HomeMy WebLinkAbout07-26-2023_Order After Hearing - 313 Fullerton Avenue1
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4875-0660-8243.2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
BEFORE THE
ADMINISTRATIVE HEARING OFFICER
FOR THE
CITY OF NEWPORT BEACH, CALIFORNIA
IN RE PERMIT NO. X2019-0148 (HARDEN)
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Michael Philip Reiter Date: July 26, 2023 Time: 1:30 p.m.
INTRODUCTION
1. This matter involves the application of the property owners of 313 Fullerton Avenue to extend
the three-year construction time limit on permit No. X2019-0148 issued to Guy Harden for
additions and remodeling 313 Fullerton, owned by Guy Harden pursuant to the Newport
Beach Municipal Code (“NBMC”) under Section 105.3.4 of the Newport Beach
Administrative Code. Administrative Hearing Officer Michael Philp Reiter (“Hearing
Officer”), sitting as the Hearing Officer under NBAC Section 105.3.4 heard this matter on July
26, 2023, at 3:00 p.m. (the “Hearing”).
2. . 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.
3. Newport Beach 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”).
4. Applicant Terry Harden, owner of the Subject Property was present at the Hearing.
Adjacent Property Owner James F. Carlson, AIA was present and provided a letter included in the
packet and considered in this matter.
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4875-0660-8243.2 2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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 form the administrative
record of the hearing including the staff report and written documents submitted by the public and
the Applicant.
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 property owner’s,
applicant’s or their contractor’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. 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
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4875-0660-8243.2 3
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
2022 Edition of the California Building Code as published by the International Code Council. The
City of Newport Beach adopted certain additions, amendments, and deletions to the 2022
California Building Code, pursuant to its authority under California Health and Safety Code
Section 17958.5.
11. One such addition is the addition of Sections 105.3.2, 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.”
12. The project at the Subject Property began with the issuance of Permit No. X2019-0148. On
February 5, 2019. Since that time, the chief building official granted an extension for a three-year
construction time limit from April 22, 2022, to June 1, 2023. The Hearing officer notes that
according to the section cited above, it would have extended to June 1, 2023 per the terms of the
ordinance.
13. 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
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4875-0660-8243.2 4
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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.
14. 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.
15. On May 9, 2023, Applicant filed a request for an extension with the City seeking an
extension of six to eight months.
16. The City Representatives presented uncontroverted evidence that there has been progress
made and the project is nearing completion.
17. Neighbor James F. Carlson, a neighbor and architect said he would be opposed to a six-month
extension, but not opposed to a three-month extension. He detailed the issues with the ongoing
project on him and other neighbors.
18. The Applicant, through testimony of Terry Harden, AIA, provided uncontroverted evidence
that the project was nearing completion and that the delays in the project were the result of several
issues with contractors, a requirement to add separate utilities, and labor/material shortages
because of the COVID-19 pandemic, bettering the project with solar and a new roof, and increased
costs. The Applicant anticipated completion of the project within three months of the hearing and
provided photos showing that the applicant was close. Further, Ms. Harden provided photographs
showing that the project was substantially complete.
DECISION AND ORDER
19. The Applicant has presented sufficient evidence to establish that “the failure to meet the time
limit was caused by circumstances beyond the property owner’s, applicant’s, or their contractor’s
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4875-0660-8243.2 5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
control.” Sufficient evidence was presented that the Applicants had taken steps to meet the
challenges of the times.
20. Neither staff nor the neighbor made a showing of adding additional conditions. Therefore, the
Hearing Officer finds this project exempt from CEQA pursuant to Section 15301 of the
Guidelines.
21. The Permit is extended 120 days to December 9, 2023.
22. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
23. 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: August 11, 2023
Administrative Hearing Officer