SR-9-A (105)
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· 9-A
LUTM:PB:DKW:SLjAdelaide.pcword.plan
Council Mtg: April 23, 1991
Santa Monica, Calilithi4. j ; j~l
TO: Mayor and city council
FROM: City Staff
SUBJECT: Request for Use of the Subsurface of Adelaide Drive for
a private subterranean Garage by the Owners of 339 and
345 Adelaide Drive
INTRODUCTION
This report presents information regarding the preliminary
request to permit the subsurface use of Adelaide Drive abutting
339 Adelaide Drive for the construction of a private subterranean
garage for the benefit of the property at 345 Adelaide Orive.
BACKGROUND
The property owners, Terry Sanders and Frieda Mock, are
requesting that the City Council review and grant preliminary
approval of their request to use a subsurface portion of the
public street, Adelaide Drive, abutting their property at 339
Adelaide Drive for construction of a subterranean garage. The
proposed garage would be used in conjunction with completion of a
single family residence at 345 Adelaide Drive. The preliminary
design provides the driveway access on 345 Adelaide Drive with
the driveway ramping across and down the property towards the
west, leading into the subterranean garage, proposed to be
located beneath the street approximately ten feet below grade,
abutting the property at 339 Adelaide Drive.
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The subject site is located on the border of Santa Monica and Los
Angeles on the north side of Adelaide Drive at the terminus of
Fourth street. Approximately the front ten feet of the property
is wi thin the City of Santa Monica with the remainder of the
property falling within the City of Los Angeles. The parcel
currently has a partially constructed single family residence en
it, the framing of which rises approximately twenty (20) feet
above the street level. This development has been the subject of
various City of Los Angeles actions, as well as litigation
between neighbors. The outcome of these actions is unclear as
relates to development at 345 Adelaide Drive because/ although
the current code does not allow buildings above the level of
Adelaide Drive, the existing, partially completed residence did
have building permits {now expired). It has been suggested that
only litigation will clarify whether the new code provisions
would apply to the height limit of the parcel. It has been
proposed by the current owners of 345 Adelaide Drive that, if
allowed to locate the garage below the street, they will remove
the portions of the building which are now higher than the street
level and would agree to maintain a height limit consistent with
the current code (no higher than the level of the centerline of
Adelaide Drive).
ANALYSIS
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City of Los Angeles Zoning
The city of Los Angeles building permits for the remodel and
The
expansion of the residence were issued in 1985 and 1986.
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property currently has a Los Angeles zoning of RI-I-O with a liD"
overlay which restricts the maximum height to the centerline
street level of Adelaide Drive. staff has consulted with the Los
Angeles Department of Building and Safety regarding the
grand fathered rights of the existing, partially completed house.
Without specific plans to examine, a specific answer could not be
given. However, it was determined that if the existing structure
does not meet current code and the building permits to build what
has been built have expired (as it is believed they have for the
unfinished residence), the Building and Safety Department would
not typically approve permits to complete the building. Thus, as
the situation is understood, since the building permits have
expired and the city of Los Angeles has added a height
restriction which limits the height of buildings to no higher
than the level of Adelaide Drive, the Building and Safety
Depratment would not issue a perroi t to complete the house as
designed.
City of Santa Monica Zoning
The front portions of the properties at 339 and 345 Adelaide
Drive within the city of Santa Monica are zoned Rl. The proposal
as designed (see Attachment A) does not comply with the city's Rl
development standards in three regards. First, Code section
90l0.6(h) requires that no more than 50% of the required front
yard area, including driveways, shall be paved. The proposed
plan would result in approximately 83% of the front yard area
within City boundaries being paved.
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Second, on January 9, 1990, City Council adopted Ordinance Number
l508 (CCS) prohibiting any subterranean garages or basements in
the Rl zone to project beyond the footprint of any structure into
required front, side or rear yard setbacks. The proposed
subterranean garage would be in clear violation of this
ordinance. The city Council extended this Ordinance at the
meeting of April 16, 1991.
The third manner in which the proposed subterranean garage fails
to meet Code requirements is that it is an accessory building
located within (and beyond) the front yard. Code Section
9040.10(a) requires that an accessory building be located within
the rear half of the parcel.
The current zoning code does not provide an avenue for the
application of a Variance of any of the above restrictions.
Discussion
The proposal involves the use of approximatelY 600 square feet of
land underneath Adelaide Drive at the end of Fourth street. The
property owners would access their driveway via an existing
easement along the frontage of the lot adjoining 345 Adelaide
which the applicants also own. The applicants state that they
want to satisfy neighbors' view concerns while maintaining the
square footage of the proposed house by eliminating the at-grade
garage.
General Services staff has performed a preliminary review of the
proposal and has found it may be feasible to allow the property
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owner to use land under the street if it is necessary to enhance
other homeowner views by limiting driveway access. If the
easement is granted, some utilities will need to be relocated at
the applicant's cost. There are precedents for both
subterranean, as well as surface easements, for adjoining use by
property owners. The parking for Champagne Towers on Ocean
Avenue is one such subterranean easement on Ocean Avenue. There
are numerous surface easements on Ocean Avenue and the Third
Street Promenade. However, if granted, staff would recommend
that the city council stipulate that the granting of this
easement does not set a precedent for future development which
could be construed to allow a greater level of development
because of the added utility of the space below a public street.
Legal Implications
The proposed subterranean garage is designed to extend across the
centerline of Adelaide Drive onto property apparently owned by
the fee owner of the lot on the southwest corner of Adelaide
Drive and Fourth street. Assuming that the subsurface use of the
street does not interfere with requirements for public utilities
or the pUblic's rights, an appropriate agreement would need to be
reached with the fee owner of this property. A more thorough
discussion of the legal ramifications of the proposal is provided
in the attached City Attorney Memorandum Opinion Number 91-6
(Attachment B).
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Nei9hbor~ood I~put
The construction of a subterranean garage rather than one at
grade has received the apparent support of some surrounding
neighbors. Res idents of thirteen properties, ranging from the
200 to 600 block of Adelaide Drive, in addition to the
applicants, have signed a petition favoring the proposed
construction beneath the public right-of-way (Attachment C).
BUDGET/FINANCIAL IMPACT
There is no budget/financial impact.
CONCLUSION
Staff believes that development should meet its parking and other
ancillary needs on-site and not rely on solutions such as is
proposed. Further, staff has been led to believe that, absent
extraordinary circumstances, the Olimers of 345 Adelaide Drive
would have to submit plans conforming to current Los Angeles city
code in order to complete the residence. Therefore, it is
expected that the height will ultimately have to be reduced to no
more than the level of Adelaide Drive.
RECOMMENDATION
For the aforementioned reasons, staff recommends that the Council
not approve the request to utilize the area below Adelaide Drive
for private use, due to conflicts with the city zoning ordinance.
Should the Council wish to approve the request, it must first
direct staff to prepare amendments to the Code to allow for a
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variance of the appropriate zoning sections and the ordinance
restricting subterranean garages in the Rl zone. However, staff
does not recommend this action.
In addition, staff recommends
that, if approved, a deed restriction be placed on the property
as a condition of the sale of the easement, stipUlating that no
portion of the building be allowed above the level of the
centerline of Adelaide Drive and that no roof deck or roof
parking be permitted.
Prepared by: Paul Berlant, LUTM Director
D. Kenyon Webster, Planning Manager
Shari Laham, Senior Planner
Planning Division
Land Use and Transportation Management Department
Attachments: A. preliminary Plan of subterranean Garage
B. Memorandum Opinion No. 91-6
C. Petition from Neighbors
D. Article from L.A. Times, dated llj29/90
E. Photographs of Project Model
SL
PC/Adelaide
04/18/91
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MEMORANDUM OPINION NUMBER 91-6
DATE:
March 12, 1991
TO:
Mayor and City Council
Robert M. Myers, City Attorney
FROM:
SUBJECT:
Use of Subsurface of Adelaide Drive for Private
Garage by Owners of 339 Adelaide Drive
The owners of property at 339 Adelaide Drive have requested
Ci ty approval for the construction of a private garage under a
portion of the public street abutting their property. This
memorandum discusses the legal issues raised by such a request.
1. property Interests in Subsurface of Adelaide Drive.
Most public streets in the City of Santa Monica are not owned
in fee title by the city. Generally, the ci ty only has an
"easement for right-of-way purposes of travel, with such incidents
as were appurtenant or necessary for reasonable enjoyment,
construction, or maintenance." 37 Cal. Jur. 3d S 61, at 167
(1977). The property owner abutting the street generally owns the
fee title to the centerline of the street. (Civil Code Sections
831j 1112.)
The rights of property owners abutting a public street were
described by the California Supreme Court in Coleqrove Water Co.
v. City of Hollywood, 151 Cal. 425, 90 P. 1053 (1907):
The right of the abuttlng property owner is,
of course, always subordinate to the rights of
the public. . . . In cities it is customary
to devote not only the surface of the street
and the space above the street to public use,
but the municipality may, and frequently does,
occupy the soil beneath the surface for the
accommodation of sewers, gas and water pipes,
electric wire, and conduits for railroads.
Where the city undertakes to occupy the space
above or below the surface of the street for
any purpose within the scope of the public
uses to which highways may be put, the use by
the owner of the fee must yield to the public
use. Id. at 429-30, 90 P. at 1055.
See Hayes v. Handley, 182 Cal. 273, 187 P. 952 (1920)j Abar v.
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Roqers, 23 Cal. App. 3d 506, 100 Cal. Rptr. 344 (1972).
California cases have held that abutting property owners may
continue to use the surface below pUblic str.eets so long as their
use does not interfere with the pUblic's paramount rights.
Coleqrove Water Co. v. City of Hollywood, 151 Cal. 425, 90 P. 1053
(1907) (constructing private water pipe under street); Wriqht v.
Austin, 143 Cal. 236, 76 P. 1023 (1904) (private property owner
retains water rights to water under public street); Hirsch v. James
S. Remick Co., 38 Cal. App. 764, 177 P. 876 (1918) (abutting
property owner may construct vault under pUblic sidewalk). As the
court stated in Abar v. Roqers, 23 Cal. App. 3d 506, 100 Cal. Rptr.
344 (1972):
As the owner of the fee to the street's
center, the abutting owner may make any use of
the street consistent with the public right.
It is said that subject to the pUblic
easement, he [or she] may exercise all "rights
of dominion over his [or her] land, U and he
[or she] is entitled to "all profit or
advantage which may be derived therefrom." Id.
at 512, 100 Cal. Rptr. at 348, citinq Santa
Barbara County v. More, 175 Cal. 6, 10, 164 P.
895, 897 (1917), and Gurnsey v. Northern Cal.
Power Co., 160 Cal. 699, 705, 117 P. 906, 908
(1911) (citations omitted).
From a property law perspective (as distinguished from a
zoning perspective), an abutting property owner would have the
right to use the subsurface of the street for a private garage so
long as the garage did not interfere with the paramount rights of
the public. Assuming that the city determines that there is no
interference with public rights and assuming there were no zoning
restrictions, the abutting property owner would have the right to
construct the garage without conditions being imposed by the City
such as the paYment of money or imposition of other restrictions.
U[T]he owner is not seeking a privilege, to be granted or withheld
by the city. He [or she] is merely exercising one of the incidents
of the ownership which, in dedicating the highway, he [or she] has
retained to himself [or herself].1t Coleqrove Water Co. v. City of
Hollywood, 151 Cal. 425, 90 P. 1053 (1907).
Assuming that the use of the subsurface of the street for a
garage does not interfere with the pUblic'S rights, the plans show
that the proposed garage extends across the centerline of Adelaide
and onto property apparently owned by the fee owner of the lot on
the southwest corner of Adelaide and Fourth Street. 'rhus, were the
garage to be built as planned, an appropriate agreement would have
to be reached with the owner of this property.
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If the garage is constructed under Adelaide, the property
owner runs the risk that the city will determine at some future
date that the property is required-for public purposes. If such
circumstances arise, the city could require the relocation of the
garage without compensation.to the property owner. We are unable
to find any authority that would allow the city to contract away
the pUblic's rights in this street.
In Fallon v. city & County of San Francisco, 44 Cal. App. 2d
404, 112 P. 2d 718 ( 1941), San Francisco reduced the width of
certain sidewalks on Market street. The plaintiff owned a private
hotel which had a basement that extended to the curb line of the
street. San Francisco ordered the property owner to reduce the
size of the basement to conform to the new curb line resulting from
narrowing the sidewalk. The court rejected the property owners
challenge to the reduction of the sidewalk:
[A]ny right of abutting owners to use the area
beneath the surface of the streets is
subordinate to the paramount right of the
public to make any reasonable use of such
area. There could therefore be no taking of
property of the abutting owners resulting from
the reduction of the width of the sidewalk as
provided in said ordinance. 112 P.2d at 719.
2. The zoninq Ordinance Prohibits the Construction of a
Garaqe Under a Public street in a Residential District.
Under the City'S Zoning ordinance, a
constructed in a residential district under
Accordingly, the Zoning Ordinance would have to
to permit the construction of the garage.
garage cannot be
a public street.
be amended in order
Municipal Code Section 9040.10 provides in relevant part:
No accessory building in a residential
district shall be erected, structurally
altered, converted, enlarged, moved, or
maintained unless such accessory building is
located on the parcel in conformance with the
following regulations. Accessory buildings
shall include greenhouses, storage sheds,
workshops, garages, and other structures that
are detached from the main building.
(a) The accessory building shall be
located on the rear half of the parcel and
shall not extend into the required side yards.
(b) The accessory building may be
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located in a required rear yard, but shall be
at least 5 feet from any parcel line.
(f) Where the elevation of the ground at
a point 50 feet from the front parcel line of
a parcel and midway between the side parcel
lines differs 12 feet or more for the curb
level, a private garage, not exceeding one-
story nor 14 feet in height, may be located
within the required front yard, provided every
portion of the garage building is at least
five feet from the front property line and
does not occupy more than 50% of the width of
the front yard.
Pursuant to l.funicipal Code section 9040.10, an accessory
building must be located at least five feet from any parcel line.
For purposes of the Zoning Ordinance, a "parcel line" is defined
as 11 [t ] he line of record bounding a parcel which divides one parcel
from another parcel or from a public or private street or any other
public space." Municipal Code section 9000.3. Thus, since the
public street is beyond the parcel line, no accessory building can
be located under a public street in a residential district.
In addition to an amendment to the Zoning Ordinance, other
land use approvals may be required in order to build the garage as
planned. In order for the property south of the centerline of
Adelaide to be used for the garage, a fee interest in the property
may have to be conveyed to the owners of 339 Adelaide. (The Zoning
Ordinance generally permits development on two separate properties
only if the properties are under common ownership. Municipal Code
section 9002.l(g).) This may require action under the Subdivision
Ordinance, such as a lot line adjustment. We have not fully
analyzed the legal implications of attempting to transfer a portion
of the fee interest underlying a City street.
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We are resldents of Adelalce Drlve.. We support the
HOCK/SANDERS appllcatlon to the Clty cf Santa ~!onlca to
place the garage for 345 Adela~de underneath the
l:1tersectlon ox 4 th Street. a:".a ?delalde, as per the ar:tached draw~ng.
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Homeowners'
Santa Monica
View Prevails
. Housing: Neighbors stop an
Adelaide Drive remodeling project
that would have blocked their vista.
By JULIO MORAN
Tr\tCS STMF WIU n I(
After nearly four ye"r~, a group oi homeowners
can officially declare victory In theIr fight to stop a
neighbor's remodehrl~ project that would have
blocked ocean and canyon views on scenic Ade-
laide Drive on the Santa MOnlca- Los Angeles
border
A S,mta MOnica Supenor Court Judge earher thiS
month released a SS5,OOO bond put up by the
Adelaide Dnve Homeowners Assn In 1986, when It
ftled SUit to ~top Peter Olmstead from remodeling
rls home at 315 Adelaide Drive The graun was
required to post the bond to cover damages In case
It lost the SUit
The release of the money W<lS the last legal step
tn the fight, whIch began Dec 10, 1986
Roger JOll Diamond, an attorney representing
the homeowrcrs. Said the :"uccessiul fight was
,sLgmflcant because If Olmstead had been allowed
to enlarge hiS house so as to block hiS neIghbors'
Views, It may have opened the way for others to do
It.
The house IS next to a publIc stairway of nearly
200 ~teps conncctmg Adelaide Dnve to Entrada
Dnve, and both the stairway and Adelaide Dnve
are used by many Joggers In the area because of
tl1.e panoramic view oi the PaCIfic Ocean and Santa
Momca Canyon
"The big worry was that If one hou~e went up
above what IS now considered one of the
most beautiful streets III Los Angeles-not only for
reSidents but for VISitors-this scenIC dnve would
have turned mto an alley," Diamond said "Resl.
dents would have had to face the rear portIons of
people's houses, and It would have rumed 11lC
>;treet "
Olmstead received bUlldmg permits from the
city of Los Angeles on Oct. 1, 1986 NeIghbors
camp lamed when they realIzed that he planned to
bUIld above the street level, which they said was
prohibited by a 1961 7.onmg ruling that limited the
height of some hillSide houses to no more than five
feet below Adelaide Drive
The frame of Olmstead's house IS bUIlt mto the
hillSide between Adelaide Drtve and Entrada
OlIve AlthoUJ;l'h most 01 the wood frame IS below
Adelaide Dnve, a steel gIrder flses about 20 feel
above the street
City offiCIals ISSUed a stop-work order on OcL 21,
1986. but Olmstead Ignored It ReSidents filed SUIt,
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CASSY COllEN I Los Angeles flmcs
Attorney Roger Diamond In front of Adelalde-
Drive remodeling job he helped brmg to a halt.
and the courts Issued a temporary restrammg
order blockmg constructIOn until a city zonmg
admmstrator heard the case
The hearmg was held Dee 16, 1986, and on Jan
8. 1987, the administrator ruled that the height
limIt was valId. Olmstead appealed the deCISIOn to
the city Board of Zomng Aopcals, and the
neIghbors receIved a prehmmary mJunctlOn to
prevent Olmstead from gOing forward wnh the
remodeling durmg hIS appeals, all of which he lo,>t
Olmstead, who could not be reached for com-
ment. was also flghtmg a separate laWSUIt flied by
a couple who live next-door to the house Terry
Sanders and hIS Wife, Frelda Mock, had filed SUIt In
August, 1986. chargme Olmstead wllh encroachmg
on a drIveway easement they needed to get to thClr
home.
In 1987, the Court ruled an favor of Sanders and
Mock. Olmstead appealed the deCISion, but lost
TrIal for damages was scheduled for October of
thIS year, but a settlement was rcached In
September
As part of the sett.!ement, Olmstead agreed to
sell hiS unfmIshed house to hIS neighbors Accord-
109 to property records, the unfmlshed hou'ie sold
for $900.000
"I feel great," saId Sanders "ThIS IS hke
recovermg from an afflictIon"
Sanders saId he plans to flOlsh the house and sell
It, but has agreed not to bUild above street level
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