SR-0 (61)LUTH:PS:DKWsb~ Senta Monic~, Ca~i~ornia
K/interp5
Counc~~ Mtg: November 17, 2992
TO: liayor and City Council
FRDK: City Staff
SUSJECT: Appeal o€ Planninq Commission Interpretation of Section
s044.3(e) Reqardinq Parkinq Requirements for Changes of
Use
Appe~lant: ~tayor xen Genser
Thi~ repart sets farth an interpretation of ~on3ng Ord~.nance
Sectian 9044.3(e) r~qardirig parkinq requ~re~ents for cha.nges of
use. Essentially, the interpretatian relates to the ~ol~~~.ng
question: in s~.te~ations ~rhere an exi~ting building r~hich does
nut have ~dequate parlting und~r the present 2oninq ~rd~nance
unde~gQes a ohange af use, when must the pragerty o~ne~r increase
the amount of pa-rkinq ta ~eet the standards o€ the present 8on~ng
4rdinance for the entire pragerty?
2`~e interp~etation has broad app~icatian to a v~riety of
situations, b~t was ~peci~ically generated ~n re~.ation to an
Admin~strative Approval and occupancy Permit for 152o Broadway.
Th~ interpretation af~ects n~eraus changes i~ ~.and use, and
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adoption of a contrary interpretation would have aignif~cant
effects on niueerous land uses, ~nclud3.ng residentiai u$es.
The Zoninq 1ldministratvr and the Gity Attorney's affice da not
concur in how section 9044.3(e) o~ the ordinunce should be
~nterpreted; act~on ar~ thia interpretat~on is ~.etended to provide
reso3.ution of the matter. The 1-ttorney's Olfice providad the~r
own in~erpretatian of the section to the Plann~ng Cam~issi.on
whfch is attached to this report.
The Pl.anning Co~mission concurred with Plannf.ng ~taff'e
interpretata.on af the seotion by a four to t~o vate with one
Ca~issioner absent; the Cammission's ~ction has been appealed to
the Counail.
In makinq the agpeal, the appe~lant indicated that he belf.eved
that *The fnterpretation of the Zoninq adminfstra~or ie cont~ary
to the app~.icab~e prr~v~.sions of the Kun~.c~.pa~ Cade.* ~! detai~ed
explanation of this contention was not provided on the appeal
for~. xo~aever, at the P~anning Comm~Lssion heerf~g on th~ ~atter,
the appe],~ant indic~ted that he supported the reasoninq of the
C~ty Attorney as set ~orth im m~ august 1~. is9Z ~ae~orandu~ (see
attached). These issues are addressed below.
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Section 9044.3(e) ~s part of the introductory provisfons of that
seation of the ~oninq ordinance ~hiah set~ forth parking
requ3r~ments. The section establishes when tha park~ng
requirements of the ordinance apply to buildings if the build~nq~
were deve~.op~Q under different parking gtandards end ~hen there
is a chanqe of use. The section atates as fo3.loWS:
(e) For any new use of an ex~.etinq buildinq or ~tructure
such that the new use wixl require parking spaces, parkinq
spaces in the number specified in Section 9044.4 sI~a11 he
pravided for the entire parcel.
1- copy o~ the Section is included as Exhibit A.
Zon~nc~ ~d~ntinistration staff believes that there fa ~ord~.nq
missing frvm this ~ect~on. Specifica~ly, staff bel~eves the
section was intended to read "...such that th~ ne~ use wtl~
require aore parkinr~ spaces, parkinq spaces ~n the nu~ber
speci~ied fn Sectfvn 9Q44.4 shs~l be provi,ded for th~ entire
parcel." [wardxnq in bold added}, and that the seation ig nat
log~cal unless it is interpreted that such a policy was intended,
~'his interpretatian has lanq standinq in the P~ar~ninq and ~on~ng
Divis~on. In Decemxaer 198~, ehortly after the Zani.ng ordinance
became e~fective, the Principal Planner for current planning
issuefl a~rritten statement to the c~xrrent planning staff o~ hrn+
this secti.on shou~d be interprsted (see Exhib~t 8). This
~.nterpretation has been e~p~oyad sinc~ that time in nw~eraus
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situatiana. ~lthouqh this interpretat~on does not have the game
legal statu~ ae one €fles~ wfth the P~.ann3ng Ca~missfvn, ~.t has
been c~nsistently app~ied by the Planning staff in numerous
s~tuatians, and is aiso consistent with prior practice under the
grev~ous 8oning Ordinance, and with com~aon practice in cther
~urisdiations. Staff believes that the cansistent practice in
~nterprating thi~ sect~vn shou~d be g~.ven weiqht by the Council..
The 1988 interpretation ~as ba~sed on the premise that the sectfon
wa$ intended to apply to cases where the chanqe in use reeulted
in a higi~er parking require~aent (such aB a chanqe in use ~rom
refi.dil to restaurent) . e~ copy cf the memorar~dum contain~nq the
inter~aretation was provided ta the City ~-ttorney's O~fice in i988
foz their infarmat~on, ~t which time no reaponse was given,
Zoninq ~dministr~tion staff believes thnt the sectivn is not
co~plete unless it a~p~ies in situatians when there ~s a change
of use wh~ch results in a higher parking requirement. if read
w~thout th~s ir~teht, the sect~on language is redundant. ~l11 uses
requfre parking spacea under the Zoning ordinance~ thue tihe
phrase '~.,,such that the new use ~ill. req~ire parkinq ~paces...M
is unnecess~r~r if the intent was to r~quire a parking upgrade for
any change of use where existing parking is inadequate. This
~anguage would nat be redundant i~ the intent is understood as
recommended in thi~ interpretation. The appel~ant has argued
that since the Zonit~g Ordinance does not req~ire parking in th~
Downtawn Parki.ng Aggessment District, there are uses s~hich do not
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require p~rking, and therefore staff'~ reasonin~ is invalid.
~'h~s arque~ent ~s flawed for two reasons: first, there is no
parking exempt~on for the Downtown Assessment District in the
~oning Ozdinance (the provi~~ons of the District are expressed in
a separate ordinance), ~nd second, parking fs required in the
!-~e~sment District---but the Parkinq ~uthority, rather than the
property vwner, ie~ required to provide adequ$te park~nq.
The ~act that parking spaces are requi.red for any given use would
not sesm to be ar~tical in determ~ning when an entire parcel
~hould be b~ought up to present-day parkinq standards. 5uch a
requ~rement wouid be substant~al in thet case af the numerous
{probably hundreds) af propertfes which do nat provide as many
parking spaces as would be required for new develagment under the
present Z~ning Ordinance . If one su3te in a hu~.3.df r~g wf th
i.nadequate parking chang~d tenante ta a different use, parking
for the entire site would have to be upqraded, regard~ess #.f the
parking inten~ity a~ measured by the Zoning ~rdinance is not
ahahqing.
Zoning ~,dministr~tion staff be~ieves that the intent of the
section was that parking requirements shou~d change when the
intensity of the use ( as measured by parkf,ng standards for the
oid use ver~us the new usej tncreases, and that the ob~ective of
the requirement was to discourage changes of use which
exacerbated parking prob~ems (su~h as conversion af a retail
spsce to a restaurant3. ~t the time the sect~on was written,
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th~~ was of part~cui~r concern on Montana ~venue and Main stre~t.
T'he pena}.ty for such a change af use (which 1.ntensifies parking
deaiand) is that p~rking for the entire site must be upgraded to
current standa~rds, which ~n tha case of numerous older
properties, wou~d effectively preclude such a chnnqe o~ use since
Iand for added park~ng spa.ces wau~d not be available.
Sup}~artinq the interpretati€~n that the sectton is intended to
apply ta situationa where the change of use result~ in a higher
parking requir~ment is the wordinq o~ Se~tion 9044.2., wh~ch is
the "~pp~icabi~ity" section of the 4ff-Street Park~ng
rsquiremer~ts, precedinq Sectian 904~.3(e). This section states:
Every use or change of use resultinq in a hiqher parking
requfrement...ahs1l prav~de permanently nainta~ned
off--street parking ares~ pursuant ta the ~aravisions of
thfs Sulxh~pter. [E~phasis added~
This sect~.on, which inmediately precedes the s~ction in quest~an,
cl~arly establiahe~ the principle that chanqe~ of ues which
result in a higher park~ng requirement ~ust ~eet current ga-rking
requi.rement~, and not that sr~y change of use results in such a
requirement.
Add~ng further weight to the in~e~rgretation ia the non-canfarsing
use Section 9~80.4(d)(3), relat4ng to when coa~ercial parking
lots on residentia~ land ~ay remain. This sectian states in part
as fol~ows:
...Far purpa~es Af this requirement, a change og use sha~l
be define~ as any new use which requires more intertse
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parking ~tandgrds than exists on the effective date o~
thia Chapter.
This ~ection sgain ~ets forth the cancept of requ~res~ents
~pplyinq whsn the chanqe of use involves more intense parking
standards, as recom=aended 3.n this memorandum. Ci.ty attorney
staf! have correct~y stated that this s~ction is independent af
section 9044.3(e), but Planning staff believes that the conGept
vf this section is directly pertinent to the ~nterpretation
befo~e the Council.
Staff reviewed varioua drafts of the Zaning Ordinance as
bmckc~r4und to this int~rpretation. In the Second Draft of the
ordinance, the section read as follows:
For any new business that ~.ntensifies the use of ~n
~xisting building or structure, parkinq spaces in the
m»~r specified in ~ection 9044.4 ahall be provided ~or
the entire parcel.
It is unclear what the ward "intensif~e~" fn this verBion means,
In trie ~hird Draft of the ordinance issued ~n January ~987, the
Applicabi~.ity section ward~ng ~s identica~ to that ultimately
adapted. Hawevex, the wording of subsection (e) ie a~ foi}.ows:
For any ner~ busines~ that inteneiff.es the use of an
exi~tfng building or ~tructure such that the ne~r uee wil~
requ~.re addit~onal parking under thi~ sectfon. park~r'g
spaces fn the nu~ber specff~~d ~~ Sect.~on 9044.4 sha3l be
~rovfded for the entire parcel.
Without the language ~rhich was ~ined out, the wording of th~
sectian ie fncamplete, and clearly the section d~d not make sense
and needed revisfon.
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In the Fourth pr~ft of the ord~nance, the section read:
For any new use ~~ an existinq buildinq or structure ~uch
that the new use will require parking spacas in the nu~~r
specified zn Section so44.4 shall be provided for trie
entire parcel..
This section also is incomplete ar~d does not a~ake sense as
written.
By the time the Fifth Draft of the ~oning Ordinance was
develop~d, the wordinq of the sectia~ had evolved to the adopted
languaqe, Zoninq ~idmini$tration staff believes that in the
process of refining the ~.anguage of the sectian, the f~real
wording did not adequately expr~es~ tha City Counc~.l's int~nt,
which was tc~ appiy t,he require~asnt w~en the new use had hig~er
parkinq requirements.
~rt alternate interpretatian would he that the Counci2
de~fberately adopted tl~ie languaqe in quest~.on, and that the
1egf~lative history illustrates the~r intent. However, Zaning
hdministrat~an $taff be3iewe~ that this section needs to be re~d
in con~ur~ction ~aith the other sectiona of code ci~ted ~n thi.e
m~m~oraredu~ {the "~ppYicab~~ity* ~ection, and the *Non--canfor~inq"
aeation), as well as ~~th an understanding of th~ p3ann~nq
principles which motivate the sect~an, and when this kiad of
broad vie~ of the section is taken, the most ].aqical
interpretatian is that the se~tion applies when t,he change of us~
invalves a nsw ~se wfth higher parking requ~re~ents.
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a contrary intergretation of th~.s section to that offered Dy the
Zoninq Administr~tfon staff would have signifia~nt i~giicatfons,
As applied currently, change~ of use ~nvalving permitted uses
Which have identa.cal parking requirements as compared to the
former use do not tr3.gger the requirement that th~ entire parce~
be brouqht up to current parking requfrenenta. This seens
appropriate~ slnce ti~e perkinq iritensity o~ activity an the
parcel would not chanqe, as ~easured by cade require~ents.
For example, under Zoainq Administration staff'~ interpretation,
a change of use in ons suite of a building fra~ office
(requirement of i space/30o sr~, ft. of floor area) to xetai~.
(aisv ~./3Q0 requirement~ wouid not triqg~r upgradinq of parking
~or the entire parcel. L~.kewise, e ch~nge o#' use froa~ indu~trial
to art ga~lery space would not trigqer the requiresent, since
both u~es have tiYe same 1/300 prxrking $tandard.
Under the ~oni.ng Adm3.niatrator interpretation, a chanqe of use to
a business with a hiqher parkfng standard (far exa~ple ~rom
retail at 3.f300 to restaurant a~t 3/75) wauld trigger the ugqrade.
The City I~ttorney wa~3.d ~-pply the park~ng upgrade requiresent to
~y change of use at a s~.te ~here there is inadequate garking.
This would penalize changes af use which aotual].y reduce parking
de~and, for example, s change of use fran batr t~se (at 1/50) to
restaurant use {at ~/75), requ~rinq upgrade o€ park~nq an the
entire parcel when parkinq demand i.s decreas3ng, and in ef~ect
discouraging such a de~-intensification of use. Thie seems
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contrary to qeneral pkanning principles and the objectives of the
Zoninq ord~nance. If adopted as an #nterpretatfon, this would
like~y force the ~aintenance of nigher-intensity uses, the
redevelop~ent of the praperty and the removal of o~der buildinqs,
or the need to apply far a parking variance.
The interpretation of th~~ section Iikely affects hundreds of
properties in Santa Monica, $ince mo~t existing buildings were
not dev$ioped under current parking ~tand~rds, and in the
nan-resident~al zaneg, a~ultipl~cfty of uses are ~ermitted. Tlie
range of si.tuations af~ected wou~d depend upan the a~eaning given
to "change of use." If the "chanqe of use" term fs na langer
interpreted on the baffiis of parkir~q intensity, an interpretation
would be needed as to what types of chanqes ~ere "chanqes of
use." For example, changes of use could include such broad
categories as "co~erc~al~~, "residential", and '~industriai*, or
there could be finer-grained distir-ctions such ats "retai~#,
"affice", "restauErant", ~sing~e-Pamily residential",
"~u~ti-famiiy resi.dentinl", etc.
Ig a broad i.nterpretati4n of "chanqe of use'~ were adopted, the
secti~vn would fail to apply to a chanqe of u~e f.nvolving a change
from retai~ to restaurant, since both are "co~meraial" uses. In
that particu~ar ex~ap~.~, this would faci].itate the chanqe to a
more parkfng--intense use, ~h~ch ~oning ~dmin~stration staff
bel~.eves is contrary ta the section's ir~tent. If a~iner~-grained
approach to de~ininq "chanq~ ot use" is emp~oyed, and if one lOflO
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sq. ~t. suite in a 5~,000 sq, Pt. buildinq not meeting current
parking standards changed ~rom an office to a store, parking for
the entire parce~ would have ta be upgraded ta current at~ndards,
even though the change of use wou~d not chanqe parkinq demand, as
establ~shed by the Zon~ng ordinance. ~his would se~m to be
contrary to the general princ~ple of ~qr~ndparenting" since the
parkfng demand a€ the net~ use is the same as the for~er use,
resu~tinq in no change in the parkinq needs at the site.
Related to the issue is hnw Subchapter 9, "Nonconforming
Bui~dinqs and U~es" of the Zoning Ordinance interacts with this
interpretation. Sectian 908E1.3 af the Ordinance defines "legal,
nonconformi.nq" uses, and subsection (b} o€ that sectian indicatea
that;
If a Zegal, noncanforming use ceases operation for a
continuous pexi.od of six months or sore, that use shali
lose its legal, nonconforming status, and the premises on
whic~ the con€arming use took place sha3.1 from then on be
usec! for cvnforminq uses anl~...
The appe3.lant and City ~,ttorney staff have in~icated that they
3~~i.eve this section requires a parkinq upgrade if a u~e w~.thin a
buflding ~ith ~nadequate parking spaces is ceased for six ~onths
or 3aore. Pl~nning staff does not concur, and #~elieves that this
aection governs ~, and not the physical elements of buiidfng~3,
such as parking, floor area, or setbacks. There are separate
sect~ons, in some cases with timelines far co~~~iance with
current stans~ards. gavernir~g nancQnfor~inq build~ng~. Thi$
sect~on has never been interpreted by P~.anning staff to require
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bufldinqs wh~ch have besn empty for six months or more to ~eet
current physica~ development standards (i.e., $ resident~al
building with sideyards ane ~oot short of current require~enta
having to be de~olisherl or remodeled to ~eet current standards
where such building has been unoccupied for six ~onths vr ~or~).
Follo~inq through with the agpellant~s and City ~ttorney's
~nterpret~tion would resuit in potentially devasteting
Gonseq~ences to aI~ types o~ iand u~es in the C3ty, 3ncZuding
housinq. For example, a single famiiy home with Iess than two
parkinq spaces ~hich was unoccupied ~or six ~onths or ~rore could
nvt be reoccupied without current cade parking laeinq gronided, or
an apart~ent in a re~idential bufiding with inadequate parking
which was empty for sfx months or mere couid not lae occupied
un}.esa code garking was pravided for the bni~.ding. Sf~ilariy, ~f
a reta~l space ~n a bui~d~ng laaking fu3.l code parking ~ras e~apty
for six month~ or more, the space could not be leased to any
business unless code parkfnq were provided. Particularlp ~n a
difffcu].t econa~y, ~.t is not unusua2 for residentia3 or ~ther
types af properties to be unoccupied far six aonths or more Mhile
an agpropriate buyer ar tenant is sought. The reaults of
~o].iow~.ng the City attorney's ~nd appe~iant's interpretation an
thia issue wauld i~ke~y reduce the availabi~ity of hausing as
wel~. as p~aces r~here business aou~d be cr~nducted, in aaatt~an ta
having ~ic~rtifica~t advers~ impaets on progerty owner~, and
potential~y the City itself throuqh reduction~ in revenues from
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utility taxes, business ~~cense ~ees, seles taxes, and other
sources. Pianning ~taff beiieves that these outcomes would be
undes~rable, are not consistent with the overall ~ntent of th~
~aning Ord~nance, and that the interpretation ~hich wauld ~end to
these can~equences ia incons~.stent with ths specific proviBior~s
of the ordinance,
~n discussion of this issue at the Pxanning Commissfan, the
appellant indfcated t~iat so~eone in this situation could apply
far a variance ~rom hav~ng to prov~de fuil code parking in the~e
types of situations. Hawever, the variance proce~g typically
takes two to three months to camplete (assuming no agpeal, which
~oould add two to three ~dditianal mvnths to the process), and can
entaik not insignificant expense {for the fi~.inq fee, preparation
af notffication lists, and in some cases leqal and architectural
services), F111811yr emp~oying the interpretatian adopted by the
Planning Commisston wou~d elimi.nate the need for any suoh
variance.
Council Authoritv
Under Section 9~4~.3 of the ~oninq Ordinance, the Zoning
~idninf.strator m~y ti}.e a r~rritten ~nterpretation wi.th the Planning
Cvmmiseion. The interpretation becomes effective 14 days from
the date the item appearffi on the Cvm~issfon's agenda unle~s
changed by the Commissian by its own actian or on appea2. Any
person may, withi~ the 14 day pe~iod, appeal the fnterpretation
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to the Commission. I~ such appeal is fil~d, it is requfred to be
hesrd w~thin 60 dayQ. ~rxy action o~ the Com~is~ion on
interpretations may be appealed to the C~ty Counc~~. In thi~
case, an appea~ ha~ been f~~ed and a f~na~ deter~fnation on the
inte~pretatian ~oday be made by the City Council.
Bud~etfFinsncial Imoact
T~e reco~a-mend~tion 4f thia repart wou~d not have budqet or
financiai i~upacts. A Contrary conclusion could have an unknown
financial impact on the Ci,ty by making unuseable, except at
considerabie ~xpense, buiidings which do not a~et current parking
standards.
it is respectfu2ly recommended that the City Cattnci~. reje~t the
~ppeal, and adopt the Planning Ca~mission's interpretation that
Sectian 9044. 3( e) appZiea when the chanqe of use in~-oi~eB a new
use with ~ higher park~.nq requirament than the former use.
Prepared by: Pau~ V, Berlant, LUT~t ~irector
D. ICenyon webster, aating 8on~ng ~dainistrator
Exhibit A: Municipal Code Section 9044.3(e)
Exhibit B: December 29, 1998 Principal Planner Nemorandus
Exhihit C: Municipa~ Code Seetion 9080.4(dJ{3)
Exhibit D: Auqust 12, 1932 City Attart~ey apinian
Exhi.bit E: August 2b, k992 Appeal
E~chibit F: August 19, 1992 Letter ~rvm ~3onaid Ne].gon
Exhibit G: Auqust 17, 2992 I.etter trom Christapher Hs~rdinq
~xhfbit H: P3anning Cammission Minutes, auc~st 19, 1992
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A T~'A CI-~ME~" 1~
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«
t CA:MHS:pkgord2/hpadv
City Council Meeting 12-35-92
OR~INANCE NUMBER
Santa Monica, California
(City Councii Series)
AN ORDINANCE OF THE CYTY COUNC~L ~F THE
CITY OF SANTA MONICA ESTABLISHING PARKING
REQUIREMENTS F~R CHANGES OF USE FROIri
RESIDENTIAL TO CDI~iERCIAL OR INDUSTRIAL USES
ON AN INTERIM BASIS AND DECLARING
THE PRESENCE 4F AN EMERGENCY
THE CITY C~UNCIL OF THE CITY OF SANTA M4NICA DQES ~RDAIN AS
FOLLAWS :
Sectian 1. Findinqs and Purpose. The City Council finds
and declares:
(a) Numerous existing CpmmE'.x'Ckd1 and industrial uses in
the City do not prov~.de parking in the amount required by the
City's current zoning standards {hereinafter "code par~ing")
because such uses predate the current zaning ordinance and
constitute legal non-conforming uses, which results in a laok of
parking for commercial and industrial uses.
(b} The City has initiated the process to amend Part
9,04.1a.08 of the Zoninq Ordinance concerning off-street parking
requirements (hereinafter "Parking Amendments") to provide, amanq
other things, that pro~ects which invalve changes af use from
residenti.al tn commercia~ or industrial uses provide code parking
for the entire parcel. The Planninq Cammission of the City of
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! (f) The potential for the appraval of projects which
involve a chanqe of use fr~m resident~a~ uses to cammerciaZ or
industrial use without requiring code parking for the entire
parcel poses a current and immediate threat to the public health,
safety, and welfare of the residents, and the approval of permits
far such de~elopment would result in a threat to public heaZth,
safety, and welfare by exacerbating the existinq parking and
residential housing scarcity in the City.
SECTION 2. Interim Zoning.
The Pianning Commission and City staff are directed
to disapprove all requests for the issuance o€ kauil.ding perma.ts
and tentative maps, tentative parcel maps, administrative
approvals, deve~opment review permits, conditional use permits,
or any other City permits for prajects whzch involve a change of
use from residential use to commercial or industrial use unless
parking spaces in the amount specified in Section 9.04,10.08.04a
of the Zoninq Ordinance are provided for the entire parcel.
SECTIDN 3. Applioability.
This ordinance shall not apply to any project the
application far which was deenEed complete before December 15,
1992. -
SECTTON 4. This Ordinance shall. be of no further farce
and effect 45 days from its adoption, unless prior to that date,
after a public hearing, noticed pursuant to Santa Monica
Municipal Code Section 9.04.20.22.050, the City Cauncil, hy
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cause the same to be published once in the off~cial newspaper
within 15 days after its adoption. This Ordinance shall became
effective upon adagtion.
APPROVED AS TO F~RM:
Jd EPH LA NCE
A ing City Attorney
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