HomeMy WebLinkAbout05-24-2023_Order After Hearing - 121 45th Street_X2018-28671
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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 121 45th Street 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: 10:30 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under building
permits issued for 121 45th Street (“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 10:30 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”). Also in attendance from the City were members of the Building Department,
Steve Lane, Principal Building Inspector and Jason Rudenick, Building Inspector II.
3. Tyler H. Parks, owner builder, appeared in support of the application for an extension of time.
Mr. Parks is referred to as the “Applicant.”
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00074948.1 2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
4. There were no other persons in attendance at the 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 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.”
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.
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00074948.1 3
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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).
13. Permit Nos. X2018-2867, XR2023-0414 were the subject of the Hearing (collectively, the
“Permit”). The Permit was set to expire under NBAC 105.3.3 on June 1, 2022.
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)).
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00074948.1 4
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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.
17. On April 7, 2023, Applicant filed a request for an extension with the City Hearing Officer
seeking an extension to November 30, 2023.
18. The City Representatives presented uncontroverted evidence that there has been somewhat
inconsistent progress, but progress nevertheless, towards completion of the project.
19. The Applicant, through testimony of the Project Manager and General Contractor, provided
uncontroverted evidence that the project was nearing completion and that the delays in the
project were the result of the COVID-19 pandemic and effects on labor and supplies.
DECISION AND ORDER
20. 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.” No one could have foreseen the significant delays caused by labor and
material shortages caused by the COVID-19 pandemic. The owner was not the cause of those
delays nor could they have been avoided with reasonable diligence.
21. The Hearing Officer imposes the following condition of approval on the grant of an extension:
a) By July 7, 2023 complete the sheer and obtain inspection by the City. Applicant to email
the Hearing Officer at sgraham@colehuber.com confirming sheer completed and inspection
completed by 5 p.m. on July 5, 2023 with copy to Chief Building Official.
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00074948.1 5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
b) By July 21, 2023 complete the vapor barrier and obtain inspection by the City. Applicant to
email the Hearing Officer at sgraham@colehuber.com confirming vapor barrier completed
and inspection completed by 5 p.m. on July 21, 2023 with copy to Chief Building Official.
c) By August 18, 2023 substantial completion the stucco and have City confirm completion.
Install windows and doors and remove plywood. Rough electrical/plumbing inspection and
approval to be completed. Applicant to email the Hearing Officer at
sgraham@colehuber.com confirming stucco, windows, doors completed and plywood
removed rough electrical/plumbing completed and inspected by 5 p.m. on August 18, 2023
with copy to Chief Building Official. Additionally, the construction toilet shall not be
visible from the right of way by August 18, to be verified by email and City inspection
(either by movement to interior or by camouflage).
22. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
23. The Permit is extended to November 28, 2023.
24. 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