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SR-7-B (14) 7-,~ CA:RMM:tor2jhpadv city Council Meeting 9-22-92 SED ') -. ~~<'~ ;. :::... ~ h"'......... Santa Monica, California STAFF REPORT TO: Mayor and city Council FROM: City Attorney SUBJECT: Statement of Official Action for TPC- 183, VTTM 50638, 2110 Fourth Street At ~ts August 11, 1992 meeting, the City Council removed the Statement of Official Action for TPC-183, VTTM 50683, 2110 Fourth street (hereinafter "STOAlI), from the consent calendar, and asked that the item be returned to the City council after objections from the applicant were considered. A letter regarding the applicant's concerns is attached as Exhibit lIA.II A partial transcrlpt of the City Council meeting at which the matter was heard is attached as Exhibit fiB. II The transcript includes the statements of Mr. Ellis, and the city Council discussion of the item. The original recommended STOA is attached as Exhibit "C." A revised STOA with the changes requested by the applicant is attached as Exhibit "D." The main difference between the STOAs is that in the City's version, in addition to findings regarding subtenancy, a finding of misrepresentation or fraud is made with respect to the manner in which Mr. ElllS was given the intent forms to execute. In the applicant's version, this finding is eliminated, and the denial rests solely on the subtenancy issue. 7,,8 Sc_? } .' ~Ci9') . ;:...- -" hJ L RECOMMENDATION It is respectfully recommended that the city Council adopt that version of the STOA which reflects its action on this matter. PREPARED BY; Joseph Lawrence, Acting city Attorney Mary H. Strobel, Deputy city Attorney ~ (ffI~ 0/ PAUL C. DESANTIS PA-JL C DESA"J't!S~ SALLYA"'''' L MDLi..O" 3002 SANTA MONICA BOULEVARD, SUITE C SANTA MONICA, CALIFORNIA 90404.2506 TELEPHONE (310) 453 1888 TELECOPIER {3101 8:29 1476 OF COUNSEL "~LSC .....E~a=-I= CF !\IE..... TOFl.... B!Lp::I """LLEV "'01'1'''''",; ....0 MES"el<. s.o."'TA MONICA C'-UFOA"" August 24, 1992 Mr. Robert M Myers, City Attorney Ms. Mary Strobel, Deputy Cny Attorney 1685 Mam Street, Room 310 Santa Monica, Cahfornia 90401-3295 Re TPC-183. 2110 Fourth Street. SOA Dear ?\1r !\-1yers and \1s Strobel: \\ e are concerned that the proposed fmdings for this matter do not reflect the mtent OT dJTecrlOTI of the CouncIl, nor do we belIeve that the public record can justify certain finding of fact Dunng the lengthy Public Heanng process for the above referenced project, a great de~] of testImony \\'as submItted At the tIme of votmg, each of the Councilmembers specIfIcally srated the grounds for his or her vote. We have reviewed the tapes of the City CouncIl heanngs on thls matter. The personal statements of each of the Councilmembers cited varIOUS subtenancy Issues as grounds for denial. The pubhc record confirms that not one of the Councilrnembers stated that he or she based hIS or her vote on grounds of fraud or mIsrepresentation In fact, not one Council member referred to either fraud or mIsrepresentatlOn in the dehberations Rather than engaging In an extended disagreement on this issue. we propose a compromIse mcorporating the follo\\'mg revisions. 1 We agree 10 the removal of the last clause of finding number 2 on page 1 ("and In that at least one signature was obtained by fraud or misrepresentation.") and 'iubstltuting "and that at least one signature was submitted after the application was deemed complete and was slgned by a-tenant who had not personally occupied her unit for six months pnor to the date the tenant signed tne intent forms." - 2 \Ve agree that the denial was with prejudice and would consent to the add! non of the phrase "and is denied with prejudice for failing to meet TORCA requirements " (lIne three of fmding number 2). EXHIBIT 1\ 2. We agree that the denial was with prejudIce and would consent to the addl Hon of the phrase "and is denied with prejudice for failing to meet TORCA requirements ,. (lme three of fmding number 2). 3. Smularly, we agree to removmg finding number 9 on page 3 and revising fmdmg number 7 on page 2 by removmg the clauses that state "that when he was given the Apphcation and Intent to Purchase forms to sig~ he was told it was a formality so that Anderson could get necessary paper work; and was told that it was necessary to sign the documents to receive the paperwork" (bottom of page 2 and top of page 3) and substituting the finding that "Mr. Ellis testIfIed that he did not consider himself to be an authorized tenant of the O\.\ller and was subletting the unit directly from Mr. Anderson at the time that he signed the mtent forms " \Ve believe that \\-ltb the proposed reVIsions. the findings would more accurately reflect the deliberations and actual decision of the CounCIl. Please telephone me, or Eileen Hecht of my offIce. to discuss this matter. Thank you for your prompt attention to thIS matter. Very truly yours, /~~~)~. Paul C. DeSantis Attachment cc Ranme Schwartz PARTIAL TRANSCRIPT OF CITY OF SANTA MONICA CITY COUNCIL MEETING MINUTES JUNE 30, 1992 STATE OF CALlFORNl~ ... COUNT'f OF LOS ANG!LfJI CITY OF SANTA MON~ .. ~ I.~h-.~r~; ~.. /-- ~:;. ~~" \(,'---;,-tjtY~erlol-' C.tyof S'3,ta MonIca. dohereby certl,y th_at the above III · , ~ -......... - _ .........2 ~ t.....------ true and correct copy of ~ . - 1-'- / . I . i _.- . , r J f-'; -; ~J _.. -~"_., r - .'"t.....-'- r ~C,-,-C.!:..- ("th. .l__'--v'--,._t,... -' . ,"-' j - ')--.., .,-- ~!ined 1"1.1 sealed tt,IS date: "7\.." \ r ~.~ ~. ; _~ 'L~- i I/.. t.-;"L\ ~_ . _ 1 n ~ --- ~ \. ~ _ -:- /' aty Clerk EXHIBIT B j ~ ./ .- '3 TESTIMONY OF JOHN ELLIS ELLIS: GENSER: ELLIS: GENSER: ELLIS: GENStR: ELLIS: GENSER: ELLIS: Good evening. I'm John Ellis and I li~e at 2110 4th Street, Apt. #16, 90405 and I have been a resident and community member of the Rio View Apartments for 18 months. Eric Anderson sub-let the apartment to me and moved to Portland, Oregon. Before that he sub-let to several other people. Also, the letter from Larry Nichols he called me down this morning on my way to school, I'm a Sixth Grade teacher for L.A. Unified, and he yelled at me across the pool and said ask me if it was true if I had liVed there and when did he call me about helping him move the boxes. It wasn't 18 months ago it was about 6 months ago. So he felt pressure from the people to sign this letter and he then left me a message when I got home from work saYing that he called Homestead and he called the City Council to say that to let me Speak for mYself. And he felt bad that he had signed it and spoke for me. But it is true that I've lived there for 18 months and as a teacher I teach my students to participate in the community and We have seen how the lack of partiCipation in the community and when the peOPle feel powerless What happens, with the recent riots. So I feel it is important. That's why I'm here. If there are no other questions, question for Mr. Ellis. I just understand this, that you SUb-let Anderson. I have want from a to Mr. Right. And Mr. Anderson is the person who has the actual contract w1th the bUilding owners. No. I actually, I think they have me dO"n as Signing. No, I understand that. I lllean the contract to rent the premises. Yes. He has the rental agreement with the owners. Right. Can I say one thing about Signing the agreement. They asked me... When they gave me theSe papers I didn't kno" "hat they "'ere, and Michele the lRanag<>r said it's ju.st a formality, you just need to sign so Eric can get the paperwork. So I thought I "'as signing something for Eric at that tillle. r didn't kno" that it Was to do "ith a conversion and that it WOUld... and that it involved "ith "hat "e are no", facing, GENSER: Thank you. We have a couple of other questions. Mr. Zane and Mr. Katz. ZANE: How much rent do you pay? ELLIS: Now I pay $464.00. ZANE: $464. And do you pay your rent directly to Mr. Anderson? ZANE: No. I pay Fourth street Associates. And how long have you paid Fourth street Associates? ELLIS: ELLIS: Well, Eric wrote me a bunch checks out before he left. And so I had all of those checks and then the rent went up and he was in Oregon living in hut sort of an organic farm, so I had to write the extra $14. And he ask me to put the phone bill in my name and the gas bill in my name. He doesn't really--he was only keeping the apartment for me. ZANE: Okay, thanks. KATZ: Mr. Zane asked my questions. Thank you. Let me just fOllow-up then on one question Mr. Zane asked you because we have... When did you begin paying--not using Mr. Anderson's checks? I'm not positive but I think about the beginning of the year. Eric gave me checks for a year. GENSER: ELLIS: GENSER: Of this year? ELLIS: The beginning of this year I paid the full rent. GENSER: So at the time of the application which was... July which was... just about exactly a year ago, July 1, 1991, at that time you were paying with Mr. Anderson's checks? ELLIS: Eric's checks. GENSER: Thank you. We seem to be bouncing off of each other. Mr. Zane. ZANE: I had one other question here. The document we have before us your name and Mr. Anderson's are both listed and it says agree to the conversion. Who actually signed the document? ELLIS: I signed the document that was given to me which I didn't know what it was. Then they told me that--I signed it. And at that time you believed you were signing on behalf of Mr... ZANE: ELLIS: For Eric. ZANE: Mr. Anderson. ZANE: Right. They said--Michele presented it as to get this paperwork about the conversion you need to sign this line. Fine. And at that time was Hr. Anderson still sending the checks in or were you sending checks directly to 2110 4th? ELLIS: ELLIS: No I was--Eric had pre-written checks and I was just turning them in. So in other words, Eric was paying and I was sending checks to Eric. ZANE: At that time as well. ELLIS: R~ght. GENSER: Mr. Ellis, Dr. Holbrook has a question for you sir. HOLBROOK: I think I understand this now. If I do I am the only one here, huh. It was your money that was pay~ng the rent? Honey you earned? ELLIS: Sir. . . HOLBROOK: You were sending your money write checks that you could didn't want the owners to sub-let to you. to someone else to turn in because you know that he had ELLIS: No. It is not that we didn't want the owners to know. Michele knew that I was there and it was not that I was hiding anything. Eric felt he wasn't sure how long he was going to be gone so he felt just so... sort of to keep it in his name. He had had other sub-letters before. The management knew about them and I guess maybe he was thinking he'd like to hold on to it in case he decided to come back. But he didn't want there to be any misunderstanding. ELLIS: But you gave him the money to cover those checks. Is that right? I paid Eric. Right. HOLBROOK: HOLBROOK: Right. So you were--it was your money that was paying the rent. GENSER: Well, that is an issue that we should discuss... HOLBROOK: Well, yes, but I don't understand. You gave him money and he gave you a check. Is that right? ELLIS: Right. HOLBROOK: Okay. Thanks. GENSER: Thank you Mr. Ellis. COUNCIL DISCUSSION GENSER: Close the public hearing. Matter is before the Council. Mr. Olsen and Hr. Zane. OLSEN: I have a question for the staff. I have a question for the city Attorney. If you would respond to Mr. DeSantis' statements about the tenancy and TORCA and sub-leasing which as I took the statement to be that somebody who under TORCA sub-leases it out the original lessee still retains the right because it would be under that way under rent control. Do you have an opinion on that. MYERS: Yeah. At the June 16th Council meeting we advised the Council that we did not believe that a sub-tenant could consent to a TORCA conversion. And following toward the end of the meeting after this particular item was concluded, I went back to my office to see if we had issued any legal opinions on the subject and in fact we had in 1984, two months after TORCA passed, we issued a comprehensive opinion to City staff on the implementation of TORCA and I distributed portions of that memo to the City council and the following day I distributed a copy of it to Mr. DeSantis. And our 1984 legal opinion clearly indicated that a sub-lessee cannot exercise rights to purchase under TORCA and likewise a sub-lessor cannot sign documents either because the occupancy requirement would not be met. I strongly disagree with Mr. DeSantis' legal judgment. I wrote the Rent Control law and am well aware of the provisions in it concerning the def~nition of tenant. I also participated in the drafting of the TORCA law and was responsible for presenting that law to the City Council. And we have a entirely different definition of tenant in the TORCA law. And it was the result of that definition that we, in 1984, two months after the TORCA law passed, wrote a very clear opinion that sub-lessees and sub-lessors could not give their consent and so I think that legal document that was given to City staff, not in the context of any hotly contested dispute, but simply looking at what the law, shortly after the time it passed, I think is very clear. And it's our opinion that a sub-tenant cannot sign. Clearly there are a wide range of issues which have been litigated over the years as who is a sub-tenant and who is a roommate. I think roommate situations- are real clear. You have multiple people occupying a unit generally that has more of the appearance of a co-tenancy. However, when one person moves out of the unit, makes a decision as to who the new person is that is going to be occupying that unit the new person pays money directly to the former tenant, that's a classic sub-tenant arrangement. It's not a landlord-tenant relationship between the owner and the sub-tenant. That's the type of situation that I think we've seen in a couple of cases. Before you this evening there appears to be at least two sub-tenancy signatures based upon the uncontradicted testimony in front of you and that's our legal judgment and I think you got a copy of our opinion a couple of weeks ago on that. GENSER: Mr. Zane you have the floor but may I ask a quick follow-up question on that. Mr. DeSantis also suggested that if we adopted two different definitions of tenant--a definition of tenant for the purpose of TORCA that's different from the definition of tenant for the Rent Control law that once a, if I understood him correctly, that once a TORCA process began sUb-letting tenants would be without their Rent Control Charter protections. And I wondered if you'd like to comment. GENSER: MYERS: Well unauthorized sub-tenants may not have any Rent Control Charter protections in any event. There are some circumstances where we've gone after tenants for rent overcharges to sub-tenants. An unapproved SUb-tenancy arrangement may be a grounds for eviction for good cause under the Rent control law and the definition of tenant under TORCA will not have any impact of interpretations of the Rent Control law. The purpose of TORCA was to allow those people who were occupying the building at a particular point in time the opportunity to purchase their units. It was not designed to allow tenants to basically speculate in their units by moving out, continuing to hold the technical lease so in the event sometime in the future there was a TORCA they could make some money off of the transaction foreclosing and taking away the rights of the person who was actually occupying the unit at the time of the TORCA law. And the purpose was to ensure that two-thirds of the people who were living there and were the tenants and who could participate in the purchase would give their consent. GENSER: Thank you Mr. Myers. Mr. Zane. ZANE: I'd like to make a motion that we uphold the appeal and deny the application for the conversion. OLSEN: Second. ZANE: This application is like swiss cheese. I'm sorry. It is... There are at least four, maybe five, reasonably contested, probably not appropriate tenants for the purposes of being a participating tenant in a TORCA conversion. That reduces the number of legitimate to well below what is required here and perhaps, I mean the evidence to me is essentially is convincing in each case and I can't, I think it would make a mockery of the TORCA process to support this. And frankly I think it's very important that the Planning Department develop some procedural guidelines for verification to assure that TORCAs in the future are not subject to similar sort of curting. GENSER: Mr. Olsen. ZANE: And please return with findings at some point. GENSER: Okay, your motion is that your findings should come back as a denial(?). ZANE: That the attorney should return with findings. Well the reason that I seconded this motion was based on what the city Attorney's advice was about who has the right to claim ownership--to become an owner seems to fly in the face of what's presented to us right here. And, I mean part of the time that I wasn't up here on a Council during this debate I was in the other room on the phone and in the phone book and two of the phone calls that I made, one was to a Mr. Austie... [unintelligible] OLSEN: MYERS: Councilmember Olsen you indicated what the telephone conversations were to me ahead of time. r think it would probably be inappropriate for you to provide evidence after the conclusion of the public hearing based upon telephone conversations that you had with tenants at the property. OLSEN: Well let me suffice it to say that I am convinced that people who signed documents do not reside at the residence and do not have the right to claim to be tenants of that residence and therefore I will support this motion. GENSER: r don't see any other hands I'll state that I also support the motion. I would have made it myself had it not been made by Mr. Zane, in that I don't think we have to get into the issues of does this tenant live 50 percent here or 50 percent here or live in Palmdale or live in Los Angeles, I don't even think we need to get into that. Although I got to say in passing that some of these declarations were said, like one of them said I reside in the unit several days each month. You know statements like that that I think are at best questionable to establish tenancy. But without even approaching that, there are 14 signatures of units that represented their intent to purchase, that's the bare minimum that they need. If one were to fallout, it would disqualify one of those signatures it would be an invalid application. I believe based on the City Attorney's advice on what constitutes a qualifying tenant, participating tenant under the TORCA law, that we throw out two of them, that would be for unit 12 and for unit 16 because they were sub-letting and they were not tenants of the landlord and so that puts us well below that threshold on that column of needed approval so we don't have to get into the issue of the who lives where, I must say even though I'm not counting that to make my decision I think that some of that assessment is fairly convincing. So I support the motion. I'll just call them up in order. Mayor Pro Tern Abdo, Dr. Holbrook, Mr. Katz and was that you Mr. Zane. I thought I saw a hand. Was that yours' Mr. Vasquez? Mr. Vasquez. Mayor Pro Tern Abdo. ABDO: I am going to support the motion with some reluctance. I had hoped that we would be able to resolve this the other way, but there's still so many questions. And the issue of the sub-tenancy is compelling tonight and so I will support the motion even though I strongly support TORCA for residents of a building. GENSER: Dr. Holbrook. HOLBROOK: A question really for the City Attorney. When I served on the school board the final question of occupancy for anybody who claimed residence within the school district is where they slept. If the child slept within the boarders of the school district they were a resident no matter... any other issue. And I am just curious for tenancy is there any issue or is there any definition about where you actually sleep? I mean is there a correspondent. GENSER: For purposes of tenancy is this were Mr. Myers sleeps. Is that what you are asking? MYERS: In connection with landlord tenancy you can rent a unit and be a tenant and never occupy the unit. You can still have a landlord tenant relationship you are still a tenant. For purposes of TORCA you have to both be a tenant and occupy for the six month time period preceding the signature. And occupancy is a question of fact and generally TORCA requires residential occupancy that would require that for some period of time during the six month period the tenant of the unit were residing in that apartment. Now I don't believe that it is supposed to be a continuous six months. That does not mean that you have to sleep there every night for six months. If you go on vacation, you are out business, other things you still satisfy the occupancy. Where the problem is is you have what appears to be sub-tenant relationships and then the tenant on the lease not spending any occupancy time in the units and a couple of the cases are being out of the country for, in one case, the entire period of time before the TORCA application was submitted. It's a question of fact though. HOLBROOK: Let me make sure I understand you. So for example, if you visit a residency and they even in fact spend a certain number of hours there is my interpretation correct that if you're not sleeping there you're not occupying it to some extent. Is that incorrect? MYERS: If all of your sleeping time was spent at some other location under your control I would not believe that occupancy had been established. GENSER: Mr. Katz. KATZ: Well I had asked you the same question earlier on occupancy and your definition is fine except that I will support this motion because I think there is a whole lot of problems in this but your point of sleeping to me is questionable of occupancy. I can occupy it but not sleep there. I think that becomes a problem. Where does it say occupancy is sleep. It says occupancy but it doesn't say sleep. MYERS: I indicated that if you were someplace the entire six month period the time you had another residence where you were sleeping the fact that you came there and were using it as an office or something might not establish the occupancy requirement of TORCA but that would be a factual determination for the Council to make at the time. KATZ: My personal opinion of sleep is questionable. Office is a different one. But if 1 wanted to go somewhere and sit in that place that I rented and under occupancy and read my books, contemplate, watch television, I think that's occupancy. Although in some cases this hasn't been proven. I just don't want this to get into occupancy and sleep. That bothers me. MYERS: I don't think we want to have the type of hearings the Rent Control Board has on some of their owner-occupied... KATZ: We'll salute the flag here. [Unclear.] Anyway, I'm about ready to fall asleep and I don't want to have rights of TORCA to City Hall. Mr. Vasquez and then Mayor Pro Tern Abdo. I think we should go ahead and vote with it. I think the real issue is just the issue of sub-tenancy. GENSER: VASQVEZ: GENSER: Mayor Pro Tern Abdo. 1 hope, Denny, that it was part of your motion that the staff would come up with some kind of procedures that this would. ABDO: ZANE: I think we asked to do that last time and I reiterated this time. I hope we will get a copy of what they come with. GENSER: I hope we never have to have a hearing like this again. It seems to me that a lot of these issues ought to be ironed out long before it gets to th1S point. And I don't know where that happens but there's something wrong when we're sitting up here talking about where people sleep. I think this might be one of the most interesting Council..has the potential for being one of the most interesting council meetings. Yes, but it's only po~ential. Councilmembers let me just clarify for members of the audience what the votes mean here. If a "yes" vote means that we are upholding the appeal and that means no TORCA. A "non vote means denying tqe appeal and that means there would be a TORCA. ABDO: ABDO: GENSER: KATZ: No. A yes means no. [Unclear.] GENSER: Mr. Myers correct me. A nyes" vote means upholding the appeal no TORCA. A "non vote means just we are not approving this motion. will you call the roll please. DYKHOUSE: Mayor Pro Tern Abdo. ABDO: Yes. DYKHOUSE: Councilmember Holbrook. HOLBROOK: Yes. DYKHOUSE: Councilmember Katz. KATZ: Yes. DYKHOUSE: Councilmember Olsen. OLSEN: Yes. DYKHOUSE: Councilmember Vasquez. VASQ1;EZ: Yes. DYKHOUSE: councilmernber Zane. ZANE: Yes. DYKHOUSE: Mayor Genser. GENSER: Yes. That motion is approved unanimously and the appeal has been upheld. The TORCA conversion has been denied and this will return to the Council for adoption of findings at a later date. STATEMENT OF OFFICIAL ACTION PROJECT NUMBER: TPC 183, VTTM 50638 LOCATION: 2110 4TH Street APPLICANT: HR Capital-Rossmore APPELLANT: D. Longstreet, L. Auker, M. Hale, L. Gale, L. privo CASE PLANNER: Drummond Buckley, Assistant Planner REQUEST: Appeal of Planning Commission Approval of Tenant Participating Conversion, vesting Tentative Tract Map CITY COUNCIL ACTION 6/30/92 Date. x Appeal upheld based on the following findings. Appeal denied. Other. EFFECTIVE DATE(S) OF ACTION(S) : FINDINGS 1. Article XX, section 2004(a) of the city Charter of the City of Santa Monica provides that a Tenant-Participating Conversion Application (hereinafter "Application"), together with any required tentative subdivision map or tentative parcel map, shall be denied if the Tenant-Participating Conversion Application fails to meet any of the requirement of this ArtiCle, or was the result of fraud, misrepresentation, or threat or similar coercion. 2. This Tenant-Participating Conversion Application fails to meet the requirement of Article XX, Section 2004(a) of the city Charter of the city of Santa Monica, in that it is signed by cosigning tenants occupying less than two-thirds of all the residential units in the building; in that it attached Statements of Tenant Intent to Purchase, signed by Intending to Purchase Tenants occupying less than fifty percent of the total number of residential units in the building; and in that at least one siqnature was obtained by fraud or misrepresentation. EX[IBll C 3. section 2002(f) requires that the Application is signed by cosigning tenants occupying not less than two-thirds of all the residential units in the building. section 2001(n) defines "tenant" as: "Any person who is an authorized tenant of an owner of a residential rental building for which a Tenant-Participating Conversion Application is being processed." Section 2001(b) defines "cosigning tenant" as: "Any tenant agreeing to the conversion by his or her signature on the Tenant-Participating Conversion Application who has personally occupied his or her unit continuously for a period of at least six (6) months prior to the date he or she signs the Tenant-Participating Conversion Application." 4. The Application contained the signatures of persons occupying 19 of the 27 residential units. However, the signatures of the persons signing for Units 12 and 16 do not qualify as cosigning tenants. 5. The signator for unit 12, Gary Murakami, is not listed as the tenant on the Rental Agreement submitted by applicant. Nor is he listed on the 1992 Rent Checklist submitted by applicant. Sabrina Kriegs is listed as the tenant on the Rental Agreement and Rent Checklist. KRIEGS testified at the June 16, 1992 City Council meeting that she was away from her unit in Europe from one year from November 26, 1990 to November 1991; that MURAKAMI moved into her unit within one week of her departure in November 1990: that she continued to pay the rent to the building owners during her absence and that MURAKAMI paid rent to KRIEGS. The declaration submitted by MURAKAMI states that he occupied the unit for one year. MURAKAMI does not meet the criteria for "cosigning tenant" as he is not an authorized tenant of the owner, but rather a subtenant of KRIEGS. MURAKAMI's signature cannot be counted as a signature of a cosigning tenant. 6. The signature of KRIEGS agreeing to the conversion was dated January 22, 1992, and was submitted after the Application was deemed complete September 18, 1991. KRIEGS' signature is not valid, as the signatures of the cosigning tenants agreeing to conversion must be submitted with the Application. Even had KRIEGS signed before the time of Application submittal, September 1991, she would not have qualified as a cosigning tenant, based upon her testimony that she was out of the country between November 1990 and November 1991. Thus, she did not personally occupy unit 12 continuously for six months prior to the date the Application was submitted. 7. The signator for unit 16, John Ellis, is not listed as the tenant on the Rental Agreement submitted by applicant. Eric Anderson is listed as the tenant. ELLIS testified at the June 30, 1992 City Council meeting that he sublets the apartment from ANDERSON; that ANDERSON retained the actual contractual relationship with the building owners; that at the time of signing the Tenant Participating Conversion Application, the rent was paid to the building owners by checks drawn on ANDERSON's account, not ELLIS' account; ~bat when he was given ~he Application and Intent to Purchase forms to sign, he was told i~ - 2 - was a formality so that ANDERSON could get necessary paperwork: and was told that it was necessary to sign the documents to receive the paperwork. ELLIS does not meet the criteria for "cosigning tenant" as he is not an authorized tenant of the owner, but rather a subtenant of ANDERSON. ELLIS' signature cannot be counted as a signature of a cosigning tenant. 8. Without the signatures of MURAKAMI or ELLIS, the Application contains signatures of cosigning tenants occupying 17 of 27 units. The Application thus is signed by cosigning tenants occupying less than two-thirds of all the residential units in the building, and fails to meet the requirements of section 2002 (f) . 9. In addition, based upon the testimony of ELLIS regarding the characterization of the documents presented to him for signature described in Paragraph 7 above, the Application is the result of fraud or misrepresentation, and thus must be denied pursuant to section 2004(a). 10. section 2002(j) requires that the Application has attached statements of Tenant Intent to Purchase, signed by Intending to Purchase Tenants occupying not less than fifty percent of the total number of residential units in the building. section 2002(d) defines "Intending to Purchase Tenant" as: "Any tenant who has personally occupied his or her unit in the building continuously for a period of at least six months immediately preceding the date the tenant signs a Tenant Intent to Purchase." 11. The Application attached Tenant Intent to Purchase forms signed by persons occupying 14 of the 27 residential units. However, the signatures of the persons signing for units 12 and 16 do not qualify as Intending to Purchase Tenants. 12. The Tenant Intent to Purchase form for unit 12 is signed by MURAKAMI. For the reasons set forth in Paragraph 5 above, MURAKAMI is not a tenant, but a subtenant of KRIEGS. MURAKAMI thus does not qualify as an Intending to Purchase Tenant. The Tenant Intent to Purchase form signed by MURAKAMI cannot be counted as a Tenant Intent to Purchase form signed by an Intending to Purchase Tenant. 13. The Tenant Intent to Purchase form signed by KRIEGS was submitted after the application was deemed complete September 18, 1991, and was dated January 22, 1992. This form is not valid, as the Tenant Intent to Purchase form signed by Intending to Purchase Tenants must be submitted with the Application. Even had the form been signed by KRIEGS before the time of Application submittal, September 1991, she would not have qualified as an Intending to Purchase Tenant based upon her testimony that she was out of the country between November 1990 and November 1991. Thus, she did not personally occupy unit 12 continuously for a period of at least six months immediately preceding the date the Tenant Intent to Purchase form is signed. - 3 - 14. The Tenant Intent to Purchase form for unit 16 is signed by ELLIS. For the reasons set forth in Paragraph 7 above, ELLIS is not a tenant, but a subtenant of ANDERSON. ELLIS thus does not qualify as an Intending to Purchase Tenant. The Tenant Intent to Purchase form signed by ELLIS cannot be counted as a Tenant Intent to Purchase form signed by an Intending to Purchase Tenant. 15. Without the Tenant Intent to Purchase forms signed by MURAKAMI and ELLIS, the Application attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying 12 of 27 units. The Application thus attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying less than fifty percent of all the residential units in the building, and fails to meet the requirements of Section 2002{j). 16. Substantial questions were raised about the eligibility of other signatures. However, in light of the above findings, no determination is required with respect to other units. VOTE ON THE MOTION TO UPHOLD THE APPEAL: Ayes: Abdo, Genser, Holbrook, Katz, Olsen, Vazquez, Zane Nays: Abstain: Absent: NOTICE: If this is a final decision not subject to further appeal under the City of Santa Monica Comprehensive Land Use and Zoning Ordinance, the time within which judicial review of this decision must be sought is governed by Code of civil Procedure section 1094.6, which provision has been adopted by the city pursuant to Municipal Code section 1400. I hereby certify that this statement of Official Action accurately reflects the final determination of the City council of the city of Santa Monica. Clarice Dykhouse CITY CLERK Date - 4 - STATEMENT OF OFFICIAL ACTION PROJECT NUMBER: TPC 183, VTTM 50638 LOCATION: 2110 4TH street APPLICANT: HR Capital-Rossmore APPELLANT: D. Longstreet, L. Auker, M. Hale, L. Gale, L. privo CASE PLANNER: Drummond Buckley, Assistant Planner REQUEST: Appeal of Planning Commission Approval of Tenant Participating Conversion, Vesting Tentative Tract Map CITY COUNCIL ACTION 6/30/92 Date. x Appeal upheld based on the following findings. Appeal denied. Other. EFFECTIVE DATE(S) OF ACTION(S): FINDINGS 1. Article XX, section 2004(a) of the City Charter of the City of Santa Monica provides that a Tenant-Participating Conversion Application (hereinafter "Application"), together with any required tentative subdivision map or tentative parcel map, shall be denied if the Tenant-Participating Conversion Application fails to meet any of the requirement of this Article, or was the result of fraud, misrepresentation, or threat or similar coercion. 2. This Tenant-Participating Conversion Application fails to meet the requirement of Article XX, section 2004(a) of the city Charter of the City of Santa Monica, and is denied with prejudice for failinq to meet TORCA requirements, in that it is signed by cosigning tenants occupying less than two-thirds of all the residential units in the building; in that it attached Statements of Tenant Intent to Purchase, signed by Intending to Purchase Tenants occupying less than fifty percent of the total number of residential units in the building; and in that at least one siqnature was submitted after the application was deemed complete EXHIBIT D and was signed by a tenant who had not personally occupied her unit for six months prior to the date the tenant signed the intent forms. 3. section 2002(f) requires that the Application is signed by cosigning tenants occupying not less than two-thirds of all the residential units in the building. section 200l(n) defines "tenant" as: nAny person who is an authorized tenant of an owner of a residential rental building for which a Tenant-Participating Conversion Application is being processed." Section 2001(b) defines "cosigning tenant" as: "Any tenant agreeing to the conversion by his or her signature on the Tenant-Participating Conversion Application who has personally occupied his or her unit continuously for a period of at least six (6) months prior to the date he or she signs the Tenant-Participating Conversion Application." 4. The Application contained the signatures of persons occupying 19 of the 27 residential units. However, the signatures of the persons signing for Units 12 and 16 do not qualify as cosigning tenants. 5. The signator for Unit 12, Gary Murakami, is not listed as the tenant on the Rental Agreement submitted by applicant. Nor is he listed on the 1992 Rent Checklist submitted by applicant. Sabrina Kriegs is listed as the tenant on the Rental Agreement and Rent Checklist. KRIEGS testified at the June 16, 1992 City Council meeting that she was away from her unit in Europe from one year from November 26, 1990 to November 1991: that MURAKAMI moved into her unit within one week of her departure in November 1990: that she continued to pay the rent to the building owners during her absence and that MURAKAMI paid rent to KRIEGS. The declaration submitted by MURAKAMI states that he occupied the unit for one year. MURAKAMI does not meet the criteria for "cosigning tenant" as he is not an authorized tenant of the owner, but rather a subtenant of KRIEGS. MURAKAMI's signature cannot be counted as a signature of a cosigning tenant. 6. The signature of KRIEGS agreeing to the conversion was dated January 22, 1992, and was submitted after the Application was deemed complete September 18, 1991. KRIEGS' signature is not valid, as the signatures of the cosigning tenants agreeing to conversion must be submitted with the Application. Even had KRIEGS signed before the time of Application submittal, september 1991, she would not have qualified as a cosigning tenant, based upon her testimony that she was out of the country between November 1990 and November 1991. Thus, she did not personally occupy unit 12 continuously for six months prior to the date the Application was submitted. 7. The signator for Unit 16, John Ellis, is not listed as the tenant on the Rental Agreement submitted by applicant. Eric Anderson is listed as the tenant. ELLIS testified at the June 30, 1992 City Council meeting that he sublets the apartment from ANDERSON: that ANDERSON retained the actual contractual relationship with the building owners; that at the time of - 2 - signing the Tenant Participating Conversion Application, the rent was paid to the building owners by checks drawn on ANDERSON's account, not ELLIS' account; that he did not consider himself to be an authorized tenant of the owner and was sublettinq the unit directly from Mr. Anderson at the time that he siqned the intent forms. ELLIS does not meet the criteria for tlcosigning tenant" as he is not an authorized tenant of the owner, but rather a subtenant of ANDERSON. ELLIS' signature cannot be counted as a signature of a cosigning tenant. 8. without the signatures of MURAKAMI or ELLIS, the Application contains signatures of cosigning tenants occupying 17 of 27 units. The Application thus is signed by cosigning tenants occupying less than two-thirds of all the residential units in the building, and fails to meet the requirements of Section 2002(f). [DELETION] 9. Section 2002(j) requires that the Application has attached statements of Tenant Intent to Purchase, signed by Intending to Purchase Tenants occupying not less than fifty percent of the total number of residential units in the building. Section 2002(d) defines "Intending to Purchase Tenant" as: "Any tenant who has personally occupied his or her unit in the building continuously for a period of at least six months immediately preceding the date the tenant signs a Tenant Intent to Purchase." 10. The Application attached Tenant Intent to Purchase forms signed by persons occupying 14 of the 27 residential units. However, the signatures of the persons signing for Units 12 and 16 do not qualify as Intending to Purchase Tenants. 11. The Tenant Intent to Purchase form for unit 12 is signed by MURAKAMI. For the reasons set forth in Paragraph 5 above, MURAKAMI is not a tenant, but a subtenant of KRIEGS. MURAKAMI thus does not qualify as an Intending to Purchase Tenant. The Tenant Intent to Purchase form signed by MURAKAMI cannot be counted as a Tenant Intent to Purchase form signed by an Intending to Purchase Tenant. 12. The Tenant Intent to Purchase form signed by KRIEGS was submitted after the application was deemed complete September 18, 1991, and was dated January 22, 1992. This form is not valid, as the Tenant Intent to Purchase form signed by Intending to Purchase Tenants must be submitted with the Application. Even had the form been signed by KRIEGS before the time of Application submittal, September 1991, she would not have qualified as an Intending to Purchase Tenant based upon her testimony that she was out of the country between November 1990 and November 1991. Thus, she did not personally occupy unit 12 continuously for a period of at least six months immediately preceding the date the Tenant Intent to Purchase form is signed. - 3 - 13. The Tenant Intent to Purchase form for unit 16 is signed by ELLIS. For the reasons set forth in Paragraph 7 above, ELLIS is not a tenant, but a subtenant of ANDERSON. ELLIS thus does not qualify as an Intending to Purchase Tenant. The Tenant Intent to Purchase form signed by ELLIS cannot be counted as a Tenant Intent to Purchase form signed by an Intending to Purchase Tenant. 14. Without the Tenant Intent to Purchase forms signed by MURAKAMI and ELLIS, the Application attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying 12 of 27 units. The Application thus attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying less than fifty percent of all the residential units in the building, and fails to meet the requirements of section 2002(j). 15. Substantial questions were raised about the eligibility of other signatures. However, in light of the above findings, no determination is required with respect to other units. VOTE ON THE MOTION TO UPHOLD THE APPEAL: Ayes: Abdo, Genser, Holbrook, Katz, Olsen, vazquez, Zane Nays: Abstain: Absent: NOTICE: If this is a final decision not subject to further appeal under the City of Santa Monica Comprehensive Land Use and Zoning Ordinance, the time within which judicial review of this decision must be sought is governed by Code of Civil Procedure Section 1094.6, which provision has been adopted by the City pursuant to Municipal Code Section 1400. I hereby certify that this statement of Official Action accurately reflects the final determination of the City council of the City of Santa Monica. Clarice Dykhouse CITY CLERK Date - 4 - 13. The Tenant Intent to Purchase form for unit 16 is signed ~y ELLIS. For the reasons set forth in Paragraph 7 above, ELLIS 1S not a tenant, but a subtenant of ANDERSON. ELLIS thus does not qualify as an Intending to Purchase Tenant. The Tenant Intent to Purchase form signed by ELLIS cannot be counted as a Tenant Intent to Purchase form signed by an Intending to Purchase Tenant. 14. Without the Tenant Intent to Purchase forms signed by MURAKAMI and ELLIS, the Application attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying 12 of 27 units. The Application thus attaches Tenant Intent to Purchase forms signed by Intending to Purchase Tenants occupying less than fifty percent of all the residential units in the building, and-fails to meet the requirements of Section 2002(j). 15. Substantial questions were raised about the eligibility of other signatures. However, in light of the above findings, no determination is required with respect to other units. VOTE ON THE MOTION TO UPHOLD THE APPEAL: Ayes: Abdo, Genser, Holbrook, Katz, Olsen, Vazquez, Zane Nays: Abstain: Absent: NOTICE: If this is a final decision not subject to further appeal under the City of Santa Monica Comprehensive Land Use and Zoning Ordinance, the time within which jUdicial review of this decision must be sought is governed by Code of civil Procedure Section 1094.6, which provision has been adopted by the City pursuant to Municipal Code Section 1400. I bereby cer~iry ~hat this stat..en~ of Orricial Action accurately reflects the final d.~.rmination of the ci~y Council of the City of santa Konica. ~~4~ Clarice Dykhouse CITY CLERK ?-~y-?~ Date - 4 -