HomeMy WebLinkAbout09-14-2023_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
October 4th, 2023
George Gemayel
3 Rocky Point Rd
Corona Del Mar, CA 92625
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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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
BEFORE THE
ADMINISTRATIVE HEARING OFFICER
FOR THE
CITY OF NEWPORT BEACH, CALIFORNIA
IN RE 3 Rocky Point Road 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: September 14, 2023 Time: 10:00 a.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. Steven Graham Pacifico (“Hearing Officer”), sitting as the Hearing Officer under
NBAC Section 105.3.4 heard this matter on September 14, 2023 at 10:00 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”). Also in attendance from the City was Principal Building Inspector Steven
Lane.
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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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
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
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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
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 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
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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
issuance of a subsequent building permit(s) for the same project.”
(emphasis added).
13. 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.
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 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.
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. Applicant filed a request for an extension with the City Hearing Officer seeking
an extension for the full 180 days possible under the code.
17. The City Representatives presented uncontroverted evidence that there has been consistent and
diligent progress made toward the completion of the project under the Applicant. The City
Representatives estimate that the project is seventy-five percent completed. There was no
objection from the City Representatives to the Hearing Officer granting an extension from the
City.
18. Applicant, through testimony of the Owner’s Representative, provided uncontroverted evidence
that the project was nearing completion and that the delays in the project were the result of the
inability to find workers to complete the construction on the project as a result of the COVID-
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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
19 pandemic and supply chain issues with materials. Through testimony of the Owner’s
Representative, it was indicated that in 2021, Applicant was diagnosed with cancer and, as a
result, was otherwise occupied.
19. Applicant, through testimony of the Owner’s Representative, also testified there were delays in
construction due to specific requirements from the City since the Subject Property is located on
a hill. Those specific requirements in connection with stabilization and grading had to be
fulfilled before construction was permitted. Additionally, the Owner’s Representative testified
that the project’s architectural plans had to be modified to address concerns from surrounding
neighbors.
20. Ms. Bas spoke at the Hearing and testified that the construction at the Subject Property has been
noisy, there has been a significant lack of parking due to the construction, and there has been an
increase in trash due to various workers on the Subject Property.
21. The Owner’s Representative testified that another home was being constructed on the same
street, which contributed to the parking issues.
22. The Applicant anticipates completion of the project within four to six months.
23. Applicant indicated that no stop order was received and was not aware that the City had issued
a stop order for the Subject Property in August 2023.
24. Credibility determinations were made in favor of the Applicant and the City. The Applicant
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 concerns of Ms. Bas regarding parking, trash, and noise levels in the residential
neighborhood.
DECISION AND ORDER
25. 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.” The Applicant could not have foreseen the significant delays caused by
labor and material shortages caused by the COVID-19 pandemic. The owner, applicant, and/or
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FINDINGS OF FACT AND STATEMENT OF DECISION AFTER HEARING
contractor were not the cause of those delays, nor could they have been avoided with reasonable
diligence.
26. The Hearing Officer conditionally granted an extension to January 5, 2024, in order to ensure
the timely completion of the project.
27. In response to the neighbors’ concerns, the Hearing Officer imposes the following condition 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.
28. Under NBAC 105.3.4 this decision is final and not appealable to any City body.
29. 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: October 4, 2023 /s/ Steven Graham Pacifico
Administrative Hearing Officer