Chapter 10.64
CONSTRUCTION AND MAINTENANCE PROJECTS IN RESIDENTIAL DISTRICTS

Sections:

10.64.010    Purpose and Intent.

10.64.020    Definitions.

10.64.030    Construction and Maintenance Projects—Regulations.

10.64.040    Penalty.

10.64.050    Construction/Maintenance Project Permits.

10.64.060    Approval, Denial, Revocation of Construction/Maintenance Project Permits.

10.64.070    Appeal of Denial or Revocation of Construction/Maintenance Project Permit.

10.64.080    Amortization.

10.64.010 Purpose and Intent.

The City Council declares its purpose and intent in enacting this chapter is as follows:

A.    Large and prolonged construction and maintenance projects conducted within any portion of required setback areas in residential districts cause the following:

1.    A reduction in the value of property;

2.    An obstruction to the comfortable enjoyment of property adjacent to the construction or maintenance project;

3.    Adverse impacts on the aesthetic quality of property, giving the appearance of blighted conditions and a deteriorated environment; and

4.    A detriment to the public health, comfort, safety and general welfare, including, but not limited to, a dangerous attraction for children, impeded ingress and egress during emergencies, the potential for fire, an invitation to theft and other criminal conduct, and the peace and quiet of the City and its inhabitants.

B.    The necessity in the public interest for the provisions and prohibitions contained and enacted herein is declared as a matter of legislative determination and public policy. It is further declared that the provisions and prohibitions contained and enacted herein are in pursuance of and for the purpose of securing and promoting the public health, comfort, convenience, visual aesthetics, safety, general welfare and property values and the peace and quiet of the City and its inhabitants. (Ord. 2009-27 § 1 (part), 2009)

10.64.020 Definitions.

As used in this chapter:

“Abandonment” means any period of inactivity such that the construction or maintenance project will not be completed within the time frame set forth in the construction/maintenance project permit or any evidence which objectively demonstrates that the construction or maintenance project is not progressing at a sufficient pace to complete the project within the time frame set forth in the construction/maintenance project permit.

“Construction or maintenance project” means a structure, equipment, vehicle, or vessel that is being built, made, erected, remodeled, repaired, renovated, restored or improved that is neither permanently affixed nor intended to be permanently affixed to the land, foundation or structure at the subject location. “Construction and maintenance project” excludes fencing and screening erected in accordance with Chapter 15.60. “Construction and maintenance project” excludes those activities requiring permits pursuant to Title 15.

“Not fully completed” means that additional work, materials, or any action remains to be done in order to properly complete the construction or maintenance project as described in a construction/maintenance project permit issued pursuant to this chapter.

“Required setback area” means an area within a lot that is established by Title 20 for the purpose of governing the location of structures on a lot.

“Residential zoning district” means a zoning district identified in Title 20 of this Code. (Ord. 2013-11 § 36, 2013; Ord. 2009-27 § 1 (part), 2009)

10.64.030 Construction and Maintenance Projects—Regulations.

A.    Except when expressly allowed by a City-issued construction/maintenance project permit, no person shall maintain, permit or allow to exist in any portion of a required setback area in a residential district a construction or maintenance project that is not fully completed which is visible from any public right-of-way and that: (1) occupies more than one hundred twenty (120) square feet of area of the property’s lot area; or (2) has a height of more than twenty-four (24) feet.

B.    Upon completion or abandonment of a construction or maintenance project, it shall be removed from the lot within fifteen (15) calendar days.

C.    Nothing in this chapter shall prevent the enforcement of any other provision of the Newport Beach Municipal Code. In the event of any conflict between this chapter and another provision in this Code, the provision establishing a more stringent restriction shall control. (Ord. 2009-27 § 1 (part), 2009)

10.64.040 Penalty.

A.    Any violation of this chapter is subject to those remedies provided for in Chapters 1.04 and 1.05 in addition to any other remedies allowed by State and Federal law.

B.    Any violation of this chapter is hereby declared to be a public nuisance. (Ord. 2009-27 § 1 (part), 2009)

10.64.050 Construction/Maintenance Project Permits.

A.    Prior to the commencement of any construction or maintenance project in any portion of a lot in a residential district, which construction or maintenance project will be visible from any public right-of-way and: (1) will occupy more than one hundred twenty (120) square feet of area of the property’s lot area; or (2) will have a height of more than twenty-four (24) feet, the property owner, tenant or occupier of the property upon which the construction or maintenance project will be located shall apply for a construction/maintenance project permit. The application for the construction/maintenance project permit shall specify the precise nature, location, scope of work, and estimated completion date for the construction or maintenance project.

B.    No property owner, tenant, occupier of property, contractor, subcontractor, or other person or entity shall commence a construction or maintenance project subject to this chapter until a valid construction/maintenance project permit for the construction or maintenance project has been issued by the City.

C.    At no time shall more than one permit be in effect for any one lot.

D.    Property owners may apply for a permit not sooner than six months after the expiration date of any prior construction/maintenance project permit regardless of whether the project enumerated in the earlier construction/maintenance project permit was completed prior to the expiration date.

E.    No construction/maintenance project permit shall be issued for a period in excess of six months. A permit may not be extended beyond the initial six-month period unless the Community Development Director, or his or her designee, finds both that: (1) due to circumstances beyond the control of the construction/maintenance project permittee, the construction or maintenance project could not be fully completed within the time permitted by the initial construction/maintenance project permit; and (2) extension of the construction/maintenance project permit will not adversely affect the public views or the public health, safety or welfare. The Community Development Director, or his or her designee, may limit the term of the construction/maintenance project permit to a period of less than six months upon a determination of any of the following:

1.    That the full six-month period is unnecessary given the anticipated scope of the construction or maintenance project;

2.    That any period of time in excess of that prescribed by the Community Development Director, or his or her designee, would adversely affect the public views, or the public health, safety or welfare; or

3.    That similar construction or maintenance projects previously approved by the Community Development Director, or his or her designee, were completed in a period of time less than the six-month maximum. (Ord. 2013-11 § 37, 2013; Ord. 2009-27 § 1 (part), 2009)

10.64.060 Approval, Denial, Revocation of Construction/Maintenance Project Permits.

A.    The Planning Director or his designee shall be responsible for the review and approval, denial or revocation of construction/maintenance project permits pursuant to this chapter.

B.    No construction/maintenance project permit shall be issued for any construction or maintenance project where:

1.    The activity to be conducted under the construction/maintenance project permit violates any provision of the Newport Beach Municipal Code, State or Federal law;

2.    The Planning Director, or his designee, determines that the activity described in the permit would adversely affect the public views, or the public health, safety or welfare.

C.    The Planning Director, or his designee, may deny or revoke construction/maintenance project permit, or the application for the same, if he determines any of the following:

1.    Continued activity under the construction/maintenance project permit will violate Federal, State or local law;

2.    Activity under the construction/maintenance project permit constitutes a violation of any other provision of this Code;

3.    Abandonment of the construction or maintenance project has occurred;

4.    There has been any material deviation from the precise nature, location, scope of work or estimated date for completion as described on the construction/maintenance project permit application during the tenure of the construction/maintenance project permit; or

5.    The permittee has made any misrepresentation regarding the precise nature, location, scope of work or estimated date of completion on the construction/maintenance project permit application.

D.    The procedure for revocation of a construction/maintenance project permit shall require that the Planning Director or his designee conduct an investigation of the facts surrounding the alleged violation of any portion of this chapter and notify the permittee in writing of his intent to revoke any construction/maintenance project permit issued pursuant to this chapter. The notice of intent to revoke shall become effective, and the construction/maintenance project permit shall be revoked, fifteen (15) days after the date of the notice of intent to revoke unless the permittee elects an administrative hearing as set forth in this chapter. (Ord. 2009-27 § 1 (part), 2009)

10.64.070 Appeal of Denial or Revocation of Construction/Maintenance Project Permit.

A.    Any person whose application is denied or who receives notice of intent to revoke a construction/maintenance project permit may appeal that decision by requesting a hearing in writing to the City Clerk, including payment of any applicable fee(s), within fifteen (15) days from the date of denial or date of the notice of intent to revoke the permit. Failure to timely appeal the denial or intent to revoke a permit by the Planning Director, or his designee, shall render that decision final.

B.    The Newport Beach City Manager shall designate the Hearing Officer for the construction/maintenance project permit denial or construction/maintenance project permit revocation appeal hearing. The Hearing Officer shall not be a Newport Beach City employee. The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the result of the hearing as determined by the Hearing Officer.

C.    No hearing to contest denial of a construction/maintenance project permit application or revocation of a construction/maintenance project permit before a Hearing Officer shall be held unless and until a written request for hearing has been timely submitted to the City Clerk.

D.    A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is received by the City Clerk in accordance with the provisions of this chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing.

E.    The Hearing Officer shall only consider evidence that is relevant to whether the Planning Director or his designee has properly denied or notified the permittee of their intent to revoke the construction/maintenance project permit pursuant to this chapter.

F.    The written notice from the Planning Director or his designee denying or intending to revoke a construction/maintenance project permit shall constitute prima facie evidence of the respective facts contained in those documents supporting the basis for denial of the construction/maintenance project permit application or intended revocation of the construction/maintenance project permit.

G.    At least ten (10) days prior to the hearing, the appellant shall be provided with copies of any documents submitted or relied upon by the Planning Director or his designee in his determination to deny the construction/maintenance project permit application or revoke the permit. No other discovery is permitted. Formal rules of evidence shall not apply.

H.    The permit applicant or permittee contesting the denial or revocation of a construction/maintenance project permit shall be given the opportunity to testify and present witnesses and evidence in support of issuance or nonrevocation of the construction/maintenance project permit.

I.    The failure of any person requesting an appeal to appear at the administrative hearing shall constitute a failure to exhaust their administrative remedies and render the decision of the Planning Director or his designee final.

J.    The Hearing Officer may continue the hearing and request additional information from either the Planning Director or his designee or the appellant, or both, prior to issuing a written decision.

K.    Any person aggrieved by an administrative decision of a Hearing Officer at a hearing under this chapter may obtain review of the administrative decision by filing a petition for review with the Orange County Superior Court—Harbor Judicial District in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. (Ord. 2009-27 § 1 (part), 2009)

10.64.080 Amortization.

Any construction or maintenance project otherwise subject to this chapter but that is commenced prior to the enactment of the ordinance codified in this chapter shall not be exempted from the construction/maintenance project permit requirement of this chapter. However, any construction or maintenance project which was commenced prior to the enactment of the ordinance codified in this chapter shall be exempt from enforcement for a period of six months following the effective date of the ordinance codified in this chapter. (Ord. 2009-27 § 1 (part), 2009)