HomeMy WebLinkAbout03 - Amending Title 15 of the Municipal Code Setting Time Limits to Complete ConstructionPORT CITY OF
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City Council Staff Report
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April 9, 2019
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Seimone Jurjis, Community Development Director - 949-644-3232,
sjurjis@newportbeachca.gov
PREPARED BY: Samir Ghosn, Deputy Community Development Director/Chief
Building Official, sghosn newportbeachca.gov
PHONE: 949-644-3277
TITLE: Introduction of an Ordinance Amending Title 15 of the Newport Beach
Municipal Code Setting Time Limits to Complete Construction
ABSTRACT:
On March 12, 2019, the City Council heard a presentation by staff on limiting the time for
construction projects. The City Council continued the item and directed staff to revise the
draft ordinance to limit the time for construction to a maximum of three years with
extensions heard by a Hearing Officer and further extensions heard by the City Council.
Staff has made the changes to the attached draft ordinance for City Council's
consideration.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or indirectly;
and
b) Introduce Ordinance No. 2019-8, An Ordinance of the City Council of the City of
Newport Beach, California, Adding Section 15.02.095 to the Newport Beach Municipal
Code, Setting Time Limits to Complete Construction, and pass to a second reading on
April 23, 2019.
FUNDING REQUIREMENTS:
There is no direct fiscal impact related to the adoption of the ordinance.
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Introduction of Ordinance Amending Title 15 of the Newport Beach Municipal Code
Setting Time Limits to Complete Construction
April 9, 2019
Page 2
DISCUSSION:
At the March 12, 2019 City Council meeting the City Council discussed staff's
recommendation to establish a five-year time limit to complete a permitted construction
project. The City Council voted to continue the item and requested staff return with
changes to the draft ordinance. The changes include a three-year maximum time limit on
building permits, with a request for extension of time to be reviewed by a Hearing Officer
at a publicly noticed meeting. Extensions of time shall be limited to a maximum of two
180 -day extensions with any more extensions requiring City Council consideration. The
draft ordinance includes the following:
Hearing Officer Review
If the construction project is not completed in the initial three -years then an extension of
time may be requested. The request will be heard by a Hearing Officer appointed by the
City Manager. The Hearing Officer may grant, conditionally grant or deny extensions of
time limited to two 180 -day extensions.
City Council Review
If the project has still not been completed within the two 180 -day extensions granted by
the Hearing Officer, then the applicant may file for an extension with the City Council.
The City Council may grant, conditionally grant or deny extensions of time.
Public Notice
All hearings for extensions of time shall be at a publicly noticed meeting, allowing for the
property owner and the public to provide input on the request for extension. The meeting
will be noticed to properties within 300 feet of the project site at least 10 calendar days
prior to the hearing date.
Findings Granting the Extension
The Hearing Officer or City Council shall only consider evidence and testimony relevant
to whether special circumstances warrant an extension of time or whether the failure to
meet the time limit was caused by circumstances beyond the property owner's control. If
findings are made to grant the extension, then consideration shall also be given to limit
the impacts to the surrounding property owners.
Enforcement
If the proposed ordinance is adopted and a construction project takes more time than
allowed by the Hearing Officer or City Council, then the project will be considered a public
nuisance and an abatement process outlined in the municipal code will be initiated. Once
the abatement process is exhausted with no resolution or completion of construction, the
City has the right to use any legal remedies to ensure compliance and completion of
construction.
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Introduction of Ordinance Amending Title 15 of the Newport Beach Municipal Code
Setting Time Limits to Complete Construction
April 9, 2019
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action 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, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly. The
adoption of the amendment does not authorize new development or change the density
or intensity of any potential future development.
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).
ATTACHMENT:
Attachment A — Ordinance No. 2019-8
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Attachment A
City Council Ordinance No. 2019- 8 , Setting Time Limits to Complete Construction
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ORDINANCE NO. 2019-8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
NEWPORT BEACH, CALIFORNIA, ADDING SECTION
15.02.095 TO THE NEWPORT BEACH MUNICIPAL CODE,
SETTING TIME LIMITS TO COMPLETE CONSTRUCTION
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 five years, which has resulted in increased impacts
to residents from construction related noise, loss of on -street parking, and traffic; 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.
NOW, THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
Section 1: The chapter titles and heading for Newport Beach Municipal Code
Chapter 15.02 are hereby amended to read as follows:
Chapter 15.02
ADMINISTRATIVE CODE*
Sections:
15.02.010
Adoption of the Administrative Code.
15.02.020
Amendment to Section 101.1.
15.02.030
Amendment to Section 101.4.3.
15.02.040
Amendment to Section 101.4.4.
15.02.050
Amendment to Section 102.6.
15.02.060
Added to Section 102.7.
15.02.070
Amendment to Section 103.1.
15.02.080
Amendment to Section 105.2.
15.02.090
Amendment to Section 105.3.2.
15.02.095
Addition of Section 105.3.3, 105.3.4 and 105.3.5.
15.02.100
Amendment to Section 105.5.
15.02.110
Amendment to Section 109.4.
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Ordinance No. 2019-8
Page 2 of 7
Prior ordinance history: Ords. 90-8, 92-15, 93-19, 95-38, 97-7, 97-31, 99-14, 2001-22, 2004-2, 2005-
5, 2006-11, 2007-19, 2010-23, 2011-5, 2013-24 and 2016-17.
Section 2: Section 15.02.095 is hereby added to Chapter 15.02 of Title 15 of
the Newport Beach Municipal Code to read as follows:
15.02.095 Addition of Section 105.3.3, 105.3.4 and 105.3.5.
Section 105.3.3 is added to read as follows:
Section 105.3.3 Time limit on permitted construction.
Unless an extension is granted in accordance with Section 105.3.4, 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.
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.
Section 105.3.4 is added to read as follows:
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:
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Ordinance No. 2019-8
Page 3 of 7
1. Application for Extension.
a) A property owner, or authorized agent of the property owner, may request an
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, if any; (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 shall be accompanied by the filing fee identified in
the City's master fee schedule.
2. Scheduling and Noticing
a) A Hearing Officer, designated by the City Manager, shall hear and decide
whether an initial application for extension, or second 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.
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.
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Ordinance No. 2019-8
Page 4of7
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.
3. Conduct of Hearing
a) A hearing shall be held at the date, time, and place for which notice was given.
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Ordinance No. 2019-8
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.
4. 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.
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Ordinance No. 2019-8
Page 6of7
5. 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 105.3.5 is added to read as follows:
Section 105.3.5 Correlation with Codes.
Sections 105.3.3 or 105.3.4 limit the total time to complete construction and shall
not relieve any person or entity from complying with any other applicable provision
of federal, state or local law including, but not limited to, construction related laws
adopted by the City.
Section 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
Section 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect 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 5: 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 6: 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.
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Ordinance No. 2019-8
Page 7 of 7
Section 7: 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.
This ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the 9th day of April, 2019, and adopted on the 23rd day of April,
2019, by the following vote, to -wit:
AYES:
NAYS:
ABSENT:
DIANE B. DIXON, MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
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AARON C. HARP, CITY ATTORNEY
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