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SR-402-002 (22) '/C2--00"Z '2-B C/ED:PB:DKW:WW Council Mtg: December 13, 1988 DEe 1 3 1~g8 Santa Monica, California TO: Mayor and city Council FROM: city Staff SUBJECT: Appeal of Planning Commission Condition of Approval for Conditional Use Permit 535 and vesting Tentative Tract Map 46363 that Requires the Revision of a Proposal Filed Prior to Adoption of the Amended Zoning Ordinance to Comply with the New Zoning Ordinance Development Standards. Applicant: Behzad Kianmahd. Appellant: Councilmember Herb Katz. INTRODUCTION This report recommends that the city Council modify the Planning commission determination for Conditional Use Permit 535 and Vesting Tentative Tract Map 46393, to permit the development of a two story, six unit condominium located at 928 19th Street, under the provisions of the zoning ordinance that was in effect on June 20, 1988, when the applications were filed. On September 28, 1988, the Planning commission approved the proposal subject to a special condition that required the submittal of revised site plans that complied with the amended comprehensive zoning ordinance development standards. Councilmember Herb Katz has appealed the determination. This report recommends council approval of the appeal, predicated on the Council adopting a zoning ordinance text amendment discussed by the Planning Commission on October 19, 1988 and which is on the Council agenda for December 13, 1988 for first reading. The text amendment is intended to address vesting - 1 - 12-B lEe } .3 1~88- tentative map applications filed prior to adoption of the new zoning code, allowing them to proceed with development under the old zoning code standards. (See Exhibit A) . BACKGROUND The applicant filed Vesting TTM 46363 and CUP 535 on June 20, 1988, prior to adoption of the amended zoning ordinance on July 26, 1988 and its effective date on September 8, 1988. At the September 28, 1988 meeting, the Planning Commission determined that while the proposal complied with the development standards in effect at the time the application was filed, the proposal did not comply with the new zoning ordinance in the following areas: 1. The new zoning ordinance permits a maximum 50% building lot coverage in lieu of the 60% lot coverage permitted under the former zoning ordinance. 2. The new zoning ordinance requires a minimum 20 foot front yard building setback in lieu of the 18 foot front yard setback on 1/2 of the front building facade permitted under the former zoning ordinance. 3. The new zoning ordinance requires minimum 7' side yard building setbacks in lieu of the 5'4" side yard setbacks permitted on the rear 2/3 of a building under the former zoning ordinance. 4. The new zoning ordinance requires a minimum 16 spaces for 6 two bedroom condominium units in lieu of 12 spaces required under the former zoning ordinance. The five commission members in attendance voted unanimously to approve the proposal, subject to imposing a special condition that required the applicant to submit revised site plans showing compliance with the new zoning ordinance development standards. The Commission took this action since it was not legally authorized to waive the requirements of the new zoning ordinance. - 2 - (See Exhibit B) On October 7, 1988, Councilmember Katz appealed the Planning Commission decision. ANALYSIS The developer, in good faith reliance, incurred the expenses associated with investing funds, purchasing land, acquiring architectural, engineering drawings and site planning costs for the purpose and intent of completing the six unit condominium development. As explained in the staff report concerning the proposed text amendment, this developer and several others designed their proj ects to the standards of the then-existing Zoning Ordinance based on the understanding that the new Ordinance would "grandfather" them, pursuant to representations by Planning Division staff. For these reasons, the Planning commission approved a text amendment to address the situation of this proposal and several other pending applications. The text amendment is before the Council for action as a separate agenda item. The project as proposed conforms to the previous zoning ordinance and merits approval based on the findings presented in the final section of this report. Therefore, if Council approves the ordinance to allow "grandfathering in" of certain applications such as this one, then staff recommends that the proj ect be approved as submitted and not be required to redesign to meet the current zoning code. Such a redesign would represent maj or design changes. - 3 - COUNCIL AUTHORITY Under the provisions of Section 9132.1, once an appeal is filed, the City council may take action on all determinations, interpretations, decision, judgments or similar actions taken which were in the purview of the Planning Commission on the applications or project and is not limited to the original reason stated for the appeal. BUDGET/FINANCIAL IMPACT The recommendation presented in this report does not have any budget or fiscal impact. RECOMMENDATION It is respectfully recommended that the Council uphold the appeal and modify the determination of the Planning Commission to permit construction of the six unit condominium under the provisions of the zoning ordinance that was in effect when the application was filed on June 20, 1988 subject to the Council's approval of an ordinance creating the text amendment addressing the code changes. This approval shall not be valid until the effective date of the ordinance relating to this issue. Prepared by: Wanda Williams, Associate Planner D. Kenyon Webster, Senior Planner Paul Berlant, Director of Planning Attachments: Exhibit A- October 7, 1988 Appeal Letter Exhibit B- September 28, 1988 Planning Commission statement of Official Action Exhibit C- September IS, 1988 City Attorney Memorandum Opinion Number 88-21 Exhibit D- November 2l, 1988 Architectural Review Board Courtesy Review Action Statement - 4 - WW:ww PC/CCCUp535 11/21/88 - 5 - J...,Jt:C8V \ Da<. I::> -- SANTA ~~,QNI CA HERBERT KATZ Mayor Pro Tempore 1685 Mai8stJOOI, si'nt<PllIlqplca, CalIfornIa 90401 (213) 458-820], CouncIl Office (213) 4.50-3313, Home Exh,bit ./ A I} October 7, 1988 Planning Department City Hall 1685 Main street Santa Monica, CA 90401 I hereby appeal the decision of the Planning Commission at its September 28, 1988 meeting regarding the following projects: - 2824 Arizona Avenue, CUP 533, Vesting Tentative Parcel Map 19937 - 928 19th street, CUP 535, Vest1ng TTM 46393 Herb Katz 1I~'95 f~h,b.tt "ts" STATEMENT OF OFFICIAL ACTION PROJECT NUMBER: TTM 46393, CUP 535 LOCATION: 928 19th Street APPLICANT: Behzad Kianmahd REQUEST: Vesting Tentative Tract Map 46393, Conditional Use Permit 535, To Permit the Development of a Two story with Intermediate Mezzanine Thirty (30) Foot High, six (6) unit Condominium Con- structed Over Twelve (l2) Subterranean Level Parking Spaces in the R2 (Residential Multiple Family) District. PLANNING COMMISSION ACTION 09/28/88 X Date. Approved based on the following findings and subject to the conditions below. Denied. other. CONDITIONAL USE PERMIT FINDING 1. The proposed use and location are in accordance with good zoning practice, in the public interest and necessary that substantial justice be done in that the two stories plus mezzanine level building will be compatible with surround- ing land uses that are characterized primarily by newer two story apartment development and in that the site can adequately accommodate the necessary parking and comply with the lot coverage provisions, setback requirements and other R2 standards outlined in the new zoning code. VESTING TENTATIVE TRACT MAP FINDINGS 1. The proposed sUbdivision, together with its prov1s1on for building redesign and improvements, will be consistent with applicable general plans as adopted by the City of Santa Monica. - I - 2. The site is physically suitable for the proposed type of development in that the project is an in-fill of urban land adequately served by existing infrastructure and having no significant physical site characteristics pre- cluding the proposed development. The site is physically suitable for the proposed density of development. 3. The design of the subdivision or the proposed improvements will not cause substantial environmental damage or sub- stantially and avoidably injure fish or wildlife or their habitat. 4. The design of the subdivision or the type of improvement will not cause serious public health problems. 5. The design of the subdivision or the type of improvements will not conflict with easements, acquired by the public at large, for access through, or use of, property within the proposed subdivision. 6. The design of the subdivision does not preclude future passive or natural heating or cooling opportunities. SPECIAL CONDITIONAL USE PERMIT CONDITIONS 1. That revised site plans showing a 50% building foot print lot coverage amount, minimum 20 foot front yard and 7 foot side yard setbacks and minimum required resident and guest parking spaces shall be reviewed by the Planning Commis- sion, prior to submittal of plans to the Architectural Review Board. Said plans shall also show either a) a reduction in building height or b) an increase in front and side building articulation above the second level of development. 2. A Park and Recreation Facilities Tax of $200.00 per residential unit shall be due and payable at the time of issuance of a building permit for the construction or placement of the residential unites) on the subject lot, per and subject to the provisions of Section 6670 at seq. of the Santa Monica Municipal Code. STANDARD CONDITIONAL USE PERMIT CONDITIONS 1. Plans for final design, landscaping, screening, trash en- closures and signage shall be subj ect to review and ap- proval by the Architectural Review Board. 2. Minor amendments to the plans shall be subject to approval by the Director of Planning. A significant change in the approved concept shall be subject to Planning Commission Review. Construction shall be in substantial conformance with the plans submitted or as modified by the Planning Commission, Architectural Review Board or Director of Planning. - 2 - 3. The Conditional Use Permit shall be of no further force or effect if Tentative Tract Map 46393 expires prior to ap- proval of a final map for said tract. 4. The rights granted herein shall be effective only when exercised within a period of one year from the effective date of approval. No extension of the permit may be granted. S. The applicant shall comply with all legal requirements regarding provisions for the disabled, including those set forth in the California Administrative Code, Title 24, Part 2. 6. Final parking lot layout and specifications shall be sub- ject to the review and approval of the Parking and Traffic Engineer. 7. Refuse areas, storage areas and mechanical equipment shall be screened in accordance with Sec. 9127J. 2-4 (SMMC). Refuse areas shall be of a size adequate to meet on-site need. 8. No noise generating compressors or other such equipment shall be placed adjacent to neighboring residential buildings. 9. Project design shall comply with the building energy reg- ulations set forth in the California Administrative Code, Title 24, Part 2, (Energy Conservation standards for New Residential Buildings), such conformance to be verified by the Building and Safety Division prior to issuance of a Building Permit. 10. Natural light shall be provided in at least one bathroom in each dwelling unit. 11. street trees shall be maintained, relocated or provided as required in a manner consistent with the city's Tree Code (Ord. 1242 CCS), per the specifications of the Department of Recreation and Parks and the Department of General Ser- vices. No street tree shall be removed without the ap- proval of the Department of Recreation and Parks. 12. street and/or alley lighting shall be provided on public rights-of-way adjacent to the project if and as needed per the specifications and with the approval of the Department of General Services. 13. Any outdoor lighting shall be shielded and/or directed away from adjacent residential properties, with any such lighting not to exceed 0.5 foot candles of illumination beyond the perimeter of the subject property. - 3 - 14. This determination shall not become effective for a period of ten days from the date of determination for the tenta- tive tract map and twenty days from the date of determina- tion for the conditional use permit, or if appealed, until a final determination is made on the appeal. 15. Ultra-low flow plumbing fixtures shall be utilized throughout the proj ect , as required by the Director of General Services. VESTING TENTATIVE TRACT MAP CONDITIONS l. All off site improvements required by the city Engineer shall be installed. Plans and specifications for off site improvements shall be prepared by a registered civil en- gineer and approved by the City Engineer. 2. Before the city Engineer may approve the final map, a sub- division improvement agreement for all off site improve- ments required by the city Engineer shall be prepared and a performance bond posted through the city Attorney's office. . 3. The tentative map shall expire 24 months after approval, except as provided in the provisions of California Govern- ment Code section 66452.6 and Sections 9380-9382 of the Santa Monica Municipal Code. During this time period the final map shall be presented to the city of Santa Monica for approval. 4. The developer shall provide the Engineering Department of the City of Santa Monica with one Dizal Cloth print reproduction and microfilm of each sheet of the final map after recordation. 5. Prior to approval of the final map, Condominium Associa- tion By-Laws (if applicable) and a Declaration of CC & R's shall be reviewed and approved by the City Attorney. The CC & R I s shall contain a non-discrimination clause as presented in section 9392 (SMMC) and in the case of con- dominiums, contain such provisions as are required by Sec- tion 9122E (SMMC). 6. The developer shall provide for payment of a Condominium Tax of $1,000 per saleable residential unit per the provi- sions of Section 6651 et seq. of the Santa Monica Municipal Code. 7. The form, contents, accompanying data, and filing of the final subdivision map shall conform to the provisions of sections 9330 through 9338 (SMMC) and the Subdivision Map Act. The required Final Map filing fee shall be paid prior to scheduling of the Final Map for city council approval. - 4 - 8. The final map shall be recorded with the Los Angeles Coun- ty Recorder prior to issuance of any building permit for a condominium proj ect pursuant to Government Code section 66499.30. 9. A Park and Recreation Facilities Tax of $200.00 per residential unit shall be due and payable at the time of issuance of a building permit for the construction or placement of the residential unites) on the subject lot, per and subject to the provisions of Section 6670 et seg. of the Santa Monica Municipal Code. INCLUSIONARY UNIT CONDITIONS 12. The developer shall covenant and agree with the City of Santa Monica to the specific terms, conditions and restrictions upon the possession, use and enjoyment of the subject property, which terms, conditions and restrictions shall be recorded with the Los Angeles County Recorder's Office as a part of the deed of the property to ensure that one (l) affordable unit is provided and maintained over time and through subsequent sales of the property. An affordable unit shall be defined as being affordable to households with incomes not exceeding 100% of the (HUD) Los Angeles County median income, expending not over 25% of monthly income on housing costs, as specified by the Housing Division of the Department of Community and Economic Development. This agreement shall be executed and recorded prior to approval of the Final Map. Such agreement shall specify 1) responsibilities of the developer for making the unites) available to eligible tenants and 2) responsibili- ties of the City of Santa Monica. to prepare application forms for potential tenants, establish criteria for qualifications, and monitor compliance with the provisions of the agreement. This provision is intended to satisfy the inclusionary housing requirements of Program 12 of the Housing Element of the General Plan of the City of Santa Monica ("Program 12") . Developer may satisfy the obligations created by this Agreement by demonstrating to the Director of Plan- ning compliance with any ordinance or resolution adopted by the City within two years from the effective date of this approval, which is intended to provide an alternative method for compliance with Program 12. An alternative method may be, but is not limited to, the payment of a fee in-lieu of providing an Affordable Unit. - 5 - VOTE Ayes: Nays: Abstain: Absent: Vacancy: Hecht, Nelson, Lambert, Mechur, Pyne Farivar One I hereby certify that this statement of accurately reflects the final determination Commission of t city of Santa Monica. Official Action of the Planninq PC/stcup535 WW 09/30/88 " d./?l ? ~ 6?~~::'/~~ M~ i!~cQ/ /9?f signature ~~., date' ,1),,_-,,/,/ .1..,,,,,'.. AJe/so_ {i3.,{ <u;- print name and title r ? .~ - 6 - DATE MEMORANDUM OPINION NUMBER 88-21 Exh; bit IJ ell September 15, 1988 FROM: 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: 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. r. Vestinq Tentative Maps and Other Development Permit Applications Filed Prior to Effective Date of the Zonins 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 1n relevant part: (e) The approval or conditional approval of a vestinq tentative map shall confer a vested riqht to proceed with development in substantial compliance with those ordinances, pOlicies, and standards in effect as of the date the application for a vestinq 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 vestinq 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 formal~ 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 agency for publlcation of ordinances, to amend applicable general or specific plans, oi zoninq or subdivision ordinances before it has received the complete application, the local agency may apply 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 appl icable 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 City for adoption of the zoning ordinances. Therefore, pursuant to Government Code Section 66474.2, the City had the option to apply the new Zoning ordinance to vesting 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 - .; I . . , section 9002.2. Vested Riqht. 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 ~uildin9 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 st~cture for which a valid development permit is in effect pursuant to Ordinance NU!JIber 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) Applications Oeemed Complete. Any project for which an application was filed pursuant to Ordinance N,_,mher 1321 (CCS) and deemed complete in accordance with Ordinance Number ~.441 (CCS) or 1449 (CCS) prior to April 29, 1988. (e) Development Aqreement. Development in accordance wi th 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 Cd) grandfathers projects with applications filed pursuant to Ordinance Nnmher 1321 (CCS) as amended by Ordinance N~~ber 1441 (CCS) and Ordinance Numher 1449 (CCS) 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, 19B8. 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 prior 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 grandfathered 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 qiving 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 (ceS). Therefore, projects with valid planning approvals granted prior to September 9, 1988, are grand fathered 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. LLL349/hpc - 4 -