HomeMy WebLinkAbout03-27-25_Order After Hearing_1715 W Balboa Blvd1
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01088.0075/1065422.1
ALESHIRE & WYNDER, LLP PAUL J EARLY 3880 Lemon Street, Suite 520 Riverside, California 92501 Telephone: (951) 241-7338 Facsimile: (949) 223-1180 Administrative Hearing Officer BEFORE THE ADMINISTRATIVE HEARING OFFICER FOR THE CITY OF NEWPORT BEACH
IN RE 1715 W. BALBOA BLVD APPLICATION FOR PERMIT EXTENSION NBMC. SECTION 15.02.095
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Paul Early Date: March 27, 2025 Time: 8:00 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under a building
permit issued for 1715 W. Balboa Blvd. (“Subject Property”) in the City of Newport Beach under
Section 105.3.4 of the Newport Beach Administrative Code (“NBAC,” a locally amended version
of the California Building Code) as codified at Newport Beach Municipal Code (“NBMC”) Section
15.02.095. Paul Early (“Hearing Officer”), sitting as the Hearing Officer under NBAC Section
105.3.4 heard this matter on March 27, 2025 at 8:00 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, Steven
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Lane, Principal Building Inspector and Chad Shelton, Building Inspector II (“City
Representatives”).
3. Richard Selby (“Applicant”), appeared in support of the application for an extension of time.
4. Eight (8) neighbors appeared and provided additional testimony.
5. The following Findings of Fact, Conclusions of Law, and Decision and Order are based on
the evidence presented during the Hearing.
6. 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.
7. Pursuant to the Administrative Hearing Rules and Procedures of the City of Newport Beach,
the Hearing was digitally recorded.
8. The documents presented to the Hearing Officer during the hearing are attached hereto as
Exhibit A and form the administrative record of the hearing.
ISSUES
9. 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 Applicant’s control.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
10. This matter is before the Hearing Officer consistent with Section 105.3.4 of the NBAC.
11. 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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12. 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.
13. 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.”
14. This project first started with Permit X2020-1565 issued on March 2, 2021, with
subsequent permits that expired on March 02, 2024. Permits X2021-2338 and X2021-2339
increased the initial scope of work to include remodel work for the lower floor and framing
conditions due to field conditions that were issued on September 14, 2021. Permit XR2023-0347
increased the initial scope of work to create 90 square feet attic that was issued on April 3, 2023.
Permits XR2024-6993 and U2024-5294 are side yard improvements between the property and 1717
W. Balboa Blvd (U2024-5294). The first inspection for the building was on April 22, 2021, for
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Footings and Foundation inspection. The last inspection for the building was on January 19, 2024,
for Floor Framing and Sheathing inspection.
15. 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)).
16. The full, one year extension was granted by the Building Official. As a result of the Building
Official’s actions, the Permit expired on March 2, 2025.
17. 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 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.
18. The Applicant filed thereafter filed this first hearing officer request for an extension for an
additional 180 days.
19. The City Representatives presented uncontroverted evidence that there have been infrequent
and irregular inspections on the project and that the project is not substantially completed and that
current conditions on the property have necessitated the submittal of revised plans which have not
yet been approved. Furthermore, these expanded plans are likely to trigger additional requirements
and plan checks, including review by the Coastal Commission.
20. Applicant provided uncontroverted evidence that he had encountered delays that were
beyond his control during the first three years of construction leading up to the granting of the first
1 year extension by the Building Official. However, Applicant failed to demonstrate any reason for
the delay during the year subsequent to the that approval. In essence, it appears that very little has
been done in the past year which included only one inspection, the result of which was a mixture of
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approvals and the identification of construction that exceeded the approved plans. Applicant
believes the project can be completed by September 2, 2025, however, this seems unlikely to be
possible given that Applicant still does not have approved plans for the Project, as built.
21. Eight neighbors spoke consistently about the long delays of living with this construction site,
noise, debris, unsightly and deteriorating tarping, and construction vehicles blocking public alleys.
Neighbors also expressed concerns regarding the limited number of workers on the Property and the
lack of a professional contractor, subs or crews to finish the job.
22. Credibility determinations were made in favor of all parties who appeared to provide honest
testimony and credible testimony.
DECISION AND ORDER
23. The Applicant has not 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 has not retained a professional, licensed contractor to manage
or complete the job, even after 4 years of delays. Applicant did not provide any credible testimony
why he could not complete the work during the past year or why he exceeded the scope of his plans,
creating the need for new plan checks and reviews. Applicant could not provide any evidence why
he could not retain skilled subcontractors or a larger workforce to complete the Project. Applicant
could have foreseen the potential for significant delays after the first extension was granted by the
Building Official.
24. The Hearing Officer hereby denies further extension of the Permit.
25. 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: April 1, 2025
Paul Early Administrative Hearing Officer