HomeMy WebLinkAbout07-18-2024_Order After Hearing_703 Acacia AvenueFinance Department
CITY OF NEWPORT BEACH
100 Civic Center Drive
Newport Beach, California 92660
949 644-3141 PH | 949 644-3073 FAX newportbeachca.gov
July 24, 2024
William Ayoub Sr.
703 Acacia Ave
Corona Del Mar, CA 92625
Re: 703 Acacia Ave Three Year Construction Extension
Dear Appellant:
Attached please find the Hearing Officer’s findings regarding your appeal of administrative
citation.
If you would like to appeal the decision made by the Hearing Officer, you may contact the
Orange County Superior Court to obtain a review by filing a petition in accordance with the
timelines and provisions set forth in California Government Code Section 53069.4. To
contact, please call (657) 622-5800 or visit their offices at 700 W Civic Center Dr, Santa
Ana, CA 92701.
If you need additional information from the City, please call 949-644-3141.
Sincerely,
Jessica Kan Revenue Manager
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ALESHIRE & WYNDER, LLP PAUL J EARLY 3880 Lemon Street, Suite 520 Riverside, California 92501 Telephone: (951) 241-7338 Facsimile: (949) 223-1180 Administrative Hearing Officer BEFORE THE ADMINISTRATIVE HEARING OFFICER FOR THE CITY OF NEWPORT BEACH
IN RE 703 ACACIA AVENUE APPLICATION FOR PERMIT EXTENSION NBMC. SECTION 15.02.095
FINDINGS OF FACT AND STATEMENT OF DECISION OF THE ADMINISTRATIVE HEARING OFFICER Hearing Officer: Paul Early Date: July 18, 2024 Time: 8:00 a.m.
INTRODUCTION
1. This matter involves an extension of time to complete construction for work under a building
permit issued for 703 Acacia 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. Paul Early (“Hearing Officer”), sitting as the Hearing Officer under NBAC Section
105.3.4 heard this matter on July 18, 2024 at 8:00 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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3. Abeer Azzam, the Subject Property’s owner (hereafter “Applicant”) appeared in support of
the application for an extension of time.
4. There were no other witnessess or members of the public 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
9. 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
10. This matter is before the Hearing Officer consistent with Section 105.3.4 of the NBAC.
11. 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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12. 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.
13. 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.”
14. Permit No. X2020-1583 was issued by the City of Newport Beach on July 8, 2020
(“Permit”). The Permit was set to expire on July 7, 2023.
15. 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)).
16. The full, one year extension was granted by the Building Official on January 10, 2024. As a
result of the Building Official’s actions, the Permit was set to expire on July 7, 2024.
17. 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
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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.
18. The Applicant filed a request for an extension for an additional 180 days and a hearing was
held on July 18, 2024.
19. The City Representatives presented uncontroverted evidence that there has progress on the
permit but such process has been very slow and there have been limited calls for inspections. The
City representatives further testified that they are unaware of any nuisance activities, complaints,
noise, trash or otherwise resulting from the pending construction activities. There was no objection
from the City Representatives to the Hearing Officer granting an extension.
20. Applicant provided uncontroverted evidence that the project was delayed as a result of an
unlicensed contractor she had hired and who did not perform under their contract. Applicant
represented that the unlicensed initial contractor has been replaced as of March 4. 2024 with a
licensed contractor who is beginning to remediate the substandard work performed by the initial
contractor. Applicant further represented that they have sufficient funds to complete the construction
and estimates that the project may be completed within 6 months.
21. Credibility determinations were made in favor of the Applicant and the City. The Applicant
presented credible evidence that the delays were due to circumstances partially beyond their control
resulting from an unlicensed contractor. The Hearing Officer noted that the poorly perfroming
contractor has been replaced
DECISION AND ORDER
22. The Applicant has presented sufficient evidence to establish that “the failure to meet the time
limit was caused primarily by circumstances beyond the property owner’s, applicant’s, or their
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contractor’s control.” The Applicant could not have foreseen the significant delays caused by an
unlicensed contractor and the need to replace existing construction that was not performed in
accordance with building codes. The Applicant was not the cause of those delays, nor could they
have been avoided with reasonable diligence. Although the delays were within the control of
Applicant’s original contractor, this Hearing Officer finds that the person acting as a contractor was
not a licensed contractor and that the permits were pulled by Applicant as an owner/builder and not
be the contractor. Accordingly, this Hearing Officer finds that the actions of the original contractor
should not be imputed to the Owner.
29. The Hearing Officer hereby grants an extension to 5:00pm on January 4, 2025, in order to
ensure the timely completion of the project.
30. No additional conditions are imposed on the project at this time.
31. Under NBAC 105.3.4 this decision is the first extension available on Permit No. X2020-
1583 and not appealable to any City body.
32. 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 the ability to seek judicial review.
Dated: July 24, 2024
Paul Early Administrative Hearing Officer