HomeMy WebLinkAbout05-24-2023_Order After Hearing - 3235 Ocean Blvd_X2018-04111
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00074948.1
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
BEFORE THE
ADMINISTRATIVE HEARING OFFICER
FOR THE
CITY OF NEWPORT BEACH, CALIFORNIA
IN RE 3235 Ocean Boulevard APPLICATION FOR PERMIT EXTENSION (NBMC 15.02.095)
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Steven Graham Pacifico Date: May 24, 2023 Time: 9:00 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under building
permits issued for 3235 Ocean Boulevard (“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. Steven Graham Pacifico (“Hearing Officer”), sitting as the Hearing Officer
under NBAC Section 105.3.4 heard this matter on May 24, 2023 at 9:00 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 (“City
Representative”).
3. Sadek el Sewedy (“Owner”) was not present at the hearing and was represented by Kareem
Abdelaal, Project Manager, Chris LeTourneau, Architect, and Scott Wallace, Structural
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00074948.1 2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
Engineer. Collectively, those in attendance, along with the Owner are referred to as the
“Applicant.”
4. There were multiple members of the public present in opposition to the extension.
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
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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00074948.1 3
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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.”
(emphasis added).
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00074948.1 4
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
13. Permit Nos. XR2023-0602, X2018-0411, X2022-0438; XR2023-0605 X2018-0413, X2022-
0442; XR2023-0606, X2018-2922; XR2023-0607, X2018-0415, X2022-0441 (collectively, the
Permit) were the subject of the Hearing.
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 full year extension was granted by the Building Official to June 1, 2023.
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 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. On April 5, 2023, 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 City Representatives presented uncontroverted evidence that there has been inconsistent
progress on the project with many of the original permits expiring due to lack of inspections.
18. The Applicant, through testimony of the Project Manager, provided uncontroverted evidence
that he was recently retained. The Project Manager alleged that the former contractor had
committed fraud.
19. The Applicant, through the Architect and Structural Engineer, provided uncontroverted
testimony that there were significant deficiencies to the structural engineering of the project, in
particular retaining walls. In the words of the Architect, the project needs to be tackled
essentially with “a new slate.”
20. It was apparent that unlike other requests for extensions, where work has progressed and
additional time is necessary for completion, this project has suffered from significant
deficiencies in the design stage that have rendered all previous work potentially unviable.
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00074948.1 5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
21. The public provided credible testimony that the project has caused significant impacts to
neighboring properties, including trespassing onto neighboring property by workers and storage
of trash and debris from other sites.
DECISION AND ORDER
22. The Applicant has failed to present sufficient evidence to establish that either “special
circumstances” or “the failure to meet the time limit was caused by circumstances beyond the
property owner’s, applicant’s, or their contractor’s control.” Indeed, the delays appear to be the
result of the previous contractors poor designs/engineering and allegedly fraudulent behavior.
This has been exacerbated by the Owner’s absence and lack of management of the project, a
significant cause of delay that could have been avoided with reasonable diligence.
23. Further consideration is given to the position of the project, which is essentially back in the
design stages as a result of inadequate structural engineering. This is not the typical case of a
project that needs some additional time to complete work in progress (as almost all such
extension cases are) but rather, the Applicant seeks additional time beyond the four years already
provided to take the project back to the drawing board and redesign. The application in fact asks
for an extension of 33 months into 2026. That is simply untenable.
24. As the Hearing Officer is unable to make the findings that either special circumstances exist or
that the failure was caused by circumstances beyond the owners, applicants, or their contractors
control, the request for extension is DENIED.
25. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
26. Any person aggrieved by an administrative decision of a Hearing Officer on an administrative
citation 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
your ability to seek judicial review.
Dated: May 24, 2023 /s/ Steven Graham Pacifico
Administrative Hearing Officer