesday, April 12, 2022 2:07 PM To: jeremymwilkens@gmail.com Subject: Statement form See attached. IMPORTANT WARNING and CONFIDENTIALITY NOTICE: This e-mail (and any attachment) is only intended for the use of the person or entity to which it is addressed, and may contain information that is privileged and confidential. All recipients, including employees of the City of Newport Beach, are obligated to maintain this communication in a safe, secure and confidential manner. Unauthorized disclosure or failure to maintain confidentiality is strictly prohibited and may be a violation of state and/or federal law(s) and carry criminal and/or civil penalties. Additionally, the unauthorized disclosure or failure to maintain confidentiality this e-mail (and any attachments) by employees of the City of Newport Beach may be a violation of City of Newport Beach and/or Newport Beach Police Department policies. If you are not the intended recipient, please immediately notify the sender by return e-mail and delete this message from your computer without making a copy or distribution. 82 From: Jeremy Wilkens <jeremy@idgroup-inc.com> Date: June 19, 2023 at 8:47:49 PM PDT To: "Weigand, Erik" <eweigand@newportbeachca.gov> Cc: Michelle Wilkens <michelle@idgroup-inc.com> Subject: Problem in district 3 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Erik We live in what I believe to be your district in Newport beach. We have an ongoing problem with the city, planning, and most importantly animal control. We have been trying to resolve a problem for years with an illegal chicken farm next door to our home. It poses a clear health hazard to me, my family and the neighborhood however the city refuses to protect its citizens. I would like to give you one chance to get involved and help resolve this issue before we file suit against the city. The rodent problem has now reached new levels and I am done waiting for this broken bureaucracy to take action. We have been working with planning for over a year, and animal control for almost 2 years for the noise, smell, and other related rodent problems with no success. Tonight a rat tried to chew through our screen door to get into our house. This is a public health issue since I am a cancer patient and I refuse to live like this any longer. Call me on my cell phone any time or we will be contacting legal council. 714 914 3880 Jeremy Wilkens 15262 Connector lane Huntington Beach, CA 92649 83 From: michelle@idgroup-inc.com Sent: June 20, 2023 7:54 AM To: Tran, Jenny Subject: Support Chickens on Orchard Attachments: 20230619_200840001.jpg; 20230619_200828.jpg; 20230619_200817.jpg [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Hi, We have spoke before and I need you to call me today at 949-412-0430. This email is a formal request to meet in person with you, your director, animal control and the city attorney. A plan needs to be put into place immediately to protect the health and safety of my family and all the adjacent neighbors. Since the city has let the chicken situation at 1691 Orchard flourish and go unchecked we are now suffering from the effects of that decision and the city needs to help those who have been forced to live around it. We can no longer open our windows on her side of the house. The smell is awful and the smell can not be healthy. The dead and dying rat situation has become terrible. On a daily basis we have to pick up dead and dying rats as they have found a perfect environment in her unclean and trash filled backyard. This effects all the neighbors adjacent to her property. My two dogs can no longer go into the yard unless someone walks it to make sure the rat bodies are cleaned up. My husband is a cancer patient and is immunocompromised and should not have to deal with the potential health risks in his own backyard and home. Her backyard is a public health emergency. The filth, the smell and the rodent population needs to be handled. I need some accommodations to be made to protect the health and safety of my family. We have been promised a resolution for two years and I have been more than patient with the process. I am asking for steps to be immediately put into place that will protect public safety and health. I know she has declared them emotional support animals. They do not meet any of the ADA requirements for support animals. Last night a rat tried to chew through my screen door and get into our home. Pictures are attached. So now we can’t sit in our backyard in the early evening as the rat situation is out of control. The response from the group that is supposed to help and protects us is disappointing as she is breaking so many city laws. Michelle 84 From: Ed McLaughlin <edmcl977@gmail.com> Sent: May 31, 2023 1:10 PM To: Tran, Jenny Subject: I can’t tell you how much I don’t like the chickens my hot tub is hard to get in because of the smell why are you allowed them in the city. It’s gross and. Chickens are not support animals [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Sent from my iPhone 85 From: jeremy@idgroup-inc.com Sent: August 17, 2023 4:56 PM To: Weigand, Erik; Tran, Jenny Cc: michelle@idgroup-inc.com Subject: RE: Problem in district 3 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Erik Please let me start with thanking you for being the one person at the City of Newport Beach that follows through and does their job. We do really appreciate that, and I wanted to put that out there so what comes next does not come across as a personal attack on you. We are very disappointed at the city for what is at very least complete incompetence. On August 13th (THE DAY BEFORE YOU SENT YOUR EMAIL) all of the fees went up at the city, including the cost for appeal, so now the $1,000 cost to appeal is $2,116.00 It seems that the city attorney’s office decided to break all of the cities rules and regulations regarding hearings. There is supposed to be a public notice of hearing which wasn’t given to anyone in the neighborhood, thus denying the residents their rights to give testimony. This fact itself most likely nullifies the hearing from a legal perspective. While we understand that there was personal health information that was to be given by Mary Alice and for that part the hearing should have been closed, there no potential for testimony from the neighbors in violation to the cities own rules. There could have easily been a private hearing for the neighbors to give evidence and complaints, and then a private hearing for her health issues. We also have no evidence that my health issues were disclosed during the hearing and that my cancer treatments have left me immuno-compromised living next to a toxic breading ground of disease and potential bird flu. We also no evidence that she will be required to get veterinary assessments of the farm animals for public health or safety. They have granted farm animal zoning in a residential zoned neighborhood. Today we got an email from Jenny Tran at planning with the approved and signed resolution. My wife called and asked when all of this to go into effect, and more importantly what happens when she does not comply. So the city has given her approval and conditions with no means of enforcement. Here are a list of requirements that she will not be in compliance with on day 1 (whenever that is). 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 the coup 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 to accumulate within setback areas. The site shall be continually maintained in a neat and sanitary manner. 86 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. The Applicant 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 shall be 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 should they determine that the proposed uses or conditions under which it is being operated or maintained are detrimental to the public health, welfare, or materially injurious to What happens when she doesn’t comply? Who do we call? What happens? Does she get another “special treatment” hearing which gives her extraordinary rights at the expense of the neighbors? I think at this point someone at the planning or code enforcement office needs to explain to the neighborhood how this is going to be handled when she breaks the agreement. One last point. My wife asked Jenny if we could build a higher fence to keep the noise and smell down. Her answer was that there were height restrictions on fences and we would not be allowed to exceed them. Our reaction to Ms. Tran, is the city of Newport Beach does not get to decide which laws they enforce and to whom, to treat people differently is discrimination and opens the city up to a very ugly potential law suit. So perhaps you should discuss this with your city attorneys office. If you are going to make accommodations to one neighbor, accommodations MUST be made to all neighbors. Again, this isn’t against you personally, but you need to be aware of the situation in the district you were elected to represent. Jeremy From: Weigand, Erik <eweigand@newportbeachca.gov> Sent: Monday, August 14, 2023 12:47 PM To: Jeremy Wilkens <jeremy@idgroup-inc.com> Cc: michelle@idgroup-inc.com Subject: Re: Problem in district 3 Hello Mr. Wilkens, Attached is a redacted version of the hearing officer’s determination on the reasonable accommodation at 1691 Orchard Street to allow 3 chickens instead of 10 chickens as requested by the applicant. The conditions of approval which can be found on page 12 of the attachment include conditions requiring enclosure of the chickens. The code has not been revised so the decision is appealable or subject to a call for review to the Planning Commission. 87 Please let me know what you are thinking. I would say you should have your decision made up by week’s end, just so you don’t run out of time. Thank you. Sincerely, Erik Sent from my iPad On Jun 19, 2023, at 8:47 PM, Jeremy Wilkens <jeremy@idgroup-inc.com> wrote: [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Erik We live in what I believe to be your district in Newport beach. We have an ongoing problem with the city, planning, and most importantly animal control. We have been trying to resolve a problem for years with an illegal chicken farm next door to our home. It poses a clear health hazard to me, my family and the neighborhood however the city refuses to protect its citizens. I would like to give you one chance to get involved and help resolve this issue before we file suit against the city. The rodent problem has now reached new levels and I am done waiting for this broken bureaucracy to take action. We have been working with planning for over a year, and animal control for almost 2 years for the noise, smell, and other related rodent problems with no success. Tonight a rat tried to chew through our screen door to get into our house. This is a public health issue since I am a cancer patient and I refuse to live like this any longer. Call me on my cell phone any time or we will be contacting legal council. 714 914 3880 Jeremy Wilkens 15262 Connector lane 88 Attachment No. PC 9 Photographs 89 INTENTIONALLY BLANK PAGE90 October 25, 2021 Received from neighboring property owner 91 October 31, 2021 Received from neighboring property owner 92 November 13, 2021 Received from neighboring property owner 93 December 8, 2022 Received from Mary Alice Campbell 94 December 8, 2022 Received from Mary Alice Campbell 95 December 8, 2022 Received from Mary Alice Campbell 96 December 8, 2022 Received from Mary Alice Campbell 97 December 8, 2022 Received from Mary Alice Campbell 98 December 8, 2022 Received from Mary Alice Campbell 99 December 8, 2022 Received from Mary Alice Campbell 100 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 101 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 102 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 103 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 104 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 105 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 106 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 107 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 108 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 109 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 110 March 24, 2023 Received from Officer Nick Ott, Newport Beach Police Department 111 June 19, 2023 Received from neighboring property owner 112 June 19, 2023 Received from neighboring property owner 113 June 19, 2023 Received from neighboring property owner 114 Attachment No. PC 10 Site Plan 115 INTENTIONALLY BLANK PAGE116 117 Site Plan prepared by City Staff 118