HomeMy WebLinkAbout06-27-2024_Order After Hearing_515 36th Street1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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-1- FINDINGS OF FACT AND STATEMENT OF DECISION
BEFORE THE ADMINISTRATIVE HEARING OFFICER FOR THE CITY OF NEWPORT BEACH, CALIFORNIA
IN RE: 515 36TH STREET, SUBJECT PROPERTY, APPLICATION FOR PERMIT EXTENSION UNDER NEWPORT BEACH MUNIIPAL CODE SECTION 15.02.095.
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Jamaar M. Boyd-Weatherby Date: June 27, 2024 Time: 9:15 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under a
building permit issued for 515 36th Street (“Subject Property”) in the City of Newport Beach
under Section 105.3.4 of the Newport Beach Administrative Code (a locally amended version of
the California Building Code) as codified at Newport Beach Municipal Code (“NBMC”) Section
15.02.095. Jamaar M. Boyd-Weatherby (“Hearing Officer”), sitting as the Hearing Officer under
NBAC Section 105.3.4 heard this matter on June 27, 2024 at 9:15 a.m. (the “Hearing”). The
Hearing Officer is a licensed attorney in the State of California and serves as Hearing Officer
under contract with the City of Newport Beach (“City”). Pursuant to NBAC Section 105.3.4, the
Hearing Officer shall hear and decide whether this application for extension should be granted,
conditionally granted, or denied.
2. City is a charter city and municipal corporation existing under the laws of the State of
California. The City was represented at the Hearing by Tonee Thai, Chief Building Official
(“City Representative”). Also in attendance from the City was Building Inspector Chris Sanchez.
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-2- FINDINGS OF FACT AND STATEMENT OF DECISION
3. Bill Chow, the contractor for the Property (“Owner’s Representative”), appeared in
support of the application for an extension of time. Collectively, the Owner’s Representative and
Owner, 777 Seaview Island LLC, are referred to as the “Applicant.”
4. There were no members of the public present at the hearing.
5. The Hearing Officer considered the testimony of all witnesses at the hearing and all
documents made part of the administrative record. The mere fact that a witness’s testimony or
document may not be specifically referred to below does not and shall not be construed to mean
that said testimony or document was not considered.
6. Pursuant to the Administrative Hearing Rules and Procedures of the City of Newport
Beach, the hearing was digitally recorded.
7. The documents presented to the Hearing Officer during the hearing are the
administrative record of the hearing.
ISSUES
8. Pursuant to Section 105.3.4 of the NBAC, the issue to be determined by the Hearing
Officer is whether to grant, or conditionally grant, up to a one hundred and eighty (180) calendar
day extension, based on a finding that either (i) special circumstances warrant an extension of
time or (ii) the failure to meet the time limit was caused by circumstances beyond the property
owner’s, applicant’s or their contractor’s control.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
9. This matter is before the Hearing Officer consistent with Section 105.3.4 of the
NBAC.
10. The City of Newport Beach adopted the 2019 California Building Code by reference
under Ordinance No. 2019-17 as the Newport Beach Administrative Code, codified at Newport
Beach Municipal Code Section 15.02.010, which reads in part, “The City Council adopts and
incorporates by reference, as though set forth in full in this section, Chapter 1, Division II of the
2019 Edition of the California Building Code as published by the International Code Council.”
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-3- FINDINGS OF FACT AND STATEMENT OF DECISION
11. The City of Newport Beach adopted certain additions, amendments, and deletions to
the 2019 California Building Code, pursuant to its authority under California Health and Safety
Code Section 17958.5.
12. One such addition is the addition of Sections 105.3.3, 105.3.4, and 105.3.5 to the
Newport Beach Administrative Code, codified at Newport Beach Municipal Code Section
15.02.095. Section 105.3.3 reads:
“For any one-unit or two-unit dwelling for which a tentative and final tract map is not required, the maximum allowable time to complete construction for any work that requires a building permit including, but not limited to, any construction, reconstruction,
rehabilitation, renovation, addition(s), modification(s), improvement(s), or alteration(s),
shall be limited to three (3) years, unless an extension is granted in accordance with Section 105.3.4.
For building permits issued on or after June 1, 2019, the time limit to complete construction shall begin on the date of issuance of the first or original building permit. For building permits issued prior to June 1, 2019, the time limit to complete construction
shall be three (3) years from June 1, 2019.
Final inspection and approval of the construction work by the City shall mark the date of
construction completion for purposes of Section 15.02.095. Time limits set forth herein shall not be extended by issuance of a subsequent building permit(s) for the same project.”
13. Permit No. X2018-3856 was issued by the City of Newport Beach on June 12, 2020
(“Permit”). The Permit was set to expire on June 12, 2023.
14. Permits may be extended up to one year beyond the initial three-year deadline by
application to the City Building Official. (NBAC 105.3.4(1)).
15. The one year extension was granted by the Building Official on March 13, 2023. As a
result of the Building Official’s actions, the Permit was set to expire on June 11, 2024.
16. Section 105.3.4 provides that if a project is not completed within the timeframe
authorized by the Building Official, the property owner or their authorized agent may seek
further extension from the City’s Hearing Officer. The property owner or applicant may seek two
extensions from the Hearing Officer which shall not exceed 180 days each. To grant the
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-4- FINDINGS OF FACT AND STATEMENT OF DECISION
extension, the Hearing Officer must find that either (i) special circumstances warrant an
extension of time or (ii) the failure to meet the time limit was caused by circumstances beyond
the property owner’s, applicant’s, or their contractor’s control. Any approval of an extension
should include conditions to ensure timely completion of the project in a manner that limits
impacts on surrounding property owners. Applicant filed a request for an extension with the City
Hearing Officer seeking an extension for the full 180 days possible under the code.
17. The Applicant filed a request for an extension for an additional 180 days and a
hearing was held on June 28, 2024.
18. The City Representatives presented uncontroverted evidence that there has been
progress towards the completion of the project. However, the City Representatives cautioned
against changing the design team at this point in the project. Further, the City encouraged the
submittal of modifications of the design. There was no objection from the City Representatives
to the Hearing Officer granting an extension.
19. Applicant, through testimony of the Owner’s Representative, provided
uncontroverted evidence that there had been considerable progress made on the completion of
the project. The Applicant indicated a desire to modify the plans in order to move away from
aluminum windows. The current window design is causing significant delay. He expressed a
desire to potentially change the design team because he does not have a working relationship
with the firm that originally submitted the plans. He noted that the owner is also concerned
about the cost of working with the previous design team to update the plans.
20. The Applicant indicated that there may be a need for an additional continuance. He
sought a year in order to finalize the project. However, the Applicant confirmed that the project
will be able to be completed if the windows are able to be adjusted.
21. Credibility determinations were made in favor of the Applicant and the City. The
Applicant presented credible evidence that the delays were due to circumstances partially beyond
their control resulting from find a source for the aluminum windows.
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-5- FINDINGS OF FACT AND STATEMENT OF DECISION
DECISION AND ORDER
22. The Applicant has presented sufficient evidence to establish that “the failure to meet
the time limit was caused primarily by circumstances beyond the property owner’s, applicant’s,
or their contractor’s control.” The Applicant could not have foreseen the significant delays
caused by material shortages. The owner, applicant, and/or contractor were not the cause of those
delays, nor could they have been avoided with reasonable diligence.
23. The Hearing Officer hereby grants an extension to 5:00 pm on Friday, December 6,
2024, in order to ensure the timely completion of the project.
24. Any person aggrieved by an administrative decision of a Hearing Officer may obtain
review of the administrative decision by filing a petition for review with the Orange County
Superior Court in accordance with the timelines and provisions as set forth in California
Government Code Section 53069.4. There may be other time limits which also affect the ability
to seek judicial review.
Dated: July 7, 2024 ____________________________
Jamaar M. Boyd-Weatherby
Hearing Examiner