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HomeMy WebLinkAboutHO2013-001 - Denied Reasonable Accommodation RA2011-002 for 219 Diamond AvenueRESOLUTION NO. HO2013 -001 A RESOLUTION OF THE HEARING OFFICER OF THE CITY OF NEWPORT BEACH DENYING REASONABLE ACCOMMODATION NO. RA2011 -002 FOR ADDITIONS TO AN EXISTING TWO -UNIT RESIDENTIAL STRUCTURE TO ACCOMMODATE A DISABLED PERSON, LOCATED AT 219 DIAMOND AVENUE (PA2011 -118) THE HEARING OFFICER FOR THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. Chapter 20.52 of the Newport Beach Municipal Code (NBMC) sets forth a process to provide reasonable accommodations in the City's zoning and land use regulations, policies, and practices when needed to provide an individual with a disability an equal opportunity to use and enjoy a dwelling. 2. An application was filed by Jane Bakman, property owner, with respect to property located at 219 Diamond Avenue, and legally described as Lot 28, Block 10, Section Three, Balboa Island Tract, requesting accommodation from the requirements of Newport Beach Municipal Code (NBMC) Section 20.18.030, (Residential Zoning Districts Land Uses and Permit Requirements) to allow additions and alterations to an existing two -unit dwelling in excess of the floor area limit. 3. The subject property is located in the R -BI (Two -Unit Residential, Balboa Island) Zoning District. 4. A public hearing was held on May 30, 2013, in the Balboa Island Conference Room, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the NBMC and other applicable laws. Evidence, both written and oral, was presented and considered at this meeting. 5. The hearing was presided over by Hon. John C. Woolley, retired Judge (California Superior Court, Orange County), Hearing Officer for the City of Newport Beach. City of Newport Beach Hearing Officer Resolution No. HO2013 -001 Bakrnan Accommodation (219 Diamond Ave) Page 2 of 4 SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This project has been determined to be categorically exempt under the requirements of the California Environmental Quality Act (CEQA) under Class 1 (Existing Facilities). This class of projects has been determined not to have a significant effect on the environment and is exempt from the provisions of CEQA. This activity is also covered by the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment (Section 15061(b)(3) of the CEQA Guidelines. It can be seen with certainty that there is no possibility that this activity will have a significant effect on the environment and therefore it is not subject to CEQA. SECTION 3. FINDINGS. In accordance with Section 20.52.070 (D.2) of the Newport Beach Municipal Code, all of the following findings must be made in order to approve a reasonable accommodation: 1. Required Finding: The requested accommodation is requested by or on the behalf of one or more individuals with a disability protected under the Fair Housing Laws. Fact in Support of Finding: The applicant submitted a statement signed under penalty of perjury that the property will be occupied by a person with a disability and requires accommodation. A letter from Dr. Kanwar T. Mahal was received and considered by the Hearing Officer. At the request of the applicant, Jane Bakman, the Hearing Officer ruled that the report from the doctor remain confidential. The Hearing Officer finds that there is no factual basis for the medical condition presented in the physician's letter for the conclusions regarding the Reasonable Accommodation. 2. Required Finding: The requested accommodation is necessary to provide one or more individuals with a disability an equal opportunity to use and enjoy a dwelling. Facts Do Not Support the Finding: a. An accessible bathroom is currently provided by the existing ground floor bathroom. Any modifications necessary to make the existing bathroom accessible can be accommodated within the existing permitted floor area. b. The proposed 189 - square -foot breezeway addition proposed is in excess of that necessary to provide an accessible bathroom. C. With consideration of the factors provided by NBMC Section 20.52.070 (D -3), the requested accommodation is not necessary to provide the disabled individual an equal opportunity to use and enjoy a dwelling. The justification presented does City of Newport Beach I- learing Officer Resolution No. HO2013 -001 Bakman Accommodation (219 Diamond Ave) Page 3 of 4 not support the proposed size and location of the additions that are the subject of the accommodation request. 3. Required Finding: That the requested accommodation will not impose an undue financial or administrative burden on the City as "undue financial or administrative burden" is defined in Fair Housing Laws and interpretive case law. Fact in Support of Finding: Allowing the construction of additions to the dwelling unit would not impose an undue financial or administrative burden on the City. The administrate costs of processing the building permit will be offset by normal building permit fees. 4. Required Finding: That the requested accommodation will not result in a fundamental alteration in the nature of a City program, as "fundamental alteration" is defined in Fair Housing Laws and interpretive case law. Facts in Support Finding: a. The proposed floor area is consistent with surrounding residential properties with similar sized structures which may also exceed allowed floor area. The request to exceed the floor area is not related to the use of the property, which remains residential. The mass and bulk of the proposed structure will be .within the perimeter of the existing building footprint and will not be discernibly abrupt in scale from the surrounding structures which may comply with the floor area limitations. b. The proposed additional square footage would not intensify the existing two -unit residential use. Therefore, the increase in floor area would have no affect on traffic or parking in the vicinity; although the property is nonconforming with regard to parking since it only provides one parking space per dwelling unit. C. The increase in floor area would not conflict with the existing residential uses on site or in the neighborhood. d. There is no intention to operate the dwelling as a residential care facility. Thus, the granting of the reasonable accommodation request will not create an institutionalized environment. 5. Finding: The requested accommodation will not, under the specific facts of the case, result in a direct threat to the health or safety of other individuals or substantial physical damage to the property of others. City of Newport Beach Hearing Officer Resolution No. HO2013 -001 Bakman Accommodation (219 Diamond Ave) Page 4 of 4 Facts in Support of Finding: The property is occupied by a duplex which is consistent with the zoning district in which it is located. The addition would be constructed in accordance with the required Building and Safety Code, therefore, the proposed project would not pose a threat to the health or safety of other individuals or substantial physical damage to the property of others. As Finding No. 2 cannot be made, the reasonable accommodation must be denied. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: Section 1. The Hearing Officer of the City of Newport Beach hereby denies Reasonable Accommodation No. RA2011 -002. Section 2. This action shall become final and effective fourteen (14) days after the adoption of this Resolution unless within such time an appeal is filed with the City Clerk in accordance with the provisions of Title 20, Planning and Zoning, of the Newport Beach Municipal Code. PASSED, DENIED AND ADOPTED THIS (�alifornia Superi Hearing Officer fo ATTEST: Akj- City Clerk 2013. reti d Judge o , Orange County) City of Newport Beach