HomeMy WebLinkAbout05-25-2023_Order After Hearing - 3811 River Avenue_X2018-03691
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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 3811 River Avenue 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 25, 2023 Time: 11:30 a.m.
INTRODUCTION
1. This matter involves a second extension of time to complete construction for work under
building permits issued for 3811 River Avenue (“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 25, 2023 at 11:30 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 Building Inspectors Lane and
Rudenick.
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00074948.1 2
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
3. Jeff Barnett, Owner, and Michael DeClark, General Contractor, appeared in support of the
application for an extension of time. Collectively, the Owner and General Manager are referred
to as the “Applicant.”
4. There were no other persons in attendance at the Hearing. Two public comments were submitted
by email from Thomas Miller and Lori Morris.
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 No. X2018-0369 was issued by the City of Newport Beach on February 7, 2018. Permit
XR2023-0381 replaced expired permit X2018-0369 for interior remodel and reroof. Permit
XR2023-0379 replaced expired permit X2018-0734 which had been issued on March 14, 2018
to remove and place exterior sidings of entire house. Permit XR2023-0374 replaced expired
permit X2020-1786 issued on September 4, 2020 for additional scope to add stairs. Permit
XR2023-0375 replaced expired permit X2019-2388 issued on September 24, 2019 for additional
scope to add 400 sq. ft. roof deck. Permit XR2023-0377 replaced expired permit X2018-1919
issued on June 21, 2019 to infill 2nd floor Foyer area, enclosed existing balcony at rear (+238
sq. ft), and interior remodel. X2019-0033 was issued on January 3, 2019 and replaced by X2021-
2124 due to a change in contractor. Collectively, all original, expired, and replacement permits
are referred to as the “Permits”. The Permits were 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)).
15. The full year extension was granted by the Building Official via two actions with the first
extension on May 26, 2022, and second extension on February 13, 2023. As a result of the
Building Official’s actions, the Permits are set to expire on May 31, 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 6, 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.
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00074948.1 5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
17. The City Representatives presented uncontroverted evidence that there has been consistent and
diligent progress made towards completion of the project under the Applicant, despite the
expiration of the original permits due to a 180 day gap in inspections. The City Representatives
estimate that the project is essentially completed (98% or greater) with the last significant item
being utility hookups of water and sewer, which are waiting on City action by the Public Works
Department. There was no objection from the City Representatives to the Hearing Officer
granting an extension from the City.
18. The Applicant, through testimony of the Owner and General Contractor, provided
uncontroverted evidence that the project was nearing completion and that the delays in the
project were the result of a change in contractor as a result of the COVID-19 pandemic and
supply chain issues with materials. The Applicant anticipated completion of the project within
45-60 days. During the Applicant’s testimony the Hearing Officer reviewed “Google Street
View” images including historical images of the Property, which showed steady and reasonable
progress on the Project. The Applicants confirmed that there had been some challenges with
neighboring property owners over street parking and, during the earlier part of the pandemic,
COVID-19 related regulations. Applicants denied cutting into the street without a permit or
performing any unpermitted construction.
19. The two emails from members of the public identified above were read into the record at the
Hearing. The gravamen of the emails is that the project has gone on too long, that tradespersons
were parking in front of residence driveways, making noise, and that the Applicants had engaged
in unpermitted work, including a street cut.
20. Credibility determinations were made in favor of the Applicants and the City, which did not
support the finding of unpermitted work being done. Additionally, while it is uncontroverted
that the project has lasted several years, the Applicants presented credible evidence that the
delays were due to circumstances beyond their control resulting from labor and material
shortages due to the COVID-19 pandemic. The Hearing Officer noted the neighbors concerns
regarding parking in the residential neighborhood.
21. There was no testimony from the public at the hearing concerning the request for an extension.
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00074948.1 6
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
DECISION AND ORDER
22. 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 or the need to switch
contractors. The owner, applicant, and/or contractor were not the cause of those delays nor could
they have been avoided with reasonable diligence.
23. There was no evidence presented that indicated conditions needed to be imposed to ensure
timely completion of the project as the project is nearing completion. However, the Hearing
Officer reduced the total extension granted from the requested 180 days to 90 days in order to
ensure timely completion of the project.
24. In response to the neighbors’ concerns regarding parking, the Hearing Officer imposes the
following condition of approval on the grant of an extension:
a) The owner shall ensure that any person working at the project complies with all State and
local laws that regulate parking while the person is working at the project. For purposes of
this condition, a person will be presumed to be working at the project if a parking citation
is issued to the person within five hundred (500) feet of the property line of the Property
during the time the person is employed, contracted with, or otherwise engaged to perform
work at the project.
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 25, 2023 /s/ Steven Graham Pacifico
Administrative Hearing Officer