HomeMy WebLinkAbout06-01-2023_Order After Hearing - 6 Via CristalloFinance Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3141 PH | 949 644-3073 FAX newportbeachca.gov
June 2nd , 2023
Ronald & Deborah Hardaway
6 Via Cristallo
Newport Coast, CA 92657
Re: Three Year Construction Time Limit Extension Hearing Results
Dear Appellant:
Attached please find the Hearing Officer’s findings regarding your appeal of Three Year
Construction Time Limit Extension.
If you require further information, please call 949-644-3141.
Sincerely,
Evelyn Tseng Revenue Manager
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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 6 Via Cristallo 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: June 1, 2023 Time: 9:00 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under building
permits issued for 6 Via Cristallo (“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 June 1, 2023 at 9:00 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”). The City Representative was also accompanied by the Principal Building
Inspector and Building Inspector from his office.
3. Ronald and Deborah Hardaway owners of the Subject Property were present at the Hearing.
Collectively, the Hardaways are 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 though two public comments were
received into the record. The first comment was from Bart Greenberg and the second comment
was from Gennaro & Grazia Paolone. Both comments were from adjacent property owners to
the Subject Property.
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
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. The project at the Subject Property began with the issuance of Permit No. X2013-2927 in 2013.
Since that time, numerous permits have been issued and expired, based on changes in scope of
the project and/or changes in contractor. The current permits subject to the extension hearing
are permits XR2022-2015, XR2022-2016, and XR2022-2017 (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)).
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. On April 14, 2023, Applicant filed a request for an extension with the City
Hearing Officer seeking an extension to July 31, 2023.
17. The City Representatives presented uncontroverted evidence that there has been progress made
and the project is nearing completion.
18. There were two public comments. The first from adjacent property owner Bart Greenberg who
presented evidence that he has been complaining about negative effects of the project since at
least 2015, when he complained about workers on the project being careless with debris that has
fallen into Mr. Greenberg’s yard and that workers were improperly blocking fire lanes in front
of the Subject Property resulting in difficulties for refuse pickup. Mr. Greenberg did not object
to the extension, but requested conditions be imposed on the extension related to parking, upkeep
of the property, and reimbursement for damage done to his property.
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00074948.1 5
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
19. The second public comment was from Gennaro & Grazia Paolone, also adjacent property
owners. The Paolones object to further extension of the permit, and provided examples of issues
they take with the project, along with a youtube video link.
20. The Applicant, through testimony of Ronald and Deborah Hardaway provided uncontroverted
evidence that the project was nearing completion and that the delays in the project were the
result of several changes in contractors, changes in scope of the project, and labor/material
shortages as a result of the COVID-19 pandemic. The Applicant anticipated completion of the
project by July 31, 2023.
21. The Applicant testified that they have tradespeople parking on unimproved surfaces in the front
yard and a portable construction toilet in the front yard.
22. There was no in person testimony from the public at the hearing concerning the request for an
extension.
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.” Although it could fairly be said that the property owner perhaps needed to
exercise greater diligence over the selection and management of their contractors, especially in
the period from 2017 to present, sufficient evidence was presented that the Applicants had taken
steps to change contractors and hold poorly performing contractors accountable. Nevertheless,
the extreme length of time that this project has gone on weighed against an extension for any
significant length of time.
24. There was sufficient evidence presented to warrant the imposition of two conditions on the
approval of the extension to limit the impacts on surrounding property owners:
a) The owners, nor anyone under their employ or control, shall park any vehicle or store
personal property on an unimproved surface on the Subject Property that is visible from the
street, or park any vehicle on the firelane of the street, while the Permit is active.
b) The owners shall keep the Subject Property free of trash, rubbish, weeds, and other
unsightly debris as viewed from the street or adjacent property while the Permit is active.
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00074948.1 6
FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
c) The owners shall either camouflage, remove, or move the portable construction toilet to a
place that is not visible from the street or adjacent property.
25. The Permits are hereby extended to July 31, 2023.
26. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
27. 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: June 1, 2023 /s/ Steven Graham Pacifico
Administrative Hearing Officer