HomeMy WebLinkAbout01-18-2024_Order After Hearing_3 Rocky Point RoadFinance Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3141 PH | 949 644-3073 FAX newportbeachca.gov
January 26th, 2024
George Gemayel
3 Rocky Point Rd.
Corona Del Mar CA, 92625
Re: 3 – Year Construction Hearing, 3 Rocky Point Rd., X2018-3317
Dear Appellant:
Attached please find the Hearing Officer’s findings regarding your appeal of administrative
citation.
If you would like to appeal the decision made by the Hearing Officer, you may contact the
Orange County Superior Court to obtain a review by filing a petition in accordance with the
timelines and provisions set forth in California Government Code Section 53069.4. To
contact, please call (657) 622-5800 or visit their offices at 700 W Civic Center Dr, Santa
Ana, CA 92701.
If you need additional information from the City, please call 949-644-3141.
Sincerely,
Michael Gomez Deputy Finance Director
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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 3 Rocky Point Road 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: January 18, 2024 Time: 1:45 p.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under a building
permit issued for 3 Rocky Point Road (“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. Paul Early (“Hearing Officer”), sitting as the Hearing Officer under NBAC Section
105.3.4 heard this matter on January 18, 2024 at 1:45 p.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 Principal Building Inspector Steven Lane.
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3. Sosi Bardakjian, the Subject Property owner’s niece (“Owner’s Representative”), appeared
in support of the application for an extension of time. Collectively, the Owner’s Representative and
Owner, George Gemayel, are referred to as the “Applicant.”
4. A member of the public, Julie Bas (“Ms. Bas”), the property owner across the street from
the Subject Property, was also in attendance.
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 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.
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. Permit No. X2018-3317 was issued by the City of Newport Beach on August 21, 2019
(“Permit”). The Permit was set to expire on August 21, 2022.
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 via two actions, with the
first extension on February 24, 2022, and the second extension on May 26, 2022. As a result of the
Building Official’s actions, the Permit was set to expire on August 20, 2023.
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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. On September 14, 2023, a hearing was held before Hearing Officer Steven Graham Pacifico
with regard to the request for the first additional 180 day extension.
19. Hearing Officer Pacifico granted an extension from August 20, 2023 until January 5, 2024
with the following conditions:
a) Applicant and all contractors, agents, and employees working on the project shall not
violate the City’s noise ordinance.
b) Applicant and all contractors, agents, and employees working on the project shall not
violate the City’s parking ordinance.
c) The Subject Property must remain free of all trash, debris, and rubbish.
d) Applicant must comply with all lawful orders of the City’s Building Division.
20. The Applicant filed a second and final request for an extension for an additional 180 days
and a hearing was held on January 18, 2024.
21. The City Representatives presented uncontroverted evidence that there has been only one
new permit inspection since the grant of prior extension. However, the City Representatives concede
that additional progress may have continued to be performed for which no inspection would have
been necessary. There was no objection from the City Representatives to the Hearing Officer
granting an extension.
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22. Applicant, through testimony of the Owner’s Representative, provided uncontroverted
evidence that the project was nearing completion and that significant work has continued to occur
on the Subject Property. Owner represented that the most significant delay is being caused by delays
in receiving equipment to complete the Elevator on the Subject Property and that contractors are
standing by and ready to perform the installation immediately upon arrival of the equipment.
Additionally, through testimony of the Owner’s Representative, it was indicated that completion of
the pool and readiness for final inspection has been complicated by power concerns and working
with the local electric utility to bring in a temporary power pool for the pool equipment. Finally,
Applicant indicated the only remaining work to complete is the mailbox installation and some right
of way landscaping.
23. Ms. Bas spoke at the Hearing and testified that the noise, trash and parking issues over the
last few months have been reduced but expressed concerns over the long construction term at the
Subject Property and whether it would ever be completed.
24. The Owner’s Representative testified that another home was being constructed on the same
street, which contributed to the parking issues.
25. The Applicant indicated, without contradiction, that the project was nearly complete, that
the house was almost entirely built and just these last remaining details need to be addressed with
final inspections. The Applicant anticipates completion of the project within three to four months.
26. The Applicant indicated that there is no General Contractor on the project and that they have
been working independently with individual contractors to complete various work.
27. 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 material shortages due to the elevator installation and utility connections. The
Hearing Officer noted that many of the delays appear to have been logistical and that Applicant
would likely have benefited from the assistance of a General Contractor to manage the timeline and
multiple subcontractors and utilities to bring the project to completion more efficiently. The
concerns of Ms. Bas regarding parking, trash, and noise levels in the residential neighborhood were
noted.
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DECISION AND ORDER
28. 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 labor
and material shortages. The owner, applicant, and/or contractor were not the cause of those delays,
nor could they have been avoided with reasonable diligence.
29. The Hearing Officer hereby grants a final extension to 5:00pm on Tuesday, July 2, 2024,
in order to ensure the timely completion of the project.
30. In response to the neighbors’ concerns, the Hearing Officer imposes the following conditions
of approval on the grant of an extension:
a) Applicant and all contractors, agents, and employees working on the project shall not
violate the City’s noise ordinance.
b) Applicant and all contractors, agents, and employees working on the project shall not
violate the City’s parking ordinance.
c) The Subject Property must remain free of all trash, debris, and rubbish.
d) Applicant must comply with all lawful orders of the City’s Building Division.
31. Under NBAC 105.3.4 this decision is the second and final extension available on Permit No.
X2018-3317 and not appealable to any City body.
32. 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: January 25, 2024
Paul Early Administrative Hearing Officer