SR-7-B (14)
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city Council Meeting 9-22-92
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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
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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
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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~ .. ~
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EXHIBIT B
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'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 -