CC SR 20190305 02 - 8 Roseapple Road & 56 Limetree Lane
PUBLIC HEARING
Date: March 5, 2019
Subject: Consideration and action to conduct an appeal hearing of a Notice and Order to Abate
issued by the City for an unpermitted above-ground pool and deck located at 8
Roseapple Road and 56 Limetree Lane, against Nicholas Loloee and involving real party
in interest, Jeanne Smolley.
Subject Properties/Locations: 8 Roseapple Road and 56 Limetree Lane
1. Report of Notice Given: City Clerk
2. Declare Public Hearing Open: Mayor Duhovic
3. Request for Staff Report: Mayor Duhovic
4. Staff Report & Recommendation: Rudy Monroy, Code Enforcement Officer
5. Council Questions of Staff (factual and without bias):
6. Public Testimony:
Principal Parties 10 Minutes Each. The appellant or their representative speaks first and will generally be allowed ten minutes. If the
applicant is different from the appellant, the applicant or their representative will speak following the appellant and will also be
allowed ten minutes to make a presentation.
A. Appellant: Nicholas Loloee
i. Mayor Duhovic invites the Appellant to speak. (10 mins.)
B. Testimony from members of the public:
The normal time limit for each speaker is three (3) minutes. The Presiding Officer may grant additional time to a representative speaking
for an entire group. The Mayor also may adjust the time limit for individual speakers depending upon the number of speakers who
intend to speak.
7. Rebuttal: Mayor Duhovic invites brief rebuttals by Appellant and Applicant. (3 mins)
Normally, the applicants and appellants will be limited to a three (3) minute rebuttal, if requested after all other interested persons have
spoken.
8. Council Questions of Appellant (factual and without bias):
9. Declare Hearing Closed/or Continue the Public Hearing to a later date: Mayor Duhovic
10. Council Deliberation:
The Council may ask staff to address questions raised by the testimony, or to clarify matters. Staff and/or Council may also answer
questions posed by speakers during their testimony. The Council will then debate and/or make motions on the matter.
11. Council Action:
The Council may: vote on the item; offer amendments or substitute motions to decide the matter; reopen the hearing for additional
testimony; continue the matter to a later date for a decision.
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 03/05/2019
AGENDA REPORT AGENDA HEADING: Public Hearing
AGENDA DESCRIPTION:
Consideration and action to conduct an appeal hearing of a Notice and Order to Abate
issued by the City for an unpermitted above-ground pool and deck located at 8
Roseapple Road and 56 Limetree Lane, against Nicholas Loloee and involving real
party in interest, Jeanne Smolley.
RECOMMENDED COUNCIL ACTION:
(1) Adopt Resolution No. 2019-__ thereby upholding the City’s Notice and Order to
Abate and directing Staff to proceed with the abatement of the unpermitted
above-ground pool and deck owned by Nicholas Loloee located at 8 Roseapple
Road and 56 Limetree Lane.
FISCAL IMPACT: The City projects the cost to remove the above-ground pool and
deck to be approximately $30,000 based on cost estimates provided by demolition
contractors. Abatement costs, including City Attorney and administrative costs, incurred
by the City can be recovered, albeit over an extended period of time, by either placing a
lien on the property, credit report collections, or Franchise Tax Board collections. Upon
completion of the abatement work, the City will identify the most effective cost recovery
option for the City Council’s consideration at a duly noticed public hearing.
Amount Budgeted: $ 55,000
Additional Appropriation: $ none
Account Number(s): 101-400-4140-5101
ORIGINATED BY: Rudy Monroy, Code Enforcement Officer RM
Hans Van Ligten, Consulting Attorney
REVIEWED BY: Ara Mihranian, Director of Community Development
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Resolution No. 2019-__ (page A-1)
B. Above-ground Pool Photo Exhibit (page B-1)
C. Deck Photo Exhibit (page C-1)
D. September 8, 2014 Notice of Violation Letter (page D-1)
E. Chapter 17.67 of RPVMC - Reasonable Accommodations for Individuals
with Disabilities (page E-1)
F. February 22, 2018 letter to Ms. Smolley (page F-1)
G. April 10, 2018 Original Notice and Order to Abate a Public Nuisance (page
G-1)
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H. June 18, 2018 Appellants Appeal Letter (page H-1)
I. December 21, 2018 New Revised Notice and Order to Abate a Public
Nuisance (page I-1)
J. January 23, 2019, Letter from City Prosecutor to Stephen B. Goldberg and
Rana Nader (page J-1)
K. January 30, 2019, Notice of Appeal from Rana Nader (page K-1)
BACKGROUND:
In August 2014, the City’s Code Enforcement Officer investigated a public complaint
and confirmed that an unpermitted above-ground pool and deck were constructed on
the subject property (Attachments B and C). In a letter dated September 8, 2014 (see
Attachment D), the City notified Mr. Loloee that the above-ground pool and deck is in
violation of the Rancho Palos Verdes Municipal Code (RPVMC) and must be removed.
The properties involved in this code enforcement matter are 8 Roseapple Road and 56
Limetree Lane within Zone 6 of the Landslide Moratorium Area, an active slide zone.
In response to the City’s September 8, 2014, letter, Mr. Loloee’s counsel indicated that
Mr. Loloee is physically disabled within the definition of the American Disabilities Act
(ADA) and in accordance with the Reasonable Accommodations for Individuals with
Disabilities Chapter 17.67 of the RPVMC (Attachment E), and that the above-ground
pool and deck are necessary for his use and enjoyment of his property.
Between 2014 and 2017, City Staff, the City Prosecutor, the Appellant, and the
Appellant’s legal counsel held several meetings to address the unpermitted structures.
At some point in the discussions that ensued, Mr. Loloee and his legal counsel were
informed that the unpermitted structures installed by Mr. Loloee are on property owned
by Ms. Jeanne Smolley, 56 Limetree Lane, the lot located several hundred feet below
Mr. Loloee’s property. The City indicated that a reasonable accommodation in
accordance with Chapter 17.67 of the RPVMC could not apply on property owned by
another party. Furthermore, the City indicated that the property owner would need to
sign an application for any permits sought.
At a meeting of December 8, 2017, with the Appellant, the City Prosecutor and City
Staff, the parties agreed that Mr. Loloee was to have until February 28, 2018, to submit
the necessary documentation for consideration of a reasonable accommodation,
including authorization from the other property owner, Ms. Smolley. There has been no
compliance.
On February 22, 2018, the City informed Ms. Smolley that the unpermitted above-
ground pool and deck are on her property and are in violation of the RPVMC
(Attachment F).
On March 5, 2018, a meeting was held with the City Prosecutor, City Staff, and Ms.
Smolley. At this meeting, Ms. Smolley insisted that the unpermitted structures are not
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on her property stating that in her opinion lot lines move with the land that is sliding. She
has consistently stated that her home and associated improvements have moved with
the property lines, and for that reason, Mr. Loloee’s unpermit ted structures are not on
her property of 56 Limetree Lane, but the property of 8 Roseapple road. As the result of
land movement, the unpermitted above-ground pool and deck are not physically located
within the legally established property lines deeded to owner of 8 Roseapple Road, but
rather are located on 56 Limetree Lane. For this reason, the City is unable to support a
request to allow any improvements on a property owner by another person, Ms.
Smolley, without her permission. At the advice of her legal counsel, Ms. Smolley
expressed a willingness to sign a permit application but without admitting she is the
property owner.
On April 10, 2018, the City issued a Notice and Order to Abate the above-ground pool
and deck based on unpermitted construction (see Attachment G).
On June 18, 2018, the Appellant’s legal counsel submitted an appeal contesting the
Notice and Order to Abate (Attachment H) based on, among other things, the
Appellant’s physical disability and the City’s inability to demonstrate the structures are a
public nuisance in accordance to California Civil Code §3479.
On August 31, 2018, the City held an Administrative Hearing on the Appeal. In
response to the evidence introduced at the hearing, the City’s Administrative Hearing
Officer, Gary I. Kusunoki, issued an administrative hearing decision granting the City’s
motion to vacate the current abatement process at the Subject Properties without
prejudice because of processing omissions including that such an appeal shall only be
considered by the City Council, not the Administrative Hearing Office, in accordance
with §8.24.080(D). Notwithstanding, the unpermitted above-ground pool and deck
remain in violation of the RPVMC. On October 15, 2018, an inspection by the City’s
Code Enforcement Officer confirmed the violation still existed.
On October 15, 2018, the City’s Code Enforcement Officer posted the Revised Notice
and Order to Abate (“Revised Notice”) on both Subject Properties. On October 24,
2018, the City’s Code Enforcement Officer sent the Revised Notice to both parties via
regular and certified mail. The Revised Notice informed Mr. Loloee that he had until
November 14, 2018, to appeal to the City Council, which is more than the ten days
provided by RPVMC §8.24.080(D). No appeal was filed nor did the City hear from any
interested party. In the spirit of cooperation, the City Prosecutor reached out to the
interested parties.
On December 11, 2018, Mr. Loloee’s legal counsel claimed that Mr. Loloee never
received the Revised Notice. Although not required to do so, the City issued a new
Revised Notice and Order to Abate a Public Nuisance (“New Revised Notice”) on
December 21, 2018 (Attachment I). The New Revised Notice provided that the parties
had until January 31, 2019, to appeal the matter to the City Council.
On January 23, 2019, the City Prosecutor sent a letter to the Appellant’s legal counsel,
Rana Nader, and Ms. Smolley’s legal counsel, Stephen B. Goldberg, reminding them
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that they had until January 31, 2019, to file an appeal of the City’s New Revised Notice
(Attachment J).
On January 30, 2019, Mr. Loloee’s legal counsel, Rana Nader, filed an appeal
(Attachment K) again contesting the New Revised Notice based on, among other things,
the Appellant’s physical disability and the City’s inability to demonstrate the structures
are a public nuisance in accordance with California Civil Code §3479.
DISCUSSION:
In accordance with RPVMC §15.20.020 (Moratorium on Land Use Permits), the City
currently has a moratorium on the “filing, processing, approval or issuance of building,
grading, or other permits, environmental assessments, environmental impact reports,
conditional use permits, tentative maps or parcel maps in the area of the city identified
as the ‘landslide moratorium area’ as outlined in red on the landslide moratorium map
on file in the office of the director, unless expressly allowed by §15.20.040
(Exceptions).” Exceptions to the Moratorium include, among other things, structures that
existed before the Moratorium was enacted, and other certain new construction.
The above-ground pool and deck were built by Mr. Loloee without any zoning
entitlements and building permits or proper review by engineering professionals at the
City. The City has, on numerous occasions, explained to Mr. Loloee that the above-
ground pool and deck were unpermitted and are located in the Moratorium area, posing
great danger to the public in the event of a landflow, ground movement, or other natural
disaster. The City has also informed Mr. Loloee and Ms. Smolley that the structures are
actually located on Ms. Smolley’s property at 56 Limetree Lane, rather than on
Mr. Loloee’s property at 8 Roseapple Road. Although Mr. Loloee had previously sought
an exception from the Moratorium, he never submitted complete paperwork
demonstrating that such exception was appropriate . Despite numerous attempts by the
City to reach an amicable resolution, Mr. Loloee has failed to comply with the
restrictions in the RPVMC. Thus, the City is seeking to abate the nuisance caused by
the dangerous conditions at 56 Limetree Lane to ensure the protection of the public
health, safety, and welfare.
The unpermitted above-ground pool and deck sitting on a hillside in a landslide area are
per se dangerous and “injurious to health,” constituting a public nuisance requiring
abatement. “The elements ‘of a cause of action for public nuisance include the
existence of a duty and causation.’ Public nuisance liability ‘does not hinge on whether
the defendant owns, possesses or controls the property, nor on whether he is in a
position to abate the nuisance; the critical question is whether the defendant created or
assisted in the creation of the nuisance.’” (Melton v. Boustred (2010) 183 Cal.App.4th
521, 542. (Emphasis added.) California Civil Code §3480 provides: “A public nuisance
is one which affects at the same time an entire community or neighborhood, or an y
considerable number of persons; although the extent of the annoyance or damage
inflicted upon individuals may be unequal.” Here, Mr. Loloee created the dangerous
condition by constructing an above-ground pool and deck without proper permitting in
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violation of the RPVMC, including the City’s Moratorium. He has admitted to conducting
such acts and there is no argument to the contrary.
An exception to the nuisance rule exists when a party acted under statutory authority,
because nothing done under the express authority of a statute can be deemed a
nuisance. (Cal. Civ. Code, § 3482.) Further, courts have determined that the statutory
sanction is limited to instances when the “acts complained of are authorized by the
express terms of the statute under which the justification is made” or by the plainest and
most necessary implication from a statute, so that it can be fairly stated that the
Legislature contemplated the doing of the very act which occasions the injury.
(Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291.) Here, Mr. Loloee has not
acted under any statutory authority which would excuse him from the nuisance
abatement. He has provided no evidence of any statute that applies to the case at hand,
let alone a statute that expressly allows him to build unpermitted structures creating a
dangerous condition to the public.
In addition to any claim that the above-ground pool and deck are not nuisances
requiring abatement, Mr. Loloee has also requested that the above-ground pool and
accompanying deck be permitted as reasonable accommodations under the Americans
with Disabilities Act (“ADA”) and Chapter 17.67 of the RPVMC. He asserts that the pool
is used for therapeutic purposes which help alleviate back pain due to a herniated disc.
Title II of the ADA “prohibit[s] discrimination on the basis of disability.” (Lovell v.
Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).) Title II provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subject to discrimination by such entity.” (42 U.S.C. § 12132.) The
Ninth Circuit has construed “the ADA’s broad language [as] bring[ing] within its scope
‘anything a public entity does.’” (Barden v. City of Sacramento, 292 F.3d 1073, 1076
(9th Cir. 2002).)
Thus, to state a claim for ADA discrimination, Mr. Loloee must allege four elements:
1. he is an individual with a disability;
2. he is otherwise qualified to participate in or receive the benefit of some public
entity's services, programs, or activities;
3. he was either excluded from participation in or denied the benefits of the public
entity’s services, programs, or activities, or was otherwise discriminated against
by the public entity; and
4. such exclusion, denial of benefits, or discrimination was by reason of his
disability.
(McGary v. City of Portland, 386 F .3d 1259, 1265 (9th Cir. 2004) (internal quotation
marks omitted).)
If we assume for purposes of analysis that Mr. Loloee’s disability is “otherwise qualified”
under the ADA, he has not shown that the City’s purported discriminatory act, or Mr.
Loloee’s exclusion from building under the Moratorium exception, was due to his
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disability. “[A] plaintiff proceeding under Title II of the ADA must . . . prove that the
exclusion from participation in the program was ‘solely by reason of disability.’”
(Weinreich v. Los Angeles City. Metro. Transp. Auth ., 114 F.3d 976, 978-79 (9th Cir.
1997).)
The Ninth Circuit held that when a neutral ordinance is administered in a way that
discriminates against people with disabilities, then it is appropriate to inquire whether
the public entity can make a reasonable accommodation. (Bay Area Addiction Research
& Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999).) If discrimination
is shown to exist, “the ADA’s regulations mandate reasonable modifications to those
policies in order to avoid discrimination on the basis of disability, at least when such
modification would not fundamentally alter the nature of the services provided by the
state.” (Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003).
The reasonable modifications test provides that “[a] public entity shall make reasonable
modifications in policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally alter the nature
of the service, program, or activity.” (28 C.F.R. § 35.130(b)(7) (emphasis added).)
The ADA requires only accommodations that are reasonable . Where a law is intended
to protect the community, an accommodation that threatens the health and safety of the
community may be unreasonable. Courts generally will not second-guess the public
health and safety decisions of state legislatures acting within their traditional police
powers, but the ADA and accompanying regulations require courts to ensure that the
decision reached by the state authority is appropriate under the law and in light of
proposed alternatives. (Crowder v. Kitagawa, 81 F.3d 1480, 1485.) In no event is the
City required to undertake measures that would impose an undue financial or
administrative burden or effect a fundamental alteration in the nature of the service.
(See Tennessee v. Lane, 541 U.S. 509, 532 (2004).)
As the individual requesting a reasonable accommodation, Mr. Loloee has the sole
burden of proving that the unpermitted above-ground pool and deck are in fact on his
property. In the event it is not, Mr. Loloee needs to obtain permission from Ms. Smolley,
the appropriate owner of the property upon which the unpermitted structures are
located. The City has provided Mr. Loloee with aerial photographs demonstrating the
approximate location of the unpermitted structures relative to 8 Roseapple Road. As
evidenced, the unpermitted above-ground pool and deck are nowhere near the location
of 8 Roseapple Road, because Mr. Loloee’s residence and related improvements have
moved significantly over time, as they are located in one of the City’s active landslide
areas and are currently located at 56 Limetree Lane. Despite multiple requests from the
City, Mr. Loloee has not provided the City with any authorization from Ms. Smolley, the
owner of 56 Limetree Lane where the above-ground pool and deck are currently
located, to apply to an exception to the Moratorium.
Although the City is required to make reasonable modifications to the enforcement of its
code (zoning) requirements, including enforcement policies and procedures, where the
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modifications are necessary to avoid discrimination on the basis of disability, the City is
not required to make these modifications if it can show that the proposed modification
would fundamentally alter the nature of the service, program, or activity. (2 8 C.F.R. §
35.130, subd. (b)(7).) The City has given Mr. Loloee ample opportunity to submit all
necessary documentation for consideration of a reasonable accommodation , however
he has failed to provide such documentation. The enactment of the Moratorium was
precisely to prevent dangerous conditions such as open pools and other unpermitted
structures, which become hazards when natural disasters occur or the active movement
of the land in the area posing a threat to the public’s health and safety. Giving Mr.
Loloee an exception to the Moratorium without evidence demonstrating that such an
exception would not result in increased harm or injury during a natural disaster would be
a fundamental alteration of the Moratorium.
As such, because the above-ground pool and deck are dangerous conditions
constituting a nuisance, and because there are currently no reasonable modifications
that can be taken to remove the danger posed by these structures to the public health,
safety, and welfare, the City Council should deny the appeal and direct Staff to proceed
with the abatement.
If the City proceeds with the abatement, the next step would be to obtain an inspection
warrant authorizing the City and the demolition contractor to conduct an inspection to
assess the breadth and scope of the abatement. The abatement would occur soon after
the inspection.
As reported under the Fiscal Impact section, the City will pursue recovering all costs
incurred with the abatement in accordance to §8.24.110 of the RPVMC. The City will
keep an itemized account of all costs which may include, but are not limited to, any and
all direct costs and expenses related to such items as investigation, boundary
determination, measurements, personal salaries benefits, operational, fees for experts
or consultants, legal costs, and procedures associated with collecting moneys due
hereunder. Cost recovery could occur by either lien on the property, credit collections,
or Franchise Tax Board collections. The City will identify the most effective cost
recovery option for the City Council’s consideration at a duly noticed public hearing after
the abatement has been completed.
ADDITIONAL INFORMATION:
Public Notice
On February 16, 2019, a public notice announcing the appeal hearing was published in
the Daily Breeze and mailed to property owners within a 500’ radius of 56 Limetree
Lane. Additionally, the Appellant, the Appellant’s legal counsel, Jeannie Smolley, and
Jeannie Smolley’s legal counsel were mailed the public notice.
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Public Comments
To date, the City has not received any public correspondence in response to the public
notice.
CONCLUSION:
Staff recommends that the City Council uphold the new Notice and Order to Abate a
Public Nuisance sent to Mr. Loloee and Ms. Smolley on December 21, 2018 , and to
direct Staff to proceed with the abatement.
ALTERNATIVES:
In addition to the Staff recommendation(s), the following alternative actions are
available for the City Council’s consideration:
1. Give Mr. Loloee an extension to complete his application for an exception
to the Moratorium.
2. Provide Staff, the property owner, and/or the Appellant with additional
direction regarding this matter, and continue the appeal hearing to a date
certain.
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Resolution No. 2019-__
Page 1 of 4
RESOLUTION NO. 2019-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF RANCHO PALOS VERDES, CALIFORNIA DENYING
THE NOTICE AND ORDER TO ABATE APPEAL FILED BY
NICHOLAS LOLOEE AND THEREBY MOVING FORWARD
WITH THE ABATEMENT OF THE UNPERMITTED ABOVE-
GROUND POOL AND DECK LOCATED AT 8
ROSEAPPLE ROAD AND 56 LIMETREE LANE AGAINST
NICHOLAS LOLOEE AND INVOLVING REAL PARTY IN
INTEREST, JEANNE SMOLLEY.
WHEREAS, the City of Rancho Palos Verdes (“City”) has an adopted Municipal
Code;
WHEREAS, §15.20.020 (Moratorium on Land Use Permits) of the Rancho Palos
Verdes Municipal Code (“RPVMC”) places a moratorium on the “filing, processing,
approval or issuance of building, grading, or other permits, environmental assessments,
environmental impact reports, conditional use permits, tentative maps or parcel maps in
the area of the city identified as the ‘landslide moratorium area’ as outlined in red on the
landslide moratorium map on file in the office of the director, unless expressly allowed
by §15.20.040 (Exceptions)” (“Moratorium”);
WHEREAS, RPVMC §15.20.040 allows exceptions to the Moratorium if an
applicant submits a completed application and the application is accepted by the City;
WHEREAS, the properties located at 8 Roseapple Road and 56 Limetree Lane
are located in Zone 6 of the Landslide Moratorium Area of the City;
WHEREAS, Nicholas Loloee, owner and resident of 8 Roseapple Road, installed
an above-ground pool and deck (“structures”);
WHEREAS, Mr. Loloee’s above-ground pool and deck are located on 56
Limetree Lane, a property belonging to Jeanne Smolley (collectively with Mr. Loloee
and the City, “Parties”);
WHEREAS, Mr. Loloee never applied for or obtained a permit for the structures
nor applied for or obtained exceptions to the City’s Moratorium in accordance to
§15.20.040 of the RPVMC;
WHEREAS, the City has informed Mr. Loloee and Ms. Smolley numerous times
of the unpermitted structures and their violation of the RPVMC;
WHEREAS, the City has cited Mr. Loloee and Ms. Smolley for the unpermitted
structures;
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Resolution No. 2019-__
Page 2 of 4
WHEREAS, the Parties failed to reach an amicable resolution regarding the
unpermitted structures;
WHEREAS, on December 21, 2018, the City properly noticed and served Mr.
Loloee and Ms. Smolley a Notice and Order to Abate a Public Nuisance;
WHEREAS, on January 30, 2019, an appeal of the City’s Notice and Order to
Abate was filed by Ms. Rana Nader on behalf of Mr. Loloee; and,
NOW, THEREFORE, the City Council of the City of Rancho Palos Verdes DOES
HEREBY FIND, DETERMINE, AND RESOLVE as follows:
Section 1: Having heard and considered the oral, written, and documentary
evidence presented at the duly-noticed public hearing conducted by the City Council on
March 5, 2019, the City Council makes the following findings:
A. Nicholas Loloee, the owner and resident of 8 Roseapple Road, installed,
without obtaining City zoning approvals and building permits, an above-
ground pool and deck (the “Unpermitted Structures”).
B. Mr. Loloee actually installed them on property located at 56 Limetree
Lane.
C. Jeanne Smolley is the owner and resident of 56 Limetree Lane.
D. Both 8 Roseapple Road and 56 Limetree Lane are located in Zone 6 of
the City’s Landslide Moratorium Area, an active slide zone.
E. The Unpermitted Structures owned by Nicholas Loloee and located at 56
Limetree Lane are subject to Rancho Palos Verdes Municipal Code
(“RPVMC”) §15.20.020 (Moratorium on Land Use Permits) (“Moratorium”).
Mr. Loloee, did not apply for a permit to construct the Unpermitted
Structures and did not submit a completed application for ex ception from
the Moratorium.
F. Ms. Smolley and Mr. Loloee contend that the Unpermitted Structures are
not located at 56 Limetree Lane, but have not provided on geological
maps or other evidence refuting the City’s assertion that the Unpermitted
Structures are, in fact, located on Ms. Smolley’s property rather than
Mr. Loloee’s property.
G. On or about October 15, 2018, the City properly issued and served on
Mr. Loloee’s and Ms. Smolley’s property a Revised Notice and Order to
Abate a Public Nuisance (“Revised Notice”). The Revised Notice was sent
to Mr. Loloee and Ms. Smolley via certified and regular mail on or about
October 24, 2018. The Revised Notice indicated that the parities had until
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Resolution No. 2019-__
Page 3 of 4
November 14, 2018, to appeal to the City Council, which is more than t he
ten (10) days provided for by RPVMC §8.24.080(D).
H. On December 11, 2018, Mr. Loloee’s counsel claimed that Mr. Loloee
never received the Revised Notice. Although not required to do so, the
City issued a New Revised Notice and Order to Abate a Public Nuisance
(“New Revised Notice”) on December 21, 2018. The New Revised Notice
provided that the parties had until January 31, 2019, to appeal the matter
to the City Council. On January 30, 2019, Mr. Loloee appealed the New
Revised Notice.
I. City Staff has made various efforts to resolve these issues with Mr. Loloee
and Ms. Smolley. Despite numerous meetings, exchanges of
correspondence, and opportunities to come into compliance with RPVMC
§15.20.020, neither Mr. Loloee nor Ms. Smolley have brought the
Unpermitted Structures into compliance.
J. Based upon all the evidence presented, and after hearing the arguments
and testimony on behalf of Mr. Loloee and Ms. Smolley, the public, and
City Staff, the City Council finds the evidence of construction of the
Unpermitted Structures undisputed because Mr. Loloee admits that they
exist. The City Council finds that no permits of any kind (zoning or
building) nor any exceptions were obtained by Mr. Loloee or Ms. Smolley,
therefore, the construction of the Unpermitted Structures was in violation
of the RPVMC. The City Council finds no basis for finding any legal
justification requiring or authorizing the Unpermitted Structures pursuant to
the Americans with Disabilities Act or any other provision of law.
K. The City Council further finds that the Unpermitted Structures are a public
nuisance as defined under RPVMC §8.24.030(F) and §8.24.070. The
Unpermitted Structures are “injurious to health,” interfering “with the
comfortable enjoyment of life or property by a neighborhood or by any
considerable number of person in the City irrespective of whether the
annoyance or damage inflicted upon individuals is unequal.”
L. There are currently no reasonable modifications that can be taken to
remove the danger posed by the Unpermitted S tructures to the public
health, safety, and welfare.
Section 2: Based on the information included in the Staff Report, the testimony
and evidence presented at the public hearing, the administrative records related to that
prior proceeding, the Minutes and the other records of this proceeding on file with the
City, the City Council of the City of Rancho Palos Verdes hereby denies the appeal filed
by Ms. Rana Nader on behalf of Nicholas Loloee of the City’s Notice and Order to Abate
a Public Nuisance and directs City Staff to proceed with the abatement of the
Unpermitted Structures.
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Resolution No. 2019-__
Page 4 of 4
PASSED, APPROVED, AND ADOPTED this 5th day of March 2019.
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________
Mayor
Attest:
_____________________
City Clerk
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Emily Colborn, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2019-__ was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on March 5, 2019.
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Above-ground Therapy Pool Aerial Exhibit
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B-1
B-2
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C-1
C-2 C-2
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D-2
Chapter 17.67 - REASONABLE ACCOMMODATIONS FOR INDIVIDUALS WITH DISABILITIES
Sections
17.67.010 - Purpose.
A. Pursuant to the federal Fair Housing Amendments Act of 1988 and the California Fair Employment
and Housing Act, this chapter establishes formal procedures allowing individuals with disabilities and
their representatives to request reasonable accommodations in the application of zoning laws and
other land use regulations, policies and procedures when necessary to eliminate barriers to housing
opportunities.
B. A reasonable accommodation granted pursuant to this chapter shall not be construed as an
amendment to this title or a change to the maps which are part of this title.
(Ord. No. 518, § 5, 4-5-11)
17.67.020 - Applicability.
A. A request for a reasonable accommodation may be made by any person with a disability, their
representative, or any developer or provider of housing for an individual with a disability, when the
application of a zoning law or other land use regulation, policy or prac tice acts as a barrier to fair
housing opportunities. This chapter is intended for the benefit of those persons who are defined as
disabled under Section 17.67.030(B) of this chapter.
B. A request for a reasonable accommodation may include a modification or exception to the rules,
standards and practices for the siting, development and use of housing or housing -related facilities
that would eliminate regulatory barriers and provide a person with a disability equal opportunity to the
housing of their choice. Requests for a reasonable accommodation shall be made in the manner
prescribed by this chapter.
C. A request for a reasonable accommodation shall be granted to an individual and shall not run with
the land, unless the community development director determines that:
1. The modification is physically integrated into the residential structure and cannot easily be
removed or altered to comply with Chapters 17.02 and 17.04 of the Rancho Palos Verdes
Municipal Code; or
2. The accommodation is to be used by another individual with a disability.
(Ord. No. 518, § 5, 4-5-11)
17.67.030 - Definitions.
A. "Fair Housing Laws" means the Federal Fair Housing Amendments Act of 1988 and California's Fair
Employment and Housing Act, as these statutes now exist or may be amended from time to time,
and each Act's implementing regulations.
B. "Individual with a disability" means a person who has a physical or mental impairment that limits one
or more major life activities, anyone who is regarded as having that type of impairment or, anyone
who has a record of that type of impairment. People who are currently using illegal substances are
not considered individuals with a disability under the fair housing laws, unless they have an
otherwise qualifying disability.
(Ord. No. 518, § 5, 4-5-11)
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17.67.040 - Application requirements.
A. Application. Requests for a reasonable accommodation shall be submitted on an application form
provided by the community development department, or in the form of a letter to the community
development director. The application shall contain the following information:
1. The applicant's name, address and telephone number;
2. Address of the property for which the request is being made;
3. The current actual use of the property;
4. Documentation that the applicant is: (A) an individual with a disability; (B) applying on behalf of
one or more individuals with a disability; or (C) a developer or provider of housing for one or
more individuals with a disability;
5. The specific exception or modification to the zoning code provision, regulation, policy, or
practice that is being requested;
6. Documentation that the requested accommodation is necessary to provide one or more
individuals with a disability an equal opportuni ty to use and enjoy the residence.
(Ord. No. 518, § 5, 4-5-11)
17.67.050 - Reviewing authority.
A. Community Development Director. Requests for a reasonable accommodation shall be reviewed by
the community development director if no approval is sought other than the r equest for a reasonable
accommodation.
(Ord. No. 518, § 5, 4-5-11)
17.67.060 - Procedures.
A. A written request for reasonable accommodations shall be made pursuant to Section 17.67.040 of
this Code.
B. If the applicant needs assistance in making the request for reasonable accommodation, the
community development department shall provide the assistance necessary to ensure that the
process is accessible to the applicant.
C. Within thirty days of an application being submitted, the director may reques t additional information
necessary for making a determination regarding the request for a reasonable accommodation that
complies with the fair housing law's protections and the privacy rights of the individual with a
disability to use the specified housing. If additional information is requested, the sixty-day time period
for making a determination on the request stops running until the additional information is provided.
(Ord. No. 518, § 5, 4-5-11)
17.67.070 - Action by the director.
A. The community development director shall issue a written determination within sixty days of the
receipt of a complete application, unless extended in writing by mutual agreement of the city and the
applicant.
B. The director may grant a reasonable accommodation request only upon finding that:
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1. The housing, which is the subject of the request for reasonable accommodation, will be used by
an individual with a disability protected under the fair housing laws;
2. The requested accommodation is necessary to make housing available to an individual with a
disability protected under the fair housing laws;
3. The requested accommodation will not impose an undue financial or administrative burden on
the city;
4. The requested accommodation will not require a fundamental alteration in the nature of the
city's zoning regulations and policies; and
5. There are no alternatives to the requested accommodations that may provide an equivalent
level of benefit.
C. The director may impose conditions upon the approval of the reasonable accommodation request
deemed reasonable and necessary to ensure that the reasonable accommodation would comply with
the findings required by subsection B above. Conditions of approval may, wh ere deemed
appropriate, provide for any or all of the following:
1. The reasonable accommodation shall only be applicable to particular individual(s).
2. Periodic inspection of the affected premises, as specified in the conditions, to verify compliance
with this Chapter and with any applicable conditions of approval.
3. Prior to any transfer of interest in the premises, notice shall be given to the transferee of the
existence of the modification, and the requirements that the transferee apply for a ne w
modification as necessary. Once such transfer takes eff ect, the originally approved modification
shall have no further validity.
4. Removal of the improvement if the need for which the accommodation was granted no longer
exists.
5. Time limits and/or expiration of the approval if the need for which the accommodation was
granted no longer exists.
6. Other reasonable conditions deemed necessary to protect the public health, safety, and welfare.
D. Prior to the issuance of any permits relative to an approved reasonable accommodation, the director
may require the applicant and/or owner to record a covenant in the county recorder's office
acknowledging and agreeing to comply with the terms and conditio ns established in the
determination, and to provide notice to future owners that a reasonable accommodation h as been
approved.
(Ord. No. 518, § 5, 4-5-11)
17.67.080 - Notice of determination.
Upon approval of a reasonable accommodation request by the director, written notice of such
decision shall be given to the applicant and to all owners of property adjacen t to the subject property.
Notice of denial shall be given to only the applicant.
(Ord. No. 518, § 5, 4-5-11)
17.67.090 - Appeal of determination.
Any interested person may appeal a decision of the director to the planning commission and a
decision of the planning commission to the city council pursuant to Chapter 17.80 (Hearing and Appeal
Procedures) of this title. No reasonable accommodation shall be effective and no development permitted
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by a reasonable accommodation shall be initiated or construction started, until the appeal period has
been exhausted.
(Ord. No. 518, § 5, 4-5-11)
17.67.100 - Expiration of approval.
Any modification granted through a reasonable accommodations procedure for an individual with a
disability shall be considered a person al accommodation for the individual applicant and shall not run with
the land.
(Ord. No. 518, § 5, 4-5-11)
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