SR-6-C (128)
e e Ioe,
ATTACHMENT B
STATEMENT OF OFFICIAL ACTION
PROJECT
NUMBER: Variance 90-039, Waiver of Parcel Map 90-001
LOCATION: 2039-2045 11th street
APPLICANT: Robert Baron & David Gallenson
CASE PLANNER: Susan White, Assistant Planner
REQUEST: Application for a variance and Waiver of Par-
cel Map to allow the adjustment of a parcel
line and to allow the creation of a lot that
is approximately 3' , depth less than the
l.n
minimum 100' depth required by Code.
PLANNING COMMISSION ACTION
7/10/91 Date.
Approved based on the following findings and
subject to the conditions below.
Denied.
X Other. Denied for lack of four votes.
EFFECTIVE DATE(S) OF ACTION(S) IF NOT APPEALED:
~ 7/24/91 Case #VAR 90-030
7/10(91 Case #WPM 90-001
VARIANCE FINDINGS
1. There are no special circumstances or exceptional charac-
teristics applicable to the property involved, including
size, shape, topography, location, or surroundings, or to
the intended use or development of the property that do
not apply to other properties in the vicinity under an
identical zoning classification, in that the existing lots
are level and meet the standard lot size and dimensions as
required by code.
2. The granting of such variance will be detrimental or in-
jurious to the property or improvements in the general
vicinity and district in which the property is located, in
that it would allow the creation of one lot which does not
meet the standards for minimum lot depth as required by
code.
- 1 -
B
-- -- -
e e
3. The strict application of the provisions of this Chapter
would not result in practical difficulties or unnecessary
hardships, not including economic difficulties or economic
hardships, in that the existing on-site uses of one single
family structure and one, two-unit mUlti-family structure
are not proposed to be altered.
4. The granting of a variance will be contrary to or in con-
flict with the general purposes and intent of this Chap-
ter, or to the goals, objectives and policies of the
General Plan, in that it would not meet the applicability
requirements as stated in section 9113.3(a) of the Zoning
Ordinance.
5. The variance would impair the integrity and character of
the district in which it is to be located, in that the
proposed lot line adjustment would create a parcel which
does not meet the code required minimum lot dimensions.
6. The subject site is not physically suitable for the pro-
posed variance, in that the proposal would create one sub-
standard-size lot from two existing standard-sized
parcels.
7. There are adequate provisions for water, sanitation, and
public utilities and services to ensure that the proposed
variance would not be detrimental to public health and
safety, in that the subject parcel is located in a fully
developed urban area with adequate infrastructure to sup-
port the continued on-site single family dwelling uses.
8. There will be adequate provisions for public access to
serve the subject variance proposal, in that the SUbject
parcel contains frontage on two public streets.
9. The strict application of the provisions of Chapter 10 of
the city of Santa Monica comprehensive Land Use and zoning
Ordinance would not result in unreasonable deprivation of
the use or enjoyment of the property, in that the existing
on-site single family uses are not proposed to be altered.
Prepared by: Susan White, Assistant Planner
VOTE
Ayes: Gilpin, Nelson
Nays: Morales, Polhemus, Mechur
Abstain:
Absent: Pyne, Rosenstein
- 2 -
-- ---
e e
NOTICE
If this is a final decision not subject to further appeal under
the City of Santa Monica Comprehensive Land Use and Zoning Or-
dinance, 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 accurate-
ly refleots the final determination of the Planning commission of
the city of Santa Monioa.
signature date
Ralph Mechur, Chairperson
Please Print Name and Title
I hereby agree to the above conditions of approval and
acknowledge that failure to oomply with suoh conditions shall
constitute grounds for potential revocation of the permit
approval.
Applicant's Signature
Print Name and Title
PC/st039
DKW: SMW
- 3 -
- - -- - - - ------ - - ----
. ~f)
e e
. ATTACHMENT C
CITY PLANNING DIVISION
Land Use and Transportation Management Department
M E M 0 RAN DUM
DA.TE: July lO, 1991
T^' =he Honorable Plannlng CO~isslon
v.
F?CH: Plannlng staff
ST:B':-ECT: variance 90-039, waiver of Parcel Map 90-001
Address: 2039-2045 11th Street
Appllcant: Robert Baron & David Gallenson
SUMMARY
Action: Application for a variance and Waiver of Parcel Map to
allow the adjustment of a parcel line and to allow the creation
of a lot that is approximately 31 in depth less than the minimum
lOa' depth required by Code.
Recommendation: Denial based on the findings contained herein.
Permit Streamlining Expiration Date: May 21, 1991
Subdivision Action Deadline: August 29, 1991
SITE LOCATION AND DESCRIPTION
The subject property is a 13,135 sq. ft. parcel located on the
east side of Eleventh Street between Bay street and Grant Avenue
having a frontage of 50 feet. Surrounding uses consist of a sin-
gle family residence (R2) to the north, a single family residence
(Rl) to the south, a single family residence (R2) to the east and
a single family residence (R2) to the west. Existing on-site
uses include two, 1 story, single family residential structures
with an existing garage.
zoning District: R2
Land Use District: Low Density Multiple Residential
Parcel Area: Lot 12 - (45' X 128.62' = 5787.9 sq.ft.)
Lot 13 - (46.91' x 128.62' x 51.86' x 112.74'
= 7265 sq.ft.)
,
- 1 -
C
- ------ ----- -----------
e e
.
?RO~ECT ~ESCRIP~:ON
The applicant proposes a va~iance and a waiver of parcel map ~o
allow the adjust~ent of a lot line currently oriented north-south
to east-west creating a parcel with a depth approximately 3' less
than the code required 100' min~mum.
~NICIPAL CODE AND GENERAL PLAN CONFO~~CE
The proposed proJect is inconsistent with the Municipal Code and
not in conformity with the General Plan in that it would create
or.a parcel area which does not meet minimum standards for parcel
dimensions. Although the Municipal Code allows var~ances of
minimum parcel requirements, the subject property does not r.eet
the minimum findings wh~ch must be made to support said variance.
CEQA STATUS
The subject property is categorically exempt from the provisions
of CEQA under Class 5 of the City of Santa Monica CEQA
Guidelines.
RENT CONTROL STATUS
Four (4) on-site units have been removed from the rental market
via the Ellis Act. The structure at 2039 11th street was subse-
quently converted into a single family residence, and an occupan-
cy permit was obtained. A building permit applicationjplancheck
for the structure at 2045 11th street was filed to convert the
remaining two units into a single family unit.
FEES
The proposed project is not Subject to any planning fees.
ANALYSIS
Background
The subject parcels consists of existing lot #12 (45' x 128.62')
and #13 (46.91' x 128.62' x 51.86' x 112.74'). The applicant
proposes a variance to allow a lot line adjustment to change the
orientation of the existing lot line from north-south to east-
west. The addresses of the subject parcels would remain as 2039
& 2045 11th Street respectively. The proposed parcels would in-
clude Lot "A" with a width of 53.51 r to 69.62 t and a minimum
length of 102.11'. Proposed Lot "B" would be a width of 59' to
59.23' and a length of 96.85' to 102.11'. The code required
minimum lot size requires a minimum width of 50' and a minimum
depth of 100'. A variance is required to create Lot "B" with a
substandard length of 96.86'.
- 2 -
e e
· One (1) si:1g1e fam'ly structure and one (1) two unit, mul~:-
family struc~ure c~rrently exist on Lots 12 and 13. T~e st=uc-
tures are not proposed to be demolished or altered as part of the
var~ance and waiver of parcel map request.
Code Co~pliance
Section 9113.3 of the zoning Code allows a modification of code
minimum lot sizes and parcel dimens1.ons "as may be necessary to
secure an appropriate 1.mprovement on the parcellll and 1.f the ap-
propriate findings in section 9113.4 can be made.
In response to the applicant's request (and another similar
request which is before the Planning Commission) I the City Attor-
ney's office issued an opinion which states that the proposed lot
line adjustment ca.P1not be approved under by the City of Santa
Monica's existing Zoning Codel or by existing legal precedent.
To summarize the City Attorney's opinionl (Attachment C) I the
proposed application fails to meet the intent of the Zoning Or-
dinance based on three basic points:
1) The Zoning Code allows a variance for parcel dimension or
size only if this is necessary to "secure an appropriate improve-
ment on the parcel." The two existing lots are currently devel-
oped with two single family dwelling units, and may be expanded
to include up to a total of nine dwelling units, whether or not a
variance is granted to allow a waiver of parcel map to realign
the orientation of the parcels.
2) state of California case law has established that variances
may be granted only where a strict interpretation of existing
codes creates an "unnecessary hardship." This hardship finding
is also included in the Zoning ordinance under Section 9113.5(k).
However, the parcels in question "... have ongoing economically
viable uses..." and the lots will remain developed with two sin-
gle family residences whether or not a lot line adjustment is
granted.
3) The applicant cannot meet the required finding (Section
9113.5 (a)) that "there are special circumstances or exceptional
characteristics applicable to the property involved, including
size, shape, topography, location or surroundings...that do not
apply to other properties in the vicinity under an identical
zoning classification. II This opinion is based on the fact that
the current parcels are level and are of minimum lot size and
dimensions as required by code.
A counter-argument which supports the proposed lot line adjust-
ment may also be made:
1) In the proposed revisions to the zoning ordinance, which have
been pending before the Planning Commission for nearly six
months, Planning staff have recommended that Section 9113.3(a) be
revised to omit the requirement stating that a variance may be
granted only lias necessary to secure an appropriate improvement
- 3 -
e tit
on the parcel. II I:: the proposed code change is approved, th~s .
would address one or the City Attor~eyls concerns.
2) If a finding is made tr.at special c~rcumstances exist due ~o
the prevailing orientatlon of lots in the parcel vicinity, lt ~ay
be arg~ed that the lots in the parcel vicinity along 11th Street
are primarily orlented east-west and that granting of the
var~ance and walver of parcel map would create two lots which
conform to the prevailing pattern of parcels oriented east-west
with front yards facing 11th street.
Conclusion
Based on the City Attorney's opinion, staff recommends that the
proposed variance and waiver of parcel map be denied.
RECOMMENDATION
It is recommended that the Planning Commission deny Variance 90-
039 and Waiver of Parcel Map 90-001 based on the following
findings:
VARIANCE FINDINGS
1. There are no special circumstances or exceptional charac-
teristics applicable to the property involved, including
size, shape, topography, location, or surroundings, or to
the intended use or development of the property that do
not apply to other properties in the vicinity under an
identical zoning classification, in that the existing lots
are level and meet the standard lot size and dimensions as
required by code.
2. The granting of such variance will be detrimental or in-
j ur ious to the property or improvements in the general
vicinity and district in which the property is located, in
that it would allow the creation of one lot which does not
meet the standards for minimum lot depth as required by
code.
3. The strict application of the provisions of this Chapter
would not result in practical difficulties or unnecessary
hardships, not including economic difficulties or economic
hardships, in that the axistinq on-site uses of one single
family structure and one, two-unit mUlti-family structure
are not proposed to be altered.
4. The granting of a variance will be contrary to or in con-
flict with the general purposes and intent of this Chap-
ter, or to the goal s , obj ecti ves and pol icies of the
General Plan, in that it would not meet the applicability
requirements as stated in section 9113.3(a) of the Zoning
Ordinance.
5. The variance would impair the integrity and character of
the district in which it is to be located, in that the
- 4 -
--- --
,
e e
proposed lo~ llne adjustment would create a parcel which
does r.ot meet ~he code re~~lred mlnimurn lot dimensions.
6. The subject site is not physically suitable for the pro-
posed variance, in that the proposal would create one sub-
standard-slze lot from two existing standard-sized
parcels.
7. 7~ere are adequate provisions for water, sanitation, and
p~bl~c u~llities and services to ensure that the proposed
variance would not be detrimental to public health and
safety, in that the subject parcel is located in a fully
developed urban area with adequate infrastructure to sup-
port the continued on-site single family dwelling uses.
8. There will be adequate provisions for public access to
serve the subject variance proposal, in that the subject
parcel contains frontage on two public streets.
9. The strict application of the provisions of Chapter 10 of
the City of Santa Monica Comprehensive Land Use and Zoning
Ordinance would not result in unreasonable deprivation of
the use or enjoyment of the property, in that the existing
on-site single family uses are not proposed to be altered.
Prepared by: Susan White, Assistant Planner
Attachments:
A. Municipal Code and General Plan Conformance
B. Radius and Location Map
C. City Attorney's Office Memorandum
D. Photographs of site and surrounding Properties
E. Plot Plan, Floor Plans and Elevations
SMW
pc/m039
07/03/91
- 5 -
.
e e
ATTACHMENT A
MUNICIPAL CODE AND GENERAL PLAN CONFORMANCE
Land Use
category Element Municipal Code project
?er~ntted ('se single single & Single
& Multi- MUlt1-family Fam1ly
Resid. Residential Structure
& Multi-family
structure to
remain.
Moratorium Status NjA
- 6 -
~ L
~ A
...
I
!
i
j
- - J
t
I'~
LeTS . VAR' C - C' J9
I ffiAL DESCRIPTION /2 ~/3 of T^,A GT 12 {p ':,-5"' CASE NO. W P 1'<1 90 -- oc I
I 2039 - 204 ~ II -rh 5 -rrect- F?Z
I ;J fHEET ADDRESS ZONE
RC86RT B'A te oN' /
I APPLICANT (?Av'i i/ G:t A L..t- IE N"5 c IV' DATE fRlz'5"/?/
!
.
I
I PUBLIC I lie /9 I
RADIUS MAP FOR i HEARING
DATE
[1>l!JAlMlM~~@ [Q)~[PMij~~tNllr
can ~~ R.ference:
S-t- Jl1--;c. AtlosMop 12-
She.. No.
~U~~~Ub.\
. :3
,
e e
'-,.-' E::'::. r_~;:::"~ ::?!~; = :.~; :;t~-!g =':R 9: - :. 'J ~.. _ -
I"""" :.,.0-.-... - ~.
_.,. ........_ .." _, _ ';J; i-_ 4-~i ~ I
~....".:..:..: __ar::h 2::, ...991
TC: ?aul Eerlant, Land Cse & !ra~spor~atlon
Management Dlrector
~e"ycn ~ebster, Prlnclpal Planner
F~C~: Robert M. Myers, Clty Attorney
Barry A. ~osenbaum, Deputy City Attorney
SuBJECT: Interyretatlon of Municlpal Code Sectlon 9113.3
This offlce recently recelved inquirles from the City's
Planning Staff concernlng the approprlateness of varlance
requests by owners of two properties in the City.
The flrst project involves two lots co-owned by two owners,
who wish to do a lot line adjustment. The lot line currently
runs through the middle of two single family homes. The
co-owners want to adjust the line to run between the two houses,
with the result that the two houses would each rest on a separate
lot. The owners would each reside in one of the houses. The
owners have requested a varlance because the lot dimensions for
one of the parcels would not meet the requirements of the Zonlng
Code.
The second project involves an owner who wants to subdivide
an existlng lot. A single family home currently exists on the
lot. The owner plans to sell off or build a single family home
on the newly created lot. The current dimensions are roughly 140
x 50; subdivided each lot would be 70 x 50 instead of the
required 100 x 50.
Santa Monica Municipal Code Section 9113.1 et seq.
establishes the bases and procedure for obtaining a variance. As
Section 9113.1 provides: "A variance is intended to permit
variations where practical difficulties, unnecessary hardships or
results inconsistent with the general purpose of this Chapter
would occur from its strict literal interpretation and
enforcement."
Under the Code, the only basis for obtaining a variance
from minimum lot size requirements is set forth in Section
9113.3(a). This section provides that a variance may be granted
to n[p]ermit modification of the minimum lot sizes . . . as
maybe necessary to secure an appropriate improvement on the
p'~rcel. II (emphasis added). However, neither, of these proj7cts
seek a variance to enable them to obta1n an appropr1ate
improvement on their property. Beth of these projects already
have improvements on the parcels which are consistent with
- 1 -
e e
=~r~e-~ Z~-:-~. :-ieed, as d:sc~ssej, ~h8 fIrst proJec~ dces -at
58e< ~o add a~y :~~rcve~8n~s ~o eIther of the parcels as part of
tte ~ct l~ne ajJ~s~~ent.
It 1S well-estatllshed ~hat a var1ance 1S approprlate where
en:~~=e~ent of a zcnl~g requ~rement would cause unnecessary
~ards~lp. Sec~len 9113.1; P~I Mortg. Ins. Co. v. City of PacIfIC
G~ove, :23 Cal. ;o.pp. 3d 724, 731-32, 179 Cal. Rptr. 185, 189-90
(1981); Za'-ess:a"1 v. CIty of Sausallto, 28 Cal. App. 3d 794,
799-8CO, l05 Cal. Rptr. 105, 108-09 (1972). GIven the eXIstIng
:~prove~ents on the subJect propertIes, It is hard to l~agir.e how
such a showIng could be made hereln. Indeed, as stated in
~a:il11 ten v. Board of S'.lperV1Sors of Co. of Santa Barbara, 269
Cal. App. 2d 64, 75 Cal. Rptr. 106, 110 (1969):
"If the property can be put to effectlve use,
consistent WIth Its eXlsting zoning, without
the deviation sought, it is not significant
that the variances sought would make the
applicant's property more valuable, or that
they would enable him to recover a greater
income, nor that they would relieve him from
undesired costs in compliance with the
exist1ng restr1ctions." (citation omitted).
Additionally, even if Section 9113.3(a) were somehow deemed
applicable to the projects herein, the required findings of fact
set forth in Section 9113.5 could not be made. This. is
particularly the case with regard to the finding required by
Section 9113.5 (k) that: liThe strict application of the
provisions of this Chapter would result in unreasonable
deprivation of the use or enjoyment of the property.
Such a finding could not be made for either of the projects
herein since, as discussed, both properties presently have
ongoing economically viable uses -- single family homes. While
it is true that the granting of a variance might increase the
value of these properties, this factor does not provide a legal
basis for the granting of a variance. As the court stated in
Broadway, Laguna, Vallejo Ass'n v. Board of Per. App., 66 Cal.2d
767, 427 P.2d 810, S9 Cal. Rptr. 146, 151 (1967): U[w]e must be
careful to distinguish . . . between those circumstances which
prevent a builder from profitably developinq a lot within the
strictures of the planninq code and those conditions which simply
render a complying structure less profitable than anticipated."
In analyzing a request tor a variance, only the former
circumstance justifies a variance request. rd.
Addi tionally, another required finding is that "there are
special circumstances or exceptional characteristics applicable
to the property involved, including size, shape, topography,
location or surroundings . .. that do not apply to other
properties in the vicinity under an identical zoninq
classification." Section 9113.5{a). Such a showinq cannot be
made with respect to either of the projects herein. This is
particularly so with respect to the latter described project
- 2 -
e e
Slr.ce a :1'J.:-ber ~~ ;;:a:-\::el.s :.;-=,ed1a~ely adJacent to -:.!1e subJect
.....,
t)arcel are of Sl~l':'ar Size. G1ven that the C1rcumstances of
adJacent parcels holders 1S largely the same, a variance 15 not
Justif1ed. See Orlnda Ass'n v. Board of Sup'rs, Etc. , 182 Cal.
App. 3d 1145, 1166, 227 Cal. Rptr. 688, 701-02 (1986) (necessary
ShO"..il:ig for a variance 1S that "strict appl1cation of zoning
rules ~ould prevent the would-be developer from ut1lizing his or
!"',er property to the same extent as other property owners in the
sa:-'ie ZC:'\lr.g d:strict") ; Topanga Ass'n Scenic Corn. v. County of
Los A:-.geles, 11 Cal. 3d 506, 520-21, 522 P.2d 12, 21-22, 113 Cal.
Rptr. 836, 845-46 (1974) .
Finally, with respect to the second project, the subject
parcel presently conforms to the Clty's Zoning Code. However,
the granting of a variance would result in two nonconforming
parcels. There appears to be no planning or policy reason which
would Justify this result.
Given the above factors, it would not appear that variances
for either of these projects is justified under Section 9113.3.
mad40jhpadv
- 3 -
, . ~--- - -- - --~--~---r-~- - - -- - --~-
tt ., tt
.lr.
l
'''c
I,l' l3A'I s,-;
,.,
, ?~ ql '
~ r ~ q/ I Ar~0 -"
" / ~~ t' !
l r. N I
{ - ~ '
I'
f i
'I =C' I
: ~ _ <> ~ ' ~ _ j ~ r - - - - - - ~ - .......i! - - ~ U\ _.!:: '
~- I ~ I I vJ ~ b 1 I V, f
\ L ""\ ....X. ~.. ~
...., '" --l r ...., ~ ..... \" I -< ,':J>
't'- tit ...~ "" 1.1 r' tl-t '-'" l,." i ~
'N" t ~ ....., X IN...! ~
, .... \~ ';;;... ,oJ ,
~ ..v .,. '_ .. I
> l- I ~ J \\'\ tI\ I i
(..l " L _ ~ - ..-- - - - '- - - - -f r
(g r---- 1..- I - I 1'- - I - -.
\ - I. ~ , I' I
r .." t\ ~..... ---, *'"'
~ - - '---t~ S X;,/
N') - - -",;;:, - t-
O iV -\ l""'" I~ ~ ~ N
. ..b -r. ::. I~ r-, I .. ~ :4 'I:,J'I
~ N -..! 6' ~ I ~ -:JIG'
~ , \f ~ ~ -. \>I --{ I P P 0J" . ~-r -=' f" L / ~7 ~ - 'I rJ ...
>< \ _ ~\ ~\ ~ m2../f r J,
-.. ': - oc:;. .....J ....... ' lrl!
I ^ ! """ - 1 C1 '- J\.' 1- ~ I
V. \:i t:J \ ... W ~\J. 1-..1 '
-\ '" '2 .", I '.. \]"I I
....... 1. <i' ;- r;; - - 1, \(\.
~ \ It ~ ~,' f'1t --l or
~ \ -J t 0 -:0
()) , f"'" r- - - - - - - -_l '1'1 <::)
: f"'" ")M.....1 I tJ ()
, I 1':-' ...J \.It ..
\ ('1 rn I't\ ~ ai ~J I
.! ~ .. I ~ V\ K (X) ''I( ~ "-
l' '~ t_ ~ b I ·
~ 1 0 I'" -1 I
"j ': Z ~---..J- _ _ _ --- ~2"~ '- _ --1.
~ i( f )
\ ~ I ,. .
_~ L _ ~_ _ r, Jrf,fM: ~_ _ 1 r. "c. F ~-: ",0
'I !if \ ';.f,;>4f<JT PLPI~-':; /.1;;r~7-H- - __h__
N I
Q ~
.....
.. ~ ~
- _ Q U ~
<.JJN .....
1- -1 4JZO/~O ~ ~
- I
....J lri "" ::: ~ '"'
W I ~ ~H R. CAlI". INC. .
~ 1l:t CIVil '"lIriGl'11UJUNG '~
~ 00 m ~ MUS" AVENUJ: ~~l\
"'" Ij;) 1). VENICE. CA W191-1IJJ '.........._,) /'
Q~ b -
~
,
,
~ e e
~ ATTACHMENT D
."jy ~= ~ . -
MEMORANDUM OPINION NUMBER 91-10 ,....-. -
','
.91 ....... 26 ? J ~-c_
DATE: March 25, 1991 I.J-d.
TO: Paul Berlant, Land Use & Transportation
Management Director
Kenyon Webster, Principal Planner
FROM: Robert M. Myers, City Attorney
Barry A. Rosenbaum, Deputy City Attorney
SUBJECT: Inter~retation of Municipal Code section 9113.3
This office recently received inquiries from the City's
Planning Staff concerning the appropriateness of variance
requests by owners of two properties in the City.
The first project involves two lots co-owned by two owners,
who wish to do a lot line adjustment. The lot line currently
runs through the middle of two single family homes. The
co-owners want to adjust the line to run between the two houses,
with the result that the two houses would each rest on a separate
lot. The owners would each reside in one of the houses. .The
owners have requested a variance because the lot dimensions for
one of the parcels would not meet the requirements of the Zoning
Code.
The second project involves an owner who wants to subdivide
an existing lot. A single family home currently exists on the
lot. The owner plans to sell off or build a single family home
on the newly created lot. The current dimensions are roughly 140
x 50; subdivided each lot would be 70 x 50 instead of the
required 100 x 50.
Santa Monica Municipal Code section 9113.1 et seq.
establishes the bases and procedure for obtaining a variance. As
section 9113.1 provides: "A variance is intended to permit
variations where practical difficulties, unnecessary hardships or
results inconsistent with the general purpose of this Chapter
would occur from its strict literal interpretation and
enforcement."
Under the Code, the only basis for obtaining a variance
from minimum lot size requirements is set forth in Section
9113.3(a). This section provides that a variance may be granted
to II [pJermit modification of the minimum lot sizes . . . as
maybe necessary to secure an appropriate improvement on the
parcel. II (emphasis added) . However, neither of these proj ects
seek a variance to enable them to obtain an appropriate
improvement on their property. Both of these projects already
have improvements on the parcels which are consistent with
- 1 -
D
.
e e
current zoning. Indeed, as discussed, the first project does not
seek to add any improvements to either of the parcels as part of
the lot line adjustment.
It is well-established that a variance is appropriate where
enforcement of a zoning requirement would cause unnecessary
hardship. Section 9113.1; PMI Mortg. Ins. Co. v. City of Pacific
Grove, 128 Cal. App. 3d 724, 731-32, 179 Cal. Rptr. 185, 189-90
(1981); Zakessian v. City of Sausalito, 28 Cal. App. 3d 794,
799-800, 105 Cal. Rptr. 105, 108-09 (1972). Given the existing
improvements on the subject properties, it is hard to imagine how
such a showing could be made herein. Indeed, as stated in
Hamilton v. Board of Supervisors of Co. of Santa Barbara, 269
Cal. App. 2d 64, 75 Cal. Rptr. 106, 110 (1969):
"If the property can be put to effective use,
consistent with its existing zoning, without
the deviation sought, it is not significant
that the variances sought would make the
applicant's property more valuable, or that
they would enable him to recover a greater
income, nor that they would relieve him from
undesired costs in compliance with the
existing restrictions." (citation omitted).
Additionally, even if section 9113.3(a) were somehow deemed
applicable to the projects herein, the required findings of fact
set forth in Section 9113.5 could not be made. This' is
particularly the case with regard to the finding required by
section 9113.5 (k) that: "The strict application of the
provisions of this Chapter would result in unreasonable
deprivation of the use or enjoyment of the property.
Such a finding could not be made for either of the projects
herein since, as discussed, both properties presently have
ongoing economically viable uses -- single family homes. While
it is true that the granting of a variance might increase the
value of these properties, this factor does not provide a legal
basis for the granting of a variance. As the court stated in
Broadway, Laguna, Vallejo Ass'n v. Board of Per. App., 66 Cal.2d
767, 427 P.2d 810, 59 Cal. Rptr. 146, 151 (1967): lI[w]e must be
careful to distinguish . . . between those circumstances which
prevent a builder from profitably developing a lot within the
strictures of the planning code and those conditions which simply
render a complying structure less profitable than anticipated. n
In analyzing a request for a variance, only the former
circumstance justifies a variance request. Id.
Additionally, another required finding is that "there are
special circumstances or exceptional characteristics applicable
to the property involved, including size, shape, topography,
location or surroundings . .. that do not apply to other
properties in the vicinity under an identical zoning
classification." section 9113.5(a). Such a showing cannot be
made with respect to either of the projects herein. This is
particularly so with respect to the latter described project
- 2 -
. e e
,
since a number of parcels immediately adjacent to the subject
parcel are of similar size. Given that the circumstances of
adjacent parcels holders is largely the same, a variance is not
justified. See Orinda Ass'n v. Board of sup'rs, Etc., 182 Cal.
App. 3d 1145, 1166, 227 Cal. Rptr. 688, 701-02 (1986) (necessary
showing for a variance is that IIstrict application of zoning
rules would prevent the would-be developer from utilizing his or
her property to the same extent as other property owners in the
same zoning districtll); Topanga Ass'n Scenic Com. v. County of
Los Angeles, 11 Cal. 3d 506, 520-21, 522 P.2d 12, 21-22, 113 Cal.
Rptr. 836, 845-46 (1974).
Finally, wi th respect to the second proj ect , the subj ect
parcel presently conforms to the City's Zoning Code. However,
the granting of a variance would result in two nonconforming
parcels. There appears to be no planning or policy reason which
would justify this result.
Given the above factors, it would not appear that variances
for either of these projects is justified under Section 9113.3.
mad40/hpadv
- 3 -
----- ---- - --- ----
.. .. tit e
ATTACHMENT E
DAVID GALLENSON
1457 7TH ST
SANTA MONICA CA 90401
213 393-4506
June 7, 1991
Plannlng DIvISIon, Room 212
1685 Main Street
Santa MonIca, Callfornla 90401
Attentlon: Kenyan Webster
Re: WMP 90-001, VAR 90-039
Dear Mr. Webster,
On November 21, 1990, the CIty Plannlng Dlvls10n made a
determlnatlon that the above referenced appl1cat1on was deemed
complete pursuant to the provlslons of Cal1fornla Goverment
Code, Sectlon 65950. The letter deflned the proJect as beIng
encompassed by prelim1nary appllcatlon of NoveIT'ber 6, 1990, the
supplemenatray InformatIon receIved by our offIce on
November 16, 1990, and the proJect plan receIved on that same
date.
Since that date, no action has been taken to approve or deny the
appl1catlon. Pursuant to the provlslons of Government Code
Section 65950 and case law InterpretIng such sect lon, IncludIng
Palmer V. CIty of O:Jai (1986) 223 Cal.Rptr. 542, the applictlon
1S now deemed granted by operatIon of the law.
Please advlse me at your earllest conven1ence of the next step
necessary to complete the proJect.
Slncerely,
"f) . .
.'_ a~~4<< -.------.---
DaVId Gallenson
cc DaVId Shell
Robert Baron
~~
. . e e
,
ATTACHMENT F
-
June 18, 1991
David Gallenson
1457 7th Street
Santa Monica, Californla 90401
Dear Mr. Gallenson:
I am in receipt of your letter of June 7, 1991 concerning Varlance 90-039 and
Waiver of Parcel Map 90-001 in which you contend that these applications are
approved. We do not agree with thi s content ion. Your letter falls to set
forth the fact that you agreed to a continuance of this matter pending
Planning Commission action on a set of staff-recommended amendments to the-
variance section of the Munlcipal Code which if adopted, would increase the
staff's and Planning Commission's flexibillty in considering whether to grant
your request. As I have explained to you, the City Attorney has advised us
that glven the current wording of of the variance section of the Code, at this
time, staff would be precluded from a poslt1ve recommendatlon on your request.
For this reason, you had agreed to put off consideration of your application.
Unfortunately, there have been slgnificant delays in the Planning Commission's
cons lderat ion of the variance amendments; the Commi ss 10n has cont 1nued this
item six times and has yet to hear the matter. I reallze that when you agreed
to delay action on your app 1 ieat 10ns, this length of delay was not
anticipated. In V1ew of the lack of progress on the amendments, we scheduled
your applications for Commission hearing on July 10, 1991.
~- -..,
In rfgards to your content ion that the project is approved by ope rat 100 of
law, we do not agree, based both on your consent to cont ioue the matter
pend1ng Planning Commission action on the variance amendments, and also based
on s!:te law. The public notice and hearing requ1red by State law under the
Perm Streamlinlng Act h~ve not occurred, and you have not prov1ded us w1th
notlce of the intent to provide same.
Please give me a call if you have any quest10ns regarding this matter.
Sincerely,
D. Kenyon Webster
Planning Manager
"
.,
. ef':;
Z p
-~
- e e
-
k/gal
cc: Barry Rosenbaum
Paul Berlant
Susan White
-
----...
I --
.
I
L ~
. e e 8\3
~ Shell & Campbell A TT ACHMBNT G
'- .\rto1'neys at law
..
428 J Stree.t, 5uJte 420 ~407 Wth;hire Blvd. Suite 119
Sacramento. CA 95$14 ~anta ~1onic.ll. CA ~J0403.6800
(916) 444-7388 (213) 393-1864
July 9, 1991
Barry Rosenbaum
Deputy city Attorney
1685 r1a~n street
Santa I-tonica, California 90401
Re: Property at 2039-2045 11th street
variance 90-039t Wa1ver of Parcel Map 90-001
Dear Barry:
On or about November 20, 1990, the Planning Commission's time
limits to take action to approve or disapprove the above
ret~renced development permit began to run. This 1S evidenced by
~he departmentts lette~ and the case file. The six (6) month
time limit to take action to approve or disapprove the
application ran on or about May 20, 1991-
On or about March 20, 1991, Official Notice of PubllC Hearing was
sent out by the Planning Division concerning the above referenced
development permitt setting a public hear~nq date for April J,
1991. This notice was given durlng the six (6) months pet'.l.od
requ~red by government Coda Section 65950.
The hearing noticed by the Planning Division wag net held and no
request for an eKtension of the time limits was given by the
applicant. ?e~ Government Code Section 65950.
On or about June 7, 1991, the applicant wrote to the planning
Department and advised the agency of the requirements of
Government Code Section 65950. On or about June 21/ 1991, the
agency wrote to the applicant and in essence stated that the
agency's position would be that the six (6) months limlt did not
apply or had teen waived by the applicant. Th19 offlce has been
asked to respond.
Firstt the agency's reference to ~he provisions of Government
Code Section 65956 (permlt Streamlining Act) ~s without merit.
:he ~equirement under such section is that notice must be qlven
',.flthin the SiX (6) month perlod if.requir~d. In this case the
requIred notice was given in March, 1991r withln the requlred
tune period. Second, the agency's reference to tr.e conse~t of
the applicant to continue the hearlng is without any merit. The
~ppllcant at no time ever consen~ed to an eXtensLon of the SiX
(,6) month tlme limitatlon, e~ther orally or In wr~ttnq, ~nd. the
appl~cant never consented to delaying actlon on che 3ppl~cation.
~
---- -- --
e e
..
~ ROSENeAu~ LETTER
July 9, 1991
-Page 2-
The reference to an agreement to a "continuance of this matter"
1$ also in error. The notice was sent out after all discussions
had been held between the applicant and the agency concerning the
application. A meeting was held at the City Attorney's office
with the applicant, the deputy city attorney, tne agency, and
myself. At no time during the meeting was there a walver of the
time limits and none was asked for.
The application also would not fall under the rulings In se!lnge~
tv .uCi tV_Counpil ~f ci" t.v Qf_Redlands oX' ;Land_ Hast~_ManaA~rneYl,.~ v.
~ontr~ 99s:ta .----- As - announced in the March- notice, the appllcation
is simply for the adjustment of a parcel line and variance to
allow creation of a lot which is 3t in depth less than the 100'
required by the Code. Under the application, there w~ll be no
development as contemplated in seling~ and there are no
amendments to law necessary to approve the applicatlon.
In short, the agency has scheduled a hearing for July 10, 1991,
on the application which, by operation of law, has already been
deemed approved. If the agency sincerely thought that the
applicant had waived the time limit in order to afford the
planning Commission an opportunity to consider amendments to the
variance section, the agency would not now be proceeding w~th an
expedited hearing and takinq the position that the lack of
progress on the amendments somehow vests authority ~n the agency
to take the action. Instead, the ~qency would have announced its
pO$~tion that a waiver or extension had occurred and waited until
the Planninq commission acted~ It is clear that the agency
simply failed to act and sat on the application. Tho purpose of
the six (6) month time limit lS to prevent this type of delay.
Based upon the facts of this ease, the application was approved
by operation of law and any action now taken by the agency would
be without and in excess of its jurisdiction. !t 18 submitted
that the hearing now set for July 10, 1991, cannot fot~ the
basis, either leqal or factual, to revoke the approval, and that
any action taken on July 10, would be void. My client does not
desire to have to fight the City to have his r~ghts declared.
However, if the City takes action to divest him of that T....hich is
his, he w11l be forced to seek jUdicial relief, ~ncludinq
damages.
Please contact me at your earliest convenience to discuss this
matter.
Sincerely,
S~L & CAMPBjfjf
/ {/~?tMI!Y~
~id M. She.ll