Reeves v. City of Newport Beach CA4/3 ( 2023 )

Filed 3/7/23 Reeves v. City of Newport Beach CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
KYLE REEVES,
Plaintiff and Appellant, G060740
v. (Super. Ct. No. 30-2020-01176858)
CITY OF NEWPORT BEACH, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Theodore
R. Howard, Judge. Affirmed.
J.M. O’Connor Law Group and Joseph M. O’Connor for Plaintiff and
Appellant.
Aleshire & Wynder, Tiffany J. Israel and Dong-Youl Dennis La for
Defendant and Respondent.
The approved plans for Kyle Reeves’s home in Newport Beach (the City)
called for a third floor loggia without windows or doors. Reeves installed windows and a
sliding door to keep out the rain. The City’s building official determined the loggia must
remain open to comply with the City’s building codes and planning and zoning codes.
Reeves appealed to the City’s Building and Fire Board of Appeals (the Board), which
upheld the building official’s decision.
Reeves then filed a petition for a writ of administrative mandamus in the
trial court, which denied the petition. We affirm and conclude:
1. The City staff’s failure to provide certain documents from Reeves to the
Board was not prejudicial.
2. The Board was neither provided with nor based its decision on an
improper theory.
3. The Board did not act outside its authority.
4. Substantial evidence supports the Board’s decision.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In June 2016, Reeves filed a planning permit application with the City to
demolish an existing single family dwelling and construct a new three-story single family
residence on the site. The plans for the new construction included a roofed deck area or
loggia on the third floor. On October 13, 2017, the City’s building division issued a
construction permit.
In December 2018, Reeves installed glass windows and a sliding glass door
on the loggia. The windows and door were not part of the original approved plans.
On July 1, 2020, the City initially approved a final inspection for issuance
of a Certificate of Occupancy, but on the same day learned Reeves had added an “illegal
enclosure” to the loggia “by adding two windows and a sliding glass door.” The
installation of the windows and door affected the building’s gross floor area limits and
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therefore required new submissions to meet planning and zoning requirements. The
City’s building inspector therefore ordered the electricity and gas meters to be “pulled,”
preventing occupancy.
On August 4, 2020, the City’s chief building official, Samir Ghosn,
inspected the property after Reeves removed the windows and the glass from the sliding
door, but left the sliding door track in place. After the inspection, the City required
Reeves to remove the sliding door track and add drainage to the loggia area.
Alternatively, the City advised Reeves he could request a variance from the planning
department. Reeves never submitted revised plans or an application for a variance.
Ghosn advised Reeves in a letter dated September 17, 2020, that enclosing
the loggia with windows and a sliding door was “contrary to the approved plans for the
project,” and a certificate of occupancy would not be issued until the sliding glass door
track was removed and a water drainage system implemented. Ghosn’s letter also
advised Reeves a temporary certificate of occupancy would be issued but would expire
and would not be renewed if Reeves failed to “promptly take steps to address the water
drainage issue.”
On September 30, 2020, Reeves submitted an appeal to the Board.
Specifically, Reeves advised the Board he was appealing from the “letter from Samir
Ghosn, dated September 17, 2020 [that] ‘loggia must remain open to comply with local
zoning and building codes’ and ‘water drainage must be addressed.’” (Some
capitalization omitted.) The City’s staff recommended the Board uphold Ghosn’s
determination. After a hearing before the Board on November 17, 2020, the Board did
so.
The Board’s decision reads in relevant part as follows: “The Building
Official’s determination is that drainage is required for the Property’s third floor loggia
by the California Residential Building Code and that the loggia’s sliding door track was
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contrary to the approved plans, and accordingly [Reeves] was required to install a method
or system of drainage and remove the sliding door track.
“The Board reviewed the evidence submitted by [Reeves], City of Newport
Beach staff, and the public, and heard testimony, including public comments that the
Coastal Development Permit dated May 2017, clearly indicates that the loggia openings
would remain open and that the structure as built does not comply with the Coastal
Commission approval.
“Having fully considering the matter, the Board finds that the window
schedule and door schedule for the approved plans listed the window and entry openings
to be cased openings, that the plans did not show glazing for the windows and installation
of a door for the entry, and that the plans showed the loggia to be an exterior space.
Accordingly, the Board affirms the Building Official’s determination requiring [Reeves]
to provide adequate drainage method or devices to the loggia that is exposed to weather
as required by the California Residential Building Code and to remove the sliding door
track.”
On December 31, 2020, Reeves filed a petition in the trial court for
administrative writ of mandate under Code of Civil Procedure section 1094.5. The trial
court denied the petition, and entered judgment in favor of the City. Reeves’s notice of
appeal was filed prematurely. We exercise our discretion to treat the notice of appeal as
having been filed immediately after the entry of judgment. (Cal. Rules of Court, rules
8.104(d) & 8.308(c).)
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DISCUSSION
I.
EVEN IF REEVES’S SUPPLEMENTAL EVIDENCE WAS NOT PROPERLY SUBMITTED TO THE
BOARD, THERE IS NO PREJUDICE
Reeves argues he was denied due process because not all of his documents
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were provided to the Board. Reeves asked the trial court to remand to the Board to
reconsider the matter. The trial court denied that request, but “considered all of the
documents which [Reeves] indicated were part of the record, but which he was concerned
did not make it into the record, including the expert report from Mr. Daleo.”
Reeves now asks this court to order the matter remanded to the Board for
the same reason. Remand to the Board by the trial court is permissible when relevant
evidence was available but was not provided to the administrative agency. (Code Civ.
Proc., § 1094.5, subd. (e).)
The City contends Reeves has not proven the documents in question were
not before the Board. The administrative record contains a communication from the
City’s staff advising Reeves’s counsel those documents “will be given to the Board prior
to the meeting.” However, they are not part of the certified administrative record. It is,
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therefore, a fair inference they were not before the Board at the hearing.
Assuming the documents in question were not before the Board at the
hearing, Reeves nevertheless suffered no prejudice. (See Cal. Const., art. VI, § 13; Soule
1
The documents in question are (1) a revised copy of Reeves’s legal brief to the Board,
(2) the recommendation to the Board of Reeves’s expert witness, Chuck Daleo, and
(3) Daleo’s curriculum vitae.
2
The City also contends Reeves should have sought to augment the administrative
record in the trial court. That argument assumes the documents in question were before
the Board but were inadvertently omitted when the administrative record was produced.
As we understand Reeves’s argument, the problem is the documents were never before
the Board, although they should have been and Reeves was promised they would be.
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v. General Motors Corp. (1994) 8 Cal.4th 548, 574 [judgment may not be reversed unless
error caused miscarriage of justice].) As to Daleo’s written recommendation and resume,
he was permitted to address the Board and provided the Board with the same
recommendation included in his written materials. In the report Daleo said: “It is my
expert opinion that the subject room can be enclosed with glazed openings. It is my
recommendation that the Board agree with my findings and approve the enclosed room
and order the Building Official to issue a Certificate of Occupancy.” At the hearing he
stated: “What we need to get beyond this is can he have it enclosed space and my
recommendation is by all means, absolutely, let him have his enclosed space and then
deal with the other issues afterwards. That’s my recommendation to the Board of
Appeals. I am done.” Reeves could not have been prejudiced by the lack of the written
recommendation before the Board because the same recommendation was made verbally
to the Board. Reeves makes no argument the omission of Daleo’s resume prejudiced him
in any way.
As to the revised legal brief, we have compared the original legal brief
which is included in the administrative record and the modified brief, which is not.
Nothing added to the modified brief would have affected the Board’s review.
Additionally, nothing removed from the original brief was prejudicial to Reeves. The
major substantive change between the briefs was the reference to city codes in the
original, and to state and model codes in the modified brief.
We conclude Reeves was not prejudiced by the failure to provide those
documents to the Board, and remand to the Board is not called for.
II.
THE BOARD DID NOT RELY ON AN IMPROPER LEGAL THEORY
Reeves’s appeal to the Board was filed pursuant to section 15.80.030 of the
Newport Beach Municipal Code: “An application for appeal of orders, decisions or
determinations made by the Building Official or the Fire Marshal shall be based on a
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claim that the true intent of either the building code or fire code or their related rules, as
adopted by the City, have been incorrectly interpreted, do not apply, or an alternate
equally good or better form of construction or method of protection or safety exists. The
Building and Fire Board of Appeals shall have no authority to waive the requirements of
the City’s adopted building and fire codes or their related rules.” (Newport Beach Mun.
Code, tit. 15, ch. 15.80, § 15.80.030.)
Reeves appealed from the “letter from Samir Ghosn, dated September 17,
2020 ‘Loggia must remain open to comply with local zoning and building codes’ and
‘water drainage must be addressed.’” The appeal proposed as an alternative: “To install
glazing . . . of the exterior walls in the 3rd Floor Enclosed Loggia To prevent blowing
rain/water intrusion.”
At the hearing before the Board, City Attorney Jeremy Jung stated: “I just
want to frame the issues before the Board and that is the building official’s determination
was that drainage is required. The Board has the opportunity to either affirm it or reverse
it or somehow modify it, but that would be the decision, either uphold it, say drainage is
required and it’s up to [Reeves] and the – the designer to figure out how they want to
comply with that or to say drainage isn’t required, but one thing the Board can’t do is say
that the glazing or some other, kind of, windows or doors can be installed. That would be
one option that would not be available.”
When a Board member asked, “what exactly we are or aren’t approving,”
Jung replied, “It’s the decision by [the] building official that drainage is required for this
third floor space. So, the Board can either uphold that saying drainage is required and
then [Reeves] would figure out how best they want to comply with that or the Board can
decide no, drainage isn’t required, but then the option of allowing [Reeves] to go ahead
and install glazing and other things would not be an available option. If [Reeves] were to
go ahead and do that, then, as Mr. Murillo indicated, that would be – that would pose
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other issues with other parts of the code and then that would have to be taken up later
on.”
The chairperson of the Board stated: “I think the question came up
concerning the Board establishing the reasoning for . . . Alternate Methods. We cannot
do that. That is up to the purview of the building official and I don’t think this Board has
the ability to issue anything like that. The – from the looks of things the way I see it
anyway, you would have to submit plans to the City requesting plan check for the
adjustments that you’ve made, including making the space meet other aspects to the code,
from a heating, ventilation, fire exiting, etcetera, etcetera standpoint and have the plans
reviewed by the City and – and take that approach. I don’t see any other direction from
that.”
“‘As a general matter, courts will be deferential to government agency
interpretations of their own regulations, particularly when the interpretation involves
matters within the agency’s expertise and does not plainly conflict with a statutory
mandate.’ [Citation.]” (In re Cabrera (2012) 55 Cal.4th 683, 690.) In the minute order,
the trial court deferred to the City’s interpretation of its own code and found Reeves “has
not met his burden to establish that the City failed to proceed within a manner required by
law.”
Reeves contends the Board had the authority to determine glazing (i.e.,
adding windows to the loggia) would fix the problem. Even if Reeves were correct, this
would only fix the drainage problem. It would not fix the other identified problem—the
loggia must remain open in order to comply with zoning and building codes. The Board
concluded it could not select an alternate method of compliance with building codes that
would necessarily violate planning and zoning regulations. This interpretation of the
Board’s authority under section 15.80.030 of the City’s municipal code is reasonable.
We defer to the City’s interpretation of its own regulations.
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We conclude the Board was neither provided with nor did it base its
decision on an improper legal theory.
III.
THE BOARD DID NOT ACT OUTSIDE ITS AUTHORITY
Reeves contends the Board acted outside its authority by mixing planning
and zoning questions with building department questions.
Before the Board hearing, the City made clear that building code
requirements and planning and zoning requirements are different issues handled by
different City boards and commissions. At the hearing, Reeves’s counsel conceded the
Board “can only decide building code issues.”
Reeves claims the Board nevertheless “made the hearing about ‘Planning
and Zoning.’” He claims a representative of the city planning department in attendance
“had no authority to be present.” That representative offered to address any planning and
zoning issues, and stated “if the windows and the glazing are allowed to remain enclosed,
I would run into an issue with compliance, (indiscernible) zoning code that would require
variance from the planning commission to allow that additional space.” Because the
solution Reeves proposed was enclosing the space by adding windows, it was appropriate
for the City’s planning department representative to be present.
The Board does not have the authority to take action regarding a planning
or zoning issue. This does not mean it must be blind to the planning and zoning
ordinances of the City. During the Board hearing, Ghosn stated: “[Reeves’s counsel]
had indicated that we cannot mention planning and what have you and I think just to
clarify this is that I think the intent is the Board is not going to rule on any planning issue.
However, that said, I think Mr. Reeves is co-mingling the requirements . . . of planning
and building to justify his building code analysis as done by his consultant.”
The City’s municipal code provides: “At an appeal hearing, the Building
and Fire Board of Appeals shall consider only the same application, plans and project-
9
related materials that were the subject of the original order, decision, or determination
unless a majority of the Building and Fire Board of Appeals decides new information
shall be allowed.” (Newport Beach Mun. Code, tit. 15, ch. 15.80, § 15.80.060(c).)
Reeves’s proposed alternate plan would have required a variance from the zoning
department and a change in the approved plans. Under the Newport Beach Municipal
Code, the Board did not have authority to approve Reeves’s proposed alternative.
IV.
THE BOARD’S DECISION IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Code of Civil Procedure section 1094.5 authorizes the trial court to review
administrative actions by writ of mandate to determine “whether there was any
prejudicial abuse of discretion.” (Code Civ. Proc., § 1094.5, subd. (b).) Because the
administrative action here did not involve a fundamental, vested right, the trial court
determined whether the administrative findings were “supported by substantial evidence
in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)
“‘“[T]he appellate court’s function is identical to that of the trial court. It
reviews the administrative record to determine whether the agency’s findings were
supported by substantial evidence, resolving all conflicts in the evidence and drawing all
inferences in support of them.”’” (County of Fresno v. Fresno Deputy Sheriff’s Assn.
3
(2020) 51 Cal.App.5th 282, 288.)
In this case, Ghosn determined (1) drainage was required for the third floor
loggia, and (2) the sliding door track on the loggia must be removed. In reviewing
Ghosn’s determination, the Board found the approved plans showed the loggia to be an
exterior space with cased openings without glazing for windows and without the
3
Reeves contends the standard of review on appeal in this court is de novo because the
interpretation of a statute is at issue. In none of the cases cited by Reeves was the court
considering an appeal from an order on a petition for an administrative writ, and in none
was the court considering a municipality’s analysis of its own local regulations.
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installation of a sliding door. Based on these findings, the Board affirmed Ghosn’s
decision to require Reeves to provide adequate drainage for the loggia and to remove the
sliding door track. As explained post, substantial evidence supports the Board’s findings.
The California Coastal Commission approved a development permit for
plans including a “third story roof deck.” The plans as approved by the City called for a
non-glazed cased opening for the loggia and cased openings for the loggia windows. The
approved plans included the following: “Add note on Elevation Plans: ‘Loggia shall
remain open.’” Reeves acknowledged he “understood the ‘Approved’ plans do not show
glass” when “pleading with [the City] to grant occupancy.”
At the hearing before the Board, Ghosn testified that at the time the plans
were approved “the designer or architect . . . specifically understood the requirement for
drainage and he put one outside and we were told, I think, based on, you know, staff that
the area was to drain through here by floating this area, meaning if you put, like, a
(indiscernible) finish or whatever finish you put in, you allow it to float and then, you
know, it would drip off the edge and would go into this little drain and overflow. [¶]
Granted, the plans are not perfectly addressing that specific issue, but—and again, you
know, I cannot speak for what at the time the consulting group that helped us with the
plan check was thinking, but that’s where we are.”
The interior areas of the loggia were finished for exterior use, meaning
design features such as the flooring and the wall finish were designed to withstand the
elements. In Ghosn’s July 27, 2020 e-mail to Reeves, Ghosn noted the code requires “all
surfaces subject to weather events to be sloped and have [a] drain and an overflow device
to ensure against ponding.” Specifically, the California Residential Code provides:
“Unless roofs are sloped to drain over roof edges, roof drains shall be installed at each
low point of the roof.” (Cal. Res. Code, tit. 24, part 2.5, § R903.4.) Section R905.9.1
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requires a slope of not less than two percent for drainage of built up roofs. (Cal. Res.
4
Code, tit. 24, part 2.5, § R905.9.1.)
If the loggia were to be enclosed by windows and a sliding door, it would
turn the space into living space, and would exceed the amount of square feet permissible
for the lot, as well as violating third floor setback requirements, pursuant to municipal
planning and zoning regulations. (See, e.g., Newport Beach Mun. Code, tit. 20,
§§ 20.18.030, 20.30.110, 20.48.180, 20.70.020.) Reeves was advised that enclosing the
loggia violated local building codes and planning and zoning regulations and would
require a variance from the City.
An inspection by the City dated September 23, 2020, noted the following
corrections were required: “1. Remove threshold from deck. Acts as a dam. [¶]
2. Covered portion of deck does not drain.”
Reeves requested a temporary certificate of occupancy “[t]o allow adequate
time to resolve the issue of blowing rain/water intrusion in ‘loggia’ (3rd floor covered
patio/porch).” Reeves was advised that in order to receive the certificate of occupancy,
he would be required to “provide a permit within ? days to correct the drainage issue at
the 3rd floor exterior loggia area.”
In its recommendation to the Board, the City’s staff cited the foregoing
evidence and concluded: “Enclosing the Loggia conflicts with the approved plans for the
project, that clearly and expressly state the Loggia is to remain open. The Loggia must
remain open to comply with local Zoning and Building codes.”
The City’s staff further concluded: “In the development of the Loggia
space, it is clear that Mr. Reeves’ intention was to enclose the Loggia [as] demonstrated
by the installation of window and sliding glass door and installing a mini-split system for
4
The California Residential Code has been adopted by the City. (Newport Beach Mun.
Code, § 15.05.010.)
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heating and cooling to condition the space. None of these features were part of the
approved plans. Building Inspector Bill Tuman issued the correction to remove the
mini-split system and minimum of five-foot line connecting the system on July 10, 2020,
and he returned to verify compliance with his corrections on July 15, 2020.” (Italics
added.)
The Board’s decision was supported by substantial evidence. Therefore,
we affirm the trial court’s judgment.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
MOTOIKE, J.
WE CONCUR:
MOORE, ACTING P. J.
DELANEY, J.
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