HomeMy WebLinkAbout01-26-2023_Order After Hearing - 112 Kings Place_X2018-33471
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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 112 KINGS PLACE APPLICATION FOR PERMIT EXTENSION (N.B.M.C. 15.02.095)
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Steven P. Graham Date: January 26, 2023 Time: 2:30 p.m.
INTRODUCTION
1. This matter involves a request for a second extension of time to complete construction for work
under building permits issued for 112 Kings Place (“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 Pacifico Graham (“Hearing Officer”), sitting as the
Hearing Officer under NBMC Section 15.02.95 heard this matter on January 26, 2023 at 2:30
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
NBMC Section 15.02.095 the Hearing Officer shall hear and decide whether this second
application for extension shall 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 for the City were Chris Sanchez, Principal Building
Inspector, and Chad Shelton, Building Inspector II, who did not provide testimony or argument.
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00074948.1 2 FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
3. Anthony Ferro (“Applicant”) appeared in support of the application for an extension of time.
Mr. Ferro is the contractor working on the project at the Subject Property and made this
application on behalf of Joseph Del Signore (“Owner”) owner of the Subject Property, who was
in attendance.
4. Marshall and Jayne Lally (the “Lallys”), owners and residents of 108 Kings Place were in
attendance at the hearing. The Lallys are the Owner’s next door neighbors.
5. Jim Mosher, a member of the public, was in attendance.
6. The following Findings of Fact, Conclusions of Law, and Decision and Order are based on the
evidence presented during the Hearing.
7. 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.
8. Pursuant to the Administrative Hearing Rules and Procedures of the City of Newport Beach, the
Hearing was digitally recorded.
9. At the beginning of the hearing, and without objection, the Hearing Officer took the 210 pages
of staff report from the City Representative and 5 pages of application from the Applicant into
evidence as the administrative record of the Hearing, attached hereto as Exhibit A and
incorporated within this Hearing Order.
ISSUES
8. Pursuant to Section 15.02.095 of the NBMC, 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 special circumstances warrant an extension of time or
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 15.02.095 of the NBMC.
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00074948.1 3 FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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.”
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 California
Building Code, codified at Newport Beach Municipal Code Section 15.02.095.
13. 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
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00074948.1 4 FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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. X2018-3347 was issued on April 1, 2019 and was set to expire under NBMC Section
15.02.095 on June 1, 2022. The Applicant sought and received an extension of Permit No.
X2018-3347 to December 31, 2022 from the Building Official.
15. On December 21, 2022, Applicant filed this Application for Three Year Construction Time
Limit Extension seeking a second extension of Permit No. X2018-3347 for “3 months.”
16. The Subject Property has been under construction in one form or another for almost 15 years.
The original permit (No. X2007-3157) for the project was issued on March 11, 2008. That
permit, and subsequent permits, have all expired. The Owner reported that the original
construction from 2008 was ended by a fire at the Subject Property. A second attempt was
reported by the Owner to have begun in 2014, but ended in 2016 or 2017 when it became
apparent that the project had not been properly engineered. The current attempt began with the
issuance of permits in April 2019 and has not concluded for over three years.
17. The Applicant testified that the project is very close to completion, with a few items still being
ordered (namely a lighting control and tiles). The work remaining includes, but is not limited to,
receiving and installing the lighting control, finalizing permit for the HVAC system, installation
of toilets, receiving and installing tile, installation of stairs (fabrication began months ago),
painting the “man cave” and awaiting final inspection of the pool.
18. The Applicant testified that he was brought onto the project in 2022 after the previous contractor
had been terminated by the Owner for failure to complete the project on time. The Applicant
indicated that while ordinarily a project should not have taken this long (estimating 14 months
as a more reasonable timeframe), the effects of the COVID-19 pandemic resulted in significant
labor and material shortages for the entire industry. The administrative record includes
correspondence from KMK Development Inc. outlining the challenges caused by the pandemic.
19. The Applicant indicated that four (4) months should be sufficient time to complete the project.
20. The neighbors of the adjoining property, the Lallys, were in attendance and expressed frustration
with the continued delays for the project, having essentially lived next to a construction site for
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00074948.1 5 FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
15 years. Ultimately the Lallys expressed the extension if it meant the project would be
completed.
21. The City Representative testified that if the extension is not granted, all work must cease, and
the City would be prohibited from issuing a replacement building permit under NBMC
15.02.095, which provides “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.” Essentially, unless successfully challenged in the superior court, the City
Representative stated that the Owner would be forced to demolish the building and start over.
22. Section 105.3.4, subsection 2 and 3 provide 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 for a second and third extension. The
second and third extension shall not exceed 180 days each and shall be based on relevant
evidence of whether (i) special circumstances warrant an extension of time; (ii) the failure to
meet the time limit was caused by circumstances beyond the property owner’s, applicant’s or
their contractor’s control; and (iii) any approval should contain conditions to ensure timely
completion of the project in a manner that limits impacts on surrounding property owners. The
Hearing Officer may grant or conditionally grant an extension if finds special circumstances
warrant an extension of time or the failure to meet the time limit was caused by circumstances
beyond the property owner’s, applicant’s or their contractor’s control.
DECISION AND ORDER
23. 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 control.” None of the listed individuals could have foreseen the significant delays
caused by labor and material shortages caused by the COVID-19 pandemic and the listed
individuals certainly were not the cause of those delays.
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00074948.1 6 FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
24. The Hearing Officer is authorized to provide an extension of up to 180 days, however, the
Applicant sought a “three month” extension. Based on the testimony at the hearing, three months
is a reasonable extension.
25. The second application for an extension is hereby granted to 5:00 p.m. on May 12, 2023 subject
to the following condition(s):
A. The Applicant shall submit to the Hearing Officer a progress report by 5:00 p.m. on
February 28, 2023, March 31, 2023, and April 28, 2023 detailing the progress made towards
completion of the project, including explanations for any delays. The report shall include an
estimated completion date for each remaining task and the overall project. The progress
report shall be reviewed and approved by the Owner prior to submission. The progress report
to the Hearing Officer may be submitted by email to sgraham@colehuber.com with a copy
to the Building Official. Failure to submit the progress reports by the dates and times
described above shall result in the immediate expiration of the building permit.
26. Under NBMC Section 15.02.095 this decision is final and not appealable to any City body. 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 your ability to seek judicial
review.
Dated: February 6, 2023
Administrative Hearing Officer