The URL can be used to link to this page

Home My WebLink About2.0_STAFF REPORT 1113 Kings Road1113 Kings Road - Appeal of The Building Official’s Determination to Obtain a Building Permit to Replace Wrought Iron Guardrails with Wooden Fence on Top of Existing Retaining Wall September 10, 2024 Page 2 _-2 RECOMMENDATIONS: a) Conduct a public hearing; b) Staff recommends the Board uphold the Chief Building Official’s determination requiring Appellant apply for a building permit to erect a wooden fence on top of existing retaining wall in accordance with California Building Code Section 105.1 as adopted by NBMC 15.02.010. DISCUSSION: A permit application was submitted on October 18, 2019, under Plan Check Number 2295-2019 for a new single-family residence, garage, various accessory structures and site retaining walls. The approved project included installation of wrought iron guard railing on top of an existing retaining wall on the Property (See Attachment A, Excerpt of Plan Check Number 2295-2019 approved plans showing location of fence in question). The construction of the project was completed, including installation of the wrought iron guardrails, and related permits received final inspection on October 16, 2023. On or about November 22, 2023, after the construction was completed and permits final, the City received a complaint regarding unpermitted construction at the subject property. Code Enforcement staff investigated and found that the previously installed and approved wrought iron guardrail on top of an existing retaining wall located on the west side of property had been replaced with a wooden fence. No application for a building permit was filled with the City. The City issued a Notice of Violation (NOV) for the unpermitted work on December 7, 2023, and followed up on December 18, 2023, with a second NOV (See Attachment B). Subsequent communications between the City and Appellant to gain compliance led to the Building Official issuing a decision letter dated May 1, 2024, that a building permit is required for the replacement of the existing wrought iron guardrail with a wooden fence (See Attachment C). The Appellant rebutted the Chief Building Official’s determination, alleging that there is no violation of the NBMC or the California Building Code. Appellant further contended that the previously approved building plans for the wrought iron guardrail authorized replacement with the wooden fencing. Appellant’s position is included in the appeal application (submitted to the Board herewith). Chief Building Official’s Determination: Due to the height of the combined wooden fence and retaining wall, a building permit is required per California Building Code Section 105.1 prior to construction of a wooden fence on top of existing retaining wall (See Attachment D). CBC Section 105.1 states (emphasis added): Any owner or owner's authorized agent who intends to construct, enlarge, alter, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, 2 1113 Kings Road - Appeal of The Building Official’s Determination to Obtain a Building Permit to Replace Wrought Iron Guardrails with Wooden Fence on Top of Existing Retaining Wall September 10, 2024 Page 3 _-3 mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be performed, shall first make application to the building official and obtain the required permit. Additionally, the Chief Building Official, in his determination letter, explained that the wooden fence is not authorized by the prior approved plans, PC 2295-2019, which only authorized wrought iron railing, because California case law holds that the rights granted by a permit are limited to those specifically stated in the permit.0F 1 Furthermore, the determination letter explained that a guardrail is different than a fence. In particular, a guardrail is “constructed of open grillwork, wrought iron, latticework, pickets, or similar materials so that at least forty (40) percent of the fence is open.”1F 2 By contrast, a “fence” is a “solid structure that is a barrier and used as a boundary or means of protection, confinement, or concealment.”2F 3 Therefore, the wooden fence is not authorized by PC 2295-2019 because it is not a guardrail. Board Review: The Building Official’s determination regarding unpermitted construction under the NBMC and CBC Section 105.1 is appealable to this Board. In the event that this Board upholds the Building Official’s determination that the Appellant is required to file for a building permit, then the Appellant will be required to submit plans for review by the City’s Planning Division as part of the building permit application. If the City’s Planning Division determines that the wooden fence does not comply with the City’s zoning and development standards of Title 20, then the Appellant may pursue other options, including but not limited to, filing an application for a variance to be reviewed by the City’s Planning Commission at that time. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A – Plan Check 2295-2019 Approved Drawings Attachment B – Notices of Violation Attachment C – Building Official Determination Letter Attachment D – CBC Section 105.1 Excerpt Attachment E – Draft Decision Attachment F – Appellant’s Submitted Material 1 Russ Bldg. Partnership v City & County of San Francisco, 44 Cal. 3d 839, 853-854 (1988) (holding that permittees had no greater rights than those granted them under the permit and stating, “[t]o the extent plaintiffs relied on their own self-serving interpretation … such reliance must be considered unreasonable”); accord, Attard v. Board of Supervisors of Contra Costa County, 14 Cal. App. 5th 1066 (2017). 2 NBMC 20.30.040(A)(2), (C)(1), and (C)(3)(b). 3 NBMC 20.70.20(F). 3 Attachment A Plan Check 2295-2019 Approved Drawings 4 Attachment B Notices of Violation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ttachment C Building Official Determination Letter 14 15 16 17 Attachment D CBC Section 105.1 Excerpt 18 Attachment E Draft Decision 21 CITY OF NEWPORT BEACH COMMUNITY DEVELOPMENT DEPARTMENT 100 Civic Center Drive Newport Beach, California 92660 949 644-3200 newportbeachca.gov/communitydevelopment BUILDING AND FIRE BOARD OF APPEALS APPEAL OF CHIEF BUILDING OFFICIAL’S DETERMINATION RE 1113 KINGS ROAD DECISION The City of Newport Beach Board of Appeals (“Board”) heard the appeal of Greg Reed (“Appellant”) of the City’s Chief Building Official's (“Building Official”) determination regarding the unpermitted construction at 1113 Kings Road (“Property”) at a noticed public hearing conducted in the Newport Beach Civic Center, Corona del Mar Conference Room (100 Civic Center) on September 10, 2024, at 3:30 p.m. Appellant appealed the Building Official's determination that Appellant must first apply for a building permit before replacement of existing wrought iron guardrail with a wooden fence, pursuant to the current California Building Code. The Board reviewed the evidence submitted by the Appellant, City of Newport Beach staff, and the public, and heard testimony. The Board finds that: x The Property had permitted construction of a wrought iron guardrail on the west side of the Property located on top of a retaining wall; x The Appellant replaced the permitted wrought iron guardrail on the west side of Property with a wooden fence without first applying for a City building permit; and x The applicable California Building Code, Section 105.1, as adopted and amended by the City, is as follows: Any owner or owner's authorized agent who intends to construct, enlarge, alter, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be performed, shall first make application to the building official and obtain the required permit. Having fully considering the matter, the Board finds that California Building Code Section 105.1 requires application for a building permit for construction of the wooden fence on top of the existing retaining wall. Accordingly, the Board affirms the Building Official's determination requiring application for a building permit for the construction of the wooden fence on top the existing retaining wall on the west side of the Property. Vote: PARTICIPANTS Board of Appeals Members Present: 22 Appellant: Greg Reed City Staff: Tonee Thai, Deputy Community Development Director/Chief Building Official; Joseph Meeks, Deputy City Attorney; Jaime Murrillo, Deputy Community Development Director - Planning Other Participants: ____________________________ ______________________ Khosrow Nourmohammadi, Chair Date 23 Attachment F Appellant’s Submitted Materials 24 25 26 27 28 29 30 31