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SR-400-006 (7) . . e-e DEe 1 3 \98~ 400-00'- CjED:SF:Dez Council Mtg: December 13, 1988 Santa Monica, California TO: Mayor and City council FROM: city staff SUBJECT: Recommendation to Amend the zoning Ordinance to Permit Residential Projects with Vesting Maps to be Reviewed Under the provisions of the Prior Zoning Ordinance. INTRODUCTION This report recommends that the City council direct the City Attorney to amend the current Zoning Ordinance to permit residential projects with vesting tentative maps filed between April 29, 1988 and July 28, 1988 to be reviewed under the provisions of the prior Zoning Ordinance. BACKGROUND Prior to issuance of Memorandum Opinion Number 88-21 by the city Attorney on September 15, 1988 (see attachment), planning staff had interpreted SMMC Section 9325(e)-(f) to "grandfather" vesting maps under the old Zoning Ordinance standards. Based upon this interpretation, developers of projects with vesting maps who sought advice from the Planning Division prior to the adoption of the Zoning Ordinance were advised that they could design their project under the old Zoning Ordinance standards. The City Attorney, however, determined that based upon the language of the new Zoning Ordinance, and in the absence of a text amendment, vesting maps filed after April 28, 1988 had to - 1 - B-c Ut.\.. 1 j ljSa . . comply with development standards contained in the new Zoning Ordinance. This has resulted in significant difficulties for applicants with vesting map applications who information provided by Planning staff. relied on In order to permit vesting maps applications to be considered under the provisions of the previous zoning Ordinance, a text amendment to the Zoning Ordinance is required. On October 5, 1988 the Planning Commission approved a resolution of intention and on October 19, 1988 conducted a noticed pUblic hearing on the following Zoning Ordinance Text Amendment: section 9002.2 (f): Vesting Tentative Maps. Any residential proj ect for which a vesting tenta ti ve map was filed and deemed complete in accordance with Chapter 3 of Article IX between April 29, 1988 and July 27, 1988. The amendment is intended to address the understanding of developers of several residential projects designed to the standards of the former Zoning Ordinance that the new Ordinance contained provisions "grandfathering" them, based on discussions with Planning Division staff. Two proj ects on appeal to the Council at its December 13 meeting are in this situation and are the subject of separate staff reports. Three members of the public spoke in support of the amendment, and following the public testimony, the Commission unanimously approved the amendment with the modification that the effective date be changed from July 27 to July 28. This change was requested by the applicant of the 22 unit El Tovar condominium project which was filed on July 28, 1988. The July 27 date - 2 - . . originally proposed by staff represents the date of the City Council's first reading of the new Zoning Ordinance. since the intent of the amendment is to grandfather condominium applications that were filed prior to first reading of the new Zoning Ordinance and subsequently deemed complete, staff is recommending the following as an alternate to the language adopted by the Planning Commission: Section 9002.2 (f): Vesting Tentative Maps. Any residential project for which a vesting tentative map was filed between April 29, 1988 and July 28, 1988 and subsequently deemed complete in accordance with Chapter 3 of Art;cle IX. This text amendment would permit condominium projects with vesting map applications filed between April 29, 1988 and July 28, 1988 to be reviewed and approved under the provisions of the previous Zoning Ordinance. The amendment could result in the construction of approximately nine projects with a total of sixty-two units under the property development standards contained in the former Zoning Ordinance. BUDGET/FINANCIAL IMPACT The recommendation presented in this report does not have any budget or fiscal impact. RECOMMENDATION It is respectfully recommended that the City Council: 1) Find that the proposed amendment is consistent in principle with the goals, objectives, policies, land uses, and programs - 3 - . . specified in the General Plan in that all the projects subject to this amendment comply with the residential density standards identified in the Land Use Element. This text amendment would not result in approval of any project that would be inconsistent with the elements of the General Plan. 2) Introduce for first reading the attached ordinance incorporating the following addition to the Municipal Code: section 9002.2 (f): Vesting Tentative Maps. Any residential project for which a vesting tentative map was filed between April 29, 1988 and July 28, 1988 and subsequently deemed complete in accordance with Chapter 3 of Article IX. Prepared by: Paul Berlant, Director of Planning Suzanne Frick, principal Planner Exhibit 1: Ordinance for First Reading Exhibit 2: City Attorney Opinion 88-21 SF:Dez HP/ResOOl 12/06/88 - 4 - . . CA:RMM:lld386/hpc city council Meeting 12-13-88 Santa Monica, California ORDINANCE NUMBER (city Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA SANTA MONICA MUNICIPAL CODE SECTION 9002.2 TO PERMIT RESIDENTIAL PROJECTS WITH VESTING MAPS TO BE REVIEWED UNDER THE PROVISIONS OF THE PRIOR ZONING ORDINANCE WHEREAS I the City Council introduced the lIcity of Santa Monica Comprehensive Land Use Ordinancell (hereinafter lIne\v Zoning Ordinancetl) for first reading on July 27, 1988 and adopted such Ordinance on August 9, 1988; and WHEREAS ( the new Zoning Ordinance was effective on September 8, 1988; and WHEREAS ( pursuant to Municipal Code Section 9120. 2 ( on October 5, 1988, the Planning Commission adopted a Resolution of Intention to amend the new Zoning Ordinance to allow residential projects for which vesting tentative map applications had been filed prior to July 27, 1988 to be reviewed under the provisions of the prior Zoning Ordinance; and WHEREAS I on October 19 I 1988, following a duly noticed pUblic hearing, the Planning commission adopted a resolution recommending that the City Council adopt an amendment to the Zoning Ordinance which would allow residential projects for which vesting tentative map applications had been filed prior to July - 1 - . . 28, 1988 to be reviewed under the provisions of the prior Zoning Ordinance: and WHEREAS, the proposed amendment is consistent in principle with the goals, objectives, policies, land uses, and programs specified in the General Plan: and WHEREAS, the public health, safety, and general welfare require the adoption of the proposed amendment, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: SECTION 1. section 9002.2 of the Santa Monica Municipal Code is amended to read as follows: SECTION 9002.2. vested Right. The following projects shall have a vested right to proceed without complying with this Chapter. (a) Previously Approved Conversion. The conversion to condominiums or other form of subdivided ownership for any multi-family dwelling that has a final subdivision map approved prior to October 1, 1981, and has received either a removal permit or vested right determination from the Santa Monica Rent Control Board. (b) Projects with currently Valid Building Permit. The erection, construction, enlargement, demolition, moving, conversion of, and excavation and grading for any building or structure for - 2 - . . which a valid building permit is in effect as of the effective date of this Ordinance. (c) Previously Approved Development Permit. The erection, construction, enlargement, demolition, moving, conversion of, and excavation and grading for any building or structure for which a valid development permit is in effect pursuant to Ordinance Number 1321 (CCS). A development permi t which does not contain an express limit on the time for exercising the permit shall be deemed valid only if a building permit is obtained wi thin one year of the date of adoption of this Chapter. No time extensions shall be granted for any development permit approved prior to the adoption of this Chapter. (d) Applications Deemed complete. Any project for which an application was filed pursuant to Ordinance Number 1321 (CCS) and deemed complete in accordance with Ordinance Number 1441 (CCS) or 1449 (CCS) prior to April 29, 1988. (e) Development Agreement. Development in accordance with the terms and conditions of a development agreement - 3 - . . approved by the City Council pursuant to Chapter 8 of Article IX of this Code. (f) vesting Tentative Maps. Any residential proj ect for which a vesting tentative map was filed between April 29, 1988, and July 28, 1988, and subsequently deemed complete in accordance with Chapter 3 of Article IX. SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance. SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The city Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The city Clerk shall cause the same to be published once in the official newspaper - 4 - . . within 15 days after its adoption. This Ordinance shall become effective after 30 days from its adoption. APPROVED AS TO FORM: ~lfw1,.~ ROBERT M. MYERS City Attorney - 5 - .' . . MEMORANDUM OPINION NUMBER 88-21 DATE september 15, 1988 Peggy Curran, Director of CEO Paul Berlant, Director of Planning Bill Rome, Building Officer Robert M. Myers, City Attorney Laurie Lieberman, Deputy city Attorney Development Permit Applications Filed and Approvals Obtained Prior to the Effective Date of the New Zoning Ordinance TO: FROM: SUBJECT: Questions have been raised by Planning Division staff and several affected members of the public regarding the standards applicable to applications which were filed with the Planning Division prior to the effective date of the new Zoning Ordinance- but which have not yet been considered by the Planning Commission. In addition, questions have been raised regarding the vested rights provisions of the Zoning Ordinance and their ~ applicability to projects that received Planning Commission approvals or administrative approvals prior to the effective date of the zoning Ordinance but which do not yet have building permits. This Memorandum opinion addresses these questions. I. vesting Tentative Maps and Other Development Permit Applications Filed Prior to Effective Date of the Zoning Ordinance But Not Approved Administratively or by the Planning commission Prior to That Date. With regard to vesting tentative maps, Santa Monica Municipal Code section 9325 states in relevant part: (e) The approval or conditional approval of a vesting tentative map shall confer a vested right to proceed with development in substantial compliance with those ordinances, policies, and standards in effect as of the date the application for a vesting tentative map is determined to be complete, or as otherwise permitted by Government Code section 66474.2. If Government Code Section 66474.2 is repealed, the approval or conditional approval of a vesting tentative map shall confer a vested right to proceed with development in substantial compliance with the ordinances, policies, and standards in effect at the time the vestinq tentative - 1 - . . map is approved or conditionally approved. Approval of a vesting tentative map shall in no way limit or diminish the authority of the City to deny or impose reasonable conditions in conjunction with subsequent approvals relating to the project provided the City applies those ordinances, policies and standards in effect at the time of approval of the vesting tentative map. (Emphasis added.) California Government Code Section 66474.2 states in relevant part: Section 66464.2. In determining whether to approve or disapprove an application for a tentative map, the local agency shall apply only those ordinances, policies, and standards in effect at the date the local agency has determined that the application is complete pursuant to Section 65943 of the Government Code. However, if the local agency has formally initiated proceedings by way of ordinance or resolution and published notice of such ordinance or resolution, in accord with the procedures used by the local aqency for publication of ordinances, to amend applicable general or specific plans, or zoninq or subdivision ordinances before it has received the complete application, the local agency may a~~ly any ordinances, policies, or standards enacted or instituted as a result of those proceedings which are in effect on the date the local agency approves or disapproves the tentative map. If the subdivision applicant requests changes in applicable ordinances, policies or standards in connection with the same development project, any ordinances, policies or standards adopted pursuant to the applicant's request shall apply. (Emphasis added.) The new Zoning Ordinance was adopted after formal initiation of proceedings in accordance with the procedures used by the Ci ty for adoption of the zoning ordinances. Therefore, pursuant to Government Code Section 66474.2, the City had the option to apply the new Zoninq Ordinance to vestinq tentative map applications which had not been considered prior to the effective date of the Zoning Ordinance. The city made its determination on that option when it adopted the new Zoning Ordinance. Santa Monica Municipal Code Section 9002.2 (new Zoning ordinance) states the following: - 2 - . . Section 9002.2. Vested Right. The following projects shall have a vested right to proceed wi thout complying with this Chapter. (a) Previously Approved Conversion. The conversion to condominiums or other form of subdivided ownership for any mUlti-family dwelling that has a final subdivision map approved prior to October 1, 19B1, and has received either a removal permit or vested right determination from the Santa Monica Rent Control Board. (b) Projects with currently Valid Building Permit. The erection, construction, enlargement, demolition, moving, conversion of and excavation and grading for, any building or structure for which a valid building permit is in effect as of the effective date of this Ordinance. (c) Previously Approved Development Permit. The erection, construction, enlargement, demolition, moving, conversion of an excavation and grading for, any building or structure for which a valid development permit is in effect pursuant to Ordinance Number 1321 (CCS). A development permit which does not contain an express limit on the time for exercising the permit shall be deemed valid only if a building permit is obtained within one year of the date of adoption of this Chapter. No time extensions shall be granted for any development permit approved prior to the adoption of this Chapter. (d) Appl ications Deemed Complete. Any proj ect for which an application was filed pursuant to Ordinance Number 1321 (CCS) and deemed complete in accordance with Ordinance Number 1441 (CCS) or 1449 (CCS) prior to April 29, 19BB. (e) Development Agreement. Development in accordance with the terms and conditions of a development agreement approved by the City Council pursuant to Chapter 8 of Article IX of this Code. Section 9002.2 (d) grandfathers projects with applications filed pursuant to Ordinance NUJ~.ber 1321 (eCs) as amended by Ordinance Nu~her 1441 (CeS) and Ordinance ~l~her 1449 (ces) and - 3 - . . deemed complete by April 29, 1988. This section applies to vesting tentative maps as well as any other project with an application deemed complete by April 29, 1988. Therefore, reading the language contained in the Zoning Ordinance in conjunction with Santa Monica Municipal Code section 9325(e) and Government Code section 66474.2, all development applications deemed complete ~rior to April 29, 1988, but not yet receiving approvals by the Planning Commission or administrative staff, where applicable, are not subject to the new Zoning Ordinance. Projects for which applications were filed subsequent to April 29, 1988, are not qrandfathered and are therefore subject to the provisions of the new Zoning Ordinance. II. Projects with Tentative Map Approvals or Administrative Approvals Which Have Not Obtained Building Permits Prior to the Effective Date of the Zoning Ordinance. Another category of projects giving rise to questions are those which have received planning approvals prior to september 9, 1988 (the effective date of the Zoning Ordinance), but which do not yet have building permits. Santa Monica Municipal Code Section 9002.2 (c) (new Zoning Ordinance) addresses these- projects. This section provides that development permits approved under Ordinance Number 1321 (CCS) are entitled to obtain building permits without having to comply with the new Zoning ordinance. Where a development permit does not expressly limit the time for exercising the permit, this section provides that the holder of such a permit must obtain a building permit within one year from August 9, 1988, otherwise the right to such a permit is lost and compliance with the new Zoning Ordinance is required. For purposes of this section, "development permits" were meant to include development review permits, administrative approvals, tentative maps, conditional use permits, and other planning approvals necessitated pursuant to the terms of Ordinance Number 1321 (CCS). Therefore, projects with valid planning approvals granted prior to September 9, 1988, are grandfathered by this section and may obtain building permits subject to the time limit provision discussed above without having to comply with the new Zoning Ordinance. LLL349jhpc - 4 -