HomeMy WebLinkAbout2022-8 - Amending Section 15.02.095 of the Newport Beach Municipal Code Authorizing an Extension of the Time Limit to Complete Construction for an Additional Year.ORDINANCE NO. 2022-8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
NEWPORT BEACH, CALIFORNIA, AMENDING SECTION
15.02.095 OF THE NEWPORT BEACH MUNICIPAL CODE
AUTHORIZING AN EXTENSION OF THE TIME LIMIT TO
COMPLETE CONSTRUCTION FOR AN ADDITIONAL
YEAR
WHEREAS, Section 200 of the City of Newport Beach's ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and all
rights, powers, and privileges, or procedures granted or prescribed by any law of the State
of California;
WHEREAS, the number of construction projects on private property in the City has
increased substantially over the past eight years, which has resulted in increased impacts to
residents from construction related noise, loss of on -street parking, and traffic;
WHEREAS, on April 23, 2019, the City Council adopted Ordinance No. 2019-8 setting
a three-year time limit from the issuance of the first or original building permit for one -unit or
two -unit dwellings to complete construction;
WHEREAS, on January 31, 2020, the United States Secretary of Health and Human
Services announced a nationwide public health emergency, in response to the COVID-19
outbreak;
WHEREAS, on March 4, 2020, Governor Gavin Newsom declared a State of
Emergency to make additional resources available, formalize emergency actions already
underway across multiple state agencies and departments, and help the state prepare for
broader spread of COVID-19;
WHEREAS, due to the impacts caused by COVID-19 disrupting the supply lines for
products and materials, and the health impacts to skilled workforce, some construction
projects may take longer than three years to complete; and
WHEREAS, it is in the interest of the residents of the City to place a reasonable time
limit on the duration of construction projects, so as to balance the needs of the owner of the
project with the health, safety and welfare of the neighbors.
Ordinance No. 2022-8
Page 2 of 7
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as follows:
Section 1: Section 105.3.4 of Section 15.02.095 of the Newport Beach Municipal
Code is hereby amended to read as follows.-
Section
ollows:
Section 105.3.4 Extension of time limit to complete construction.
The maximum allowable time to complete construction, as set forth in Section 105.3.3, may
be extended as follows:
1. Application for Extension to Building Official.
a) A property. owner, or authorized agent of the property owner, may request an extension
by filing with the Building Official, in writing and on a form provided by the Building Official,
an application for extension which sets forth: (i) the address of the project site; (ii) the name
of the applicant and property owner; (iii) when the first or original building permit was issued;
(iv) the length of time extension requested, which shall not be greater than three hundred
and sixty-five (365) calendar days; (v) how many previous extensions have been granted;
(vi) the basis for the requested extension; (vii) the new end project date if the application is
approved; (viii) a brief description of the improvements that are the subject of the application;
and (ix) any other information requested by the City.
b) Unless authorized by the Building Official in writing, an application for extension shall be
submitted no later than forty-five (45) calendar days prior to the expiration of the building
permit. The application for extension to the Building Official shall be accompanied the fee
set forth in the City's master fee schedule.
c) Within forty-five (45) days of a request for extension, the Building Official may ministerially
grant, conditionally grant or deny a request for extension for a period not to exceed three
hundred sixty-five (365) calendar days. The Building Official shall only grant an extension if
he/she determines adequate progress has been made towards completion of construction
and the request for extension is necessary for its completion. The decision of the Building
Official shall be final and non -appealable.
Ordinance No. 2022-8
Page 3 of 7
2. Application for Additional Extension(s).
a) If construction of the project has not been completed within the timeframe authorized by
the Building Official, a property owner, or authorized agent of the property owner, may
request an additional extension by filing with the City Clerk, in writing and on a form provided
by the City Clerk, an application for extension which sets forth: (i) the address of the project
site; (ii) the name of the applicant and property owner; (iii) when the first or original building
permit was issued; (iv) the length of time extension requested, which shall not be greater
than one hundred and eighty (180) calendar days; (v) how many previous extensions have
been granted; (vi) the basis for the requested extension; (vii) the new end project date if the
application is approved; (viii) a brief description of the improvements that are the subject of
the application; and (ix) any other information requested by the City.
b) Unless authorized by the Building Official in writing, an application for extension shall be
submitted no later than forty-five (45) calendar days prior to the expiration of the building
permit.
c) An application for extension filed with the City Clerk shall be accompanied by a hearing
and noticing fee identified in the City's master fee schedule.
3. Scheduling and Noticing.
a) For an application for an additional extension set forth in subsection 2), a Hearing Officer,
designated by the City Manager, shall hear and decide whether a second application for
extension, or third application for extension, shall be granted, conditionally granted, or
denied. The City Council shall hear and decide whether any additional application for
extension shall be granted, conditionally granted or denied. The applicable hearing body
shall be referred to herein as the "review authority."
b) For any application for extension to be heard by a Hearing Officer, the City Manager shall
appoint a Hearing Officer with the requisite qualifications and experience to consider the
application for extension. The Hearing Officer shall not be a City employee and the
employment, performance evaluation, compensation and benefits of the Hearing Officer, if
any, shall not be conditioned, either directly or indirectly, upon the outcome of any decision
by the Hearing Officer.
Ordinance No. 2022-8
Page 4 of 7
Within seven (7) calendar days of the City Clerk's receipt of an application for extension, the
City Manager or his/her designee shall notify the applicant of the name of the Hearing Officer
in accordance with Section 1.08.080. If the applicant wishes to challenge the designated
Hearing Officer, the applicant shall have seven (7) calendar days from the date of service of
the notice to submit to the City Manager a request, in writing, to disqualify the Hearing Officer,
which sets forth the basis for disqualification. A Hearing Officer may only be disqualified for:
(i) bias; (ii) prejudice; (iii) a conflict of interest; or (iv) a reason for which a judge may be
disqualified after a showing of good cause under the laws of the State of California.
The City Manager will review any request for disqualification and make a decision as to
whether a Hearing Officer shall be disqualified. The City Manager's decision shall be final. If
the City Manager disqualifies a Hearing Officer, the City Manager shall designate a new
Hearing Officer in accordance with the procedures in this subsection.
c) The applicant shall be notified of the time and place set for the hearing of the application,
in accordance with Section 1.08.080, at least ten (10) calendar days prior to the date of the
hearing. All hearings on an application to be heard by the review authority shall be noticed
in the following manner:
(i) Mailed to property owners within three hundred (300) feet of the project site that is the
subject of the application, at least ten (10) calendar days in advance of the hearing. The
notice shall contain: the address of the project site; the length of time extension requested;
the new end project date if the application is approved; the name of the applicant and
property owner; a brief description of the improvements; the date, time, and place of the
hearing; and a statement informing the person they have the ability to attend the hearing and
provide comments; and
(ii) Posted by the applicant at the project site, that is the subject of the application, at least
ten (10) calendar days before the scheduled hearing. The size, location and number of
sign(s) shall be posted as determined by the City Manager or his/her designee. The applicant
shall be responsible for maintaining the sign(s) in a satisfactory condition and shall remove
all sign(s) within twenty-four (24) hours following the conclusion of the hearing.
The failure of any person or entity to receive notice given in compliance with this
subsection shall not invalidate the actions of the applicable review authority.
4. Conduct of Hearing.
a) A hearing shall be held at the date, time, and place for which notice was given.
Ordinance No. 2022-8
Page 5 of 7
b) The review authority shall only consider evidence and testimony, presented by the
applicant or any other interested person, relevant to whether: (i) special circumstances
warrant an extension of time; (ii) the failure to meet the time limit was caused by
circumstances beyond the property owner's, applicant's or their contractor's control; and (iii)
any approval should contain conditions to ensure timely completion of the project in a manner
that limits impacts on surrounding property owners. Any documents submitted by City staff
shall constitute prima facie evidence of the respective facts contained in those documents.
c) The review authority may grant, or conditionally grant, up to a one hundred and eighty
(180) calendar day extension, per application for extension, if it finds special circumstances
warrant an extension of time or the failure to meet the time limit was caused by circumstances
beyond the property owner's, applicant's or their contractor's control. If the review authority
makes the findings to grant an extension, the review authority shall consider whether
conditions are necessary to ensure timely completion of the project in a manner that limits
impacts on surrounding property owners. The review authority shall deny the application if it
cannot make the findings set forth in this subsection.
d) A hearing may be continued without further notice, provided the Hearing Officer or chair
of the review authority announces the date, time, and place to which the hearing will be
continued before the adjournment or recess of the hearing.
e) The review authority may announce a tentative decision and defer its action on a final
decision until appropriate findings and/or conditions of approval have been prepared.
f) The review authority shall issue a written decision, setting forth its findings, and the
decision shall be final and effective on the date the decision is made, unless otherwise
specified by the review authority. The review authority shall provide the City Clerk with its
final decision within three (3) calendar days of the date of decision and the City Clerk shall
mail a copy of the final decision to the applicant within ten (10) calendar days of receipt of
the final decision.
5. Judicial Proceeding.
Nothing herein shall prohibit the Building Official from issuing a building permit or extending
a building permit if the extension is a term of an enforceable settlement agreement between
the City and the property owner or a term of a court order/judgment.
Ordinance No. 2022-8
Page 6 of 7
6. Judicial Review.
The decision of the review authority shall not be appealable to any City body. A person shall
not seek judicial review related to any application for extension until the person has first
exhausted all administrative procedures set forth in Section 15.02.095.
Section 2: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 3: If any section, subsection, sentence, clause or phrase of this ordinance
is for any reason held to be invalid or unconstitutional, such decision shall notaffect the
validity or constitutionality of the remaining portions of this ordinance. The City Council
hereby declares that it would have passed this ordinance and each section, subsection,
sentence, clause or phrase hereof, irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared invalid or unconstitutional.
Section 4: The City Council finds and determines that the introduction and adoption
of this ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Division 6, Chapter 3, because it has no potential for resulting in physical change to the
environment, directly or indirectly.
Section 5: Ordinance 2022-008, which amends Section 105.3.4 of Section
15.02.095 of the Newport Beach Municipal Code, shall remain in in effect through the end
of business on April 21, 2025, and as of that date/time is repealed. After April 21, 2025, the
unamended version of Section 105.3.4 of Section 15.02.095 of the Newport Beach
Municipal Code shall be in full force and effect. Except as expressly modified in this
ordinance, all other titles, chapters, sections, subsections, terms, sentences, clauses and
phrases set forth in the Newport Beach Municipal Code shall remain unchanged and shall
be in full force and effect.
Section 6: The Mayor shall sign and the City Clerk shall attest to the passage of
this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be
published pursuant to City Charter Section 414. This ordinance shall be effective thirty (30)
calendar days after its adoption.
Ordinance No. 2022-8
Page 7 of 7
This ordinance was introduced at a regular meeting of the City Council of the City of
Newport Beach held on the 8th day of March, 2022, and adopted on the 22nd day of March,
2022, by the following vote, to -wit:
AYES: Council Member Avery, Council Member Brenner Council Member Dixon
Council Member Duffield, Council Member O'Neill
NAYS: Mayor Muldoon, Mayor Pro Tem Blom
ABSENT:
KEVIN MULDPON, MAYOR
ATTEST:
LEILANI I. BROWN/. CITY CLERK
APPROVED AS TO FORM: cZ'
CITY ATTORNEY'S OFFICE
AARON C. HARP, CITY ATTORNEY
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance
No. 2022-8 was duly introduced on the 8th day of March, 2022, at a regular meeting, and adopted by the
City Council at a regular meeting duly held on the 22nd day of March, 2022, and that the same was so
passed and adopted by the following vote, to wit:
AYES: Council Member Brad Avery, Council Member Joy Brenner, Council Member Diane
Dixon, Council Member Duffy Duffield, Council Member Will O'Neill
NAYS: Mayor Kevin Muldoon, Mayor Pro Tem Noah Blom
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 23,d day of March, 2022.
010i, j
Leilani I. Brown, MMC
City Clerk
City of Newport Beach, California
CERTIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that
Ordinance No. 2022-7 has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in The Daily Pilot, a newspaper of general circulation
on the following dates:
Introduced Ordinance: March 12, 2022
Adopted Ordinance: March 26, 2022
In witness whereof, I have hereunto subscribed my name this 1161- day of April, 2022.
0 i
®� t Leila i I. Brown, MMC
' "``' City Clerk
n City of Newport Beach, California
--,P p o Fl