HomeMy WebLinkAbout2b_Additional Materials Received1000 Wilshire Boulevard
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September 10, 2024
VIA E-MAIL ONLY
Khosrow (Saum) Nourmohammadi Chair, and Members
City of Newport Beach
Board of Building and Fire Appeals c/o Tonee Thai Chief Building Official 100 Civic Center Drive
Newport Beach, CA 92660 Email: tthai@newportbeachca.gov
Re: 1113 Kings Road: Appeal of Notices of Violation
Dear Chair Nourmohammadi and Members of the Board,
This office represents Gregory I. Reed (“Owner”), owner of 1113 Kings Road (“Property”)
in the City of Newport (“City”) in the above-referenced appeal (“Appeal”) scheduled for a hearing
before the Board of Building and Fire Appeal (“Board”) this afternoon.
The Appeal is directed to one or more “Notice[s] of Administrative Citation” concerning a purported violation of the City of Newport Beach Municipal Code (“NBMC”) related to a guardrail
fence topping a retaining wall on the west side-yard of the Property (“Notice”). The Notice asserts
that the guardrail fence “is not consistent” with building permit construction drawings (“Building
Plans”) for the west retaining wall, because it is constructed with wood as opposed to wrought iron.
As a preliminary note, the Staff Report for the Appeal incorrectly asserts that “appellant previously removed existing wrought iron railing on top of the retaining wall and, without applying
for a building permit, erected new wooden fencing on top of the retaining wall.” (Staff Report, p.
Building & Fire Board of Appeals - September 10, 2024
Item No. 3b - Additional Materials Received 1113 Kings Road Appeal (X2019-3305)
Khosrow (Saum) Nourmohammadi, Chair, and Members September 10, 2024 Page 2
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1.) That assertion is incorrect, as are the conclusions that follow from it. This is not a case where an applicant constructed an approved structure only to later flout the approval by replacing the improvement with an unpermitted structure. In fact, the current wooden railing is the only railing the Owner ever constructed on the retaining wall, and, contrary to the Staff Report’s analysis, the
wood railing was -- and is -- wholly consistent with the California Building Code (“CBC”) and the
NBMC. The Staff Report and its recommendations therefore proceed from a glaring, material error of fact and a mischaracterization of the matter before this Board. On that basis alone the Board should send this matter back to Staff for a proper case summary and recommendation.
The Staff Report also cites to the wrong legal standard, invoking a provision of the NBMC
that addresses height exceptions for front-yard retaining walls with grade-separations from adjoining sidewalks or curbs. (See, NBMC, § 20.30.040.) On this point, the only location where the NBMC expressly requires 40 percent “open” grillwork, wrought iron, latticework, spaced pickets or similar materials, is with specific regard to railings on walls located at the front yard setback with grade separations from the adjoining sidewalk or curb. (NBMC, § 20.30.040.A.C.1.)
It is a fundamental canon of statutory construction that the expression of one thing implies the
exclusion of others. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 424.) In this case, the Code’s identification of specific instances where open fencing is required necessarily implies that solid fencing is allowed everywhere else. Nor did we find any more general requirement for open fencing elements or materials that could be applicable to a side-yard within this neighborhood of
the City. On their face, the provisions of NBMC section 20.30.040 do not apply here; nor does Staff have authority to force interpretations of the NBMC in situations where the code provision has no facial applicability.
In fact, the only reference to wrought iron is a single note on one page in the Building Plans. (1113 Kings Road PC 2295-2019- Construction Drawings [herein defined as “Building
Plans,”] p. TS3.) That note features a reference to a 42-inch high railing of “wrought iron fence
with openings not to allow 4” sphere to pass through,” the wording of the note does not, perforce, mandate minimum openings in the fencing material, only openings that are not so large as to allow a four-inch ball to pass through. Nor does it expressly preclude use of other materials for the fence railing. In fact, the as-built condition complies with every applicable standard that we found, as
set forth in either the CBC or the NBMC, and otherwise substantially conforms to the approved
Building Plans.
Given the errors of fact and law in the Staff Report, a continuance is necessary so that the Board may be presented with an accurate summary of the case before it. A continuance is further warranted to allow the Owner to continue to work with the City and the neighbor to the west to
determine if there is a path toward an informal resolution of this matter.
Building & Fire Board of Appeals - September 10, 2024 Item No. 3b - Additional Materials Received 1113 Kings Road Appeal (X2019-3305)
Khosrow (Saum) Nourmohammadi, Chair, and Members September 10, 2024 Page 3
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If you have any questions about this letter, a representative of the Owner will be on hand at this afternoon’s hearing to answer them.
Very truly yours,
BUCHALTER
A Professional Corporation
Michael W. Shonafelt Shareholder
cc
Tonee Thai, Chief Building Official (TThai@newportbeachca.gov)
Aaron Harp, Esq., City Attorney (AHarp@newportbeachca.gov)
Yolanda Summerhill, Esq., City Attorney’s Office (YSummerhill@newportbeachca.gov) Joseph Meeks, Esq., City Attorney’s Office (JMeeks@newportbeachca.gov) Greg I. Reed (greg@goldenbearequities.com)
Building & Fire Board of Appeals - September 10, 2024 Item No. 3b - Additional Materials Received 1113 Kings Road Appeal (X2019-3305)