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SR-402-002 (5) . 'I {)~()(}-Z-- . 12-A. MAY 1 0 19BB CjED:SF:Dez council Mtg: May 10, 1988 Santa Monica, California TO: Mayor and city council U " [ ~ , - FROM: City staft SUBJECT: Appeal of the Planning Commission Denial of Development Review Permit 407, Located at l826 14th street. INTRODUCTION This report recommends that the City Council uphold the Planning commission's denial of Development Review Permit 407, 1826 14th street. The application is a request to convert eight residential units into commercial offices. The applicant is Dorothy Burreson represented by the appellant Christopher Harding. BACKGROUND At the time the applicant purchased the property in 1956 there were a total of eight residential units on site. There are six units in the structure located in the front of the lot (1-6), and there are two units located in the structure at the rear of the lot (7-8). Units 7 and 8 have been used by the applicant for commercial purposes for over 20 years, and the remaining units were used for residential use. On May 10, 1984 the Rent Board issued a non-residential rental exemption for units 2, 3, 4, 7 and 8, and a letter of exemption for purposes of removal for units 1, 5 and 6. - 1 - \2-A- MAY 1 0 1988 e . Administrative Approval The applicant submitted to the Planning Division an Administrative Approval Application to convert the residential units into commercial use. On July 20, 1987 Planning staff denied the Administrative Approval based on the fact that the request was not in conformance with the Zoning Ordinance and the Housing Element of the General Plan. The project as submitted did not provide adequate parking for commercial uses. The site currently has seven parking spaces, however, the conversion of residential to commercial use would require a total of twelve spaces to be provided on site. The project, as submitted, is also inconsistent with Program 10 of the Housing Element which states: "Demolition of existing multi-family residential dwelling units shall not be authorized unless provision has been made for replacement of those units.1I The applicant has made no provisions for replacement of the units in question and claims that they have no obligation to provide such units. As a result of these inconsistencies, Planning staff could not approve the application administratively. Development Review In the case where an Administrative Approval Application is denied by Staff, the applicant may appeal the denial to the Planning Commission. The applicant filed for Planning commission review and on February 3, 1988 the planning commission conducted a public hearing on the matter. After considerable discussion on - 2 - . . the matter, the application to convert the residential units to commercial use was deemed denied due to a lack of four votes for either approval or denial. The Commission debated the interpretation of the word "demolition" used in the context of Program 10. The Planning Conaniss ion was asked to determine if the word "demolition" applied to the conversion of multi-family residential units into commercial uses, thereby requiring replacement under Program 10 of the Housing Element. At that meeting the Planning Commission requested staff to agendize discussion of Program 10 at the February 14 Commission meeting. On February 14, 1988 the Planning commission adopted guidelines for implementing Program 10 of the Housing Element. The guidelines state liThe replacement requirements of Program 10 shall apply to all owners/developers of mUlti-family residential dwelling units regardless of the unit tenure who are proposing to remove through demolition or conversion mUlti-family residential units in the city of Santa Monica." Under the provisions of these guidelines, conversion of mUlti-family units into commercial use would not be permitted unless the applicant has provided residential replacement units. In the case of the application at 1826 14th street, no replacement units are proposed. Variance Request On February 18, 1988 the applicant filed a variance seven parking spaces in-lieu of the twelve required. Administrator failed to act on the application to permit The Zoning within the - 3 - . . Robert Brahms, 1840 14th street, Santa Monica Richard Boyd, 1819 Euclid, Ap't C, Santa Monica Deputy city Attorney Lieberman clarified the variance and explained the history of the case. No variance ap- plication was being considered or presented at this meeting. A discussion of Program 10 followed. Commis- sioner Lambert asked for the definitions of "demolition" versus "removalll. Chair Hecht inquired of counsel the history of demolition in Santa Monica. Commissioner Nelson raised concerns over how the Ellis Act would ap- ply to this case and the implications of demolition. A motion was made for the interpretation of the word "de- molition" to include the change of use as having ap- plicability under Program 10. The motion was seconded and the following vote was recorded: AYES: Lambert, Mechur, Nelson; NOES: Hecht, Perlman; ABSTAIN: Perl- man; ABSENT: Farivar. Chair Hecht questioned if a four vote majority was re- quired. All members of the Commission present agreed to continue with item 7-C until the city Attorney clarified the voting issue. Following action upon item 7-C, the commission resumed discussion on item 7-B. Counsel ruled that according to the by-laws of the Planning Commission, the vote failed to pass. The rules state any action granting approval of any substantive matter requires 4 votes or it is automatically denied. commissioner Nelson moved to deny the project on the basis of Program 10. The motion was seconded with the following vote: AYES: Hecht, Lambert, Mechur, Nelson, Pyne; NOES: None i ABSTAIN: Perlman; ABSENT: Farivar. commissioner Nelson asked to agendize the item for fur- ther discussion. After some discussion, Commissioner pyne and Chair Hecht requested the record show that they had voted opposite to what they had indicated. The corrected vote is 3-2 in favor of the motion to deny. c. CUP 499, TPM 19288, 817 17th Street, R2, To construct a four unit, two story residential condominium building. Eight parking spaces would be provided in a subterranean garage accessed from 17th street. An existing single family dwelling would be removed. Following the staff report, Commissioner Perlman in- quired about access to the property via the street ver- sus the alley. Chair Hecht raised concerns about the location of the Montana Avenue Branch Library and its volume of pedestrian and vehicular traffic. - 3 - . t~~rgIT D . m'{.Ob. ~ P!T ~ ~~NlIG~1 LA\,'RE~~,~ARDl~G -, ". P..OF'ESSIO......1. CORPO"..'TIO.... C:tolRISTOPt-iE:R t-lI ....AClOi~G R-CI-IAQ:;" ...AW~ENCE ~~N~ET~ L ~~TCHEA MA,q-,Q,.J BRt,SN,CI'( ..ICt-tN E MACKEL.III KEV'N V 'l'l:O%A-_ ATTOR.....E:;yS AT ...AW , ,. 1250 S.XT.... 5:TR/EET S"oT~ 300 February 1, 1988 SA....TA MC""I:CJI. CA;.. FCA'\.IA. 9040 T.E.LEP""ONE '2"-3' 393- 007 TE-:"ECOP2-Ect ~213-; 458- 959 VIA MESSENGER EXPRESS ~=~~====~=;========== Planning Commission City of Santa Monica 1685 Main Street Santa Monica, CA 90401 Re: 1826-14th Street Development Review Application, DR 407 Parking Variance Application, ZA 5162-Y Our File No. 187.1 Dear Commissioners: This office represents Dorothy Burreson, the owner of the property located at 1826-14th street, Santa Monica. At your February 3, 1988 meeting, you will be considering a development review application (DR 407) and a parking variance application (ZA 5162-Y) affecting this property. The proposed project affecting this property involves conversion of the existing building to commercial use. The proposed project does not contemplate demolishing any portion of the structure. A development permit from the Planning Commission would not be required for this project except that Staff has deter- mined the Project may be subject to Program 10 of the Housing Element. Santa Monica Ordinance No. 1321 (CCS), which defines the projects requiring a development permit from the Planning Commission, specifically states that it does not apply to applications for changes of use provided the change of use is consistent with the City'S General Plan. (Section 2(d)). Mrs. Burreson contends that because Program 10, by its own terms, only applies to demolitions and not changes of use, the Planning commission is legally required to approve the development review application or, in the alternative, to find that it does not have jurisdiction over this matter and instruct Staff to grant this project an administrative approval. This letter will not argue the merits of the parking variance application because it has been deemed approved pursu- ant to the Permit Streamlining Act and, therefore, the Planning Commission now has no jurisdiction to consider the application. This should be confirmed by the Commission during the pUblic hearing. . . lAWRESCE & HARDlXG A PROFeSSIO.......L CORPOR",T}O'" ATlOI'l"lEV<; AT LAW Planning commission February 1, 1988 Page 4 The legal rules of statutory construction require that the term "demolition" must be construed in accordance with its common and ordinary meaning. See County of Oranqe v. Flournoy, 42 cal.App.3d 908,117 eal. Rptr. 224 (1974); Prunty v. Bank of America, 37 Cal.App.3d 430, 112 Cal. Rptr. 370 (1974): Merrill v. Dept. of Motor Vehicles, 71 Cal.2d 907, 458 P.2d 33 (1969); Behlinq v. County of Los Anqeles, 139 cal.App.2d 684, 294 P.2d 534 (1956). In County of Orange, supra, 117 Cal. Rptr. at 226, it was held that I'. . . if the words of a statute, when given their ordinary and popular meaning, are reasonably free of uncertainty, courts will look no further to ascertain the statute's meaning." Also, in Merrill, supra, 80 eal. Rptr. at 99, the court held that legislative language must be given its usual, ordinary meaning. Thus, the Planning Commission must apply the ordinary dictionary meaning of the term "demolition" in construing Program 10. Standard dictionaries, including Webster's, define "demolish" as "to tear down" or "to raze". The term "demolish" cannot reasonably be construed to include conversions where the existing structure is not being "razed" or "torn down". In short, Program 10 has no application to the project proposed for Mrs. Burresonls property, which does not involve the demolition of any multi-family dwelling units. Moreover, it is our understanding that Program 10 was intended to preserve controlled rental units that are demolished notwithstanding the removal permit restrictions of the Rent Control Law. However, the units on this property are not controlled rental units. On May 10, 1984, the Rent Control Board granted a non-residential rental exemption for four of the units on the property and a letter of exemption pursuant to Regulation 5017 was granted for the remaining three units. Since May la, 1984, it has been clear that none of the seven units on the property are controlled rental units. Therefore, Program 10 should not be applied to this property. Finally, it is our opinion that Program 10 is merely a statement of policy. It lacks sufficient guidelines for its enforceability. Without implementing ordinances or regulations, it is our opinion that Program 10 is not self-enforcing and cannot be the basis for a denial of the development permit application at this time. . . LA~"REXCE & HARDI~G *' PRC'F"t.S510....~L CORPORATIO"'" A.TTORNEYS "'T ~W Planning Commission February l, 1988 Page 5 B. Denial of the Development Revi~w ADDlication Pursuant to proqram 10 Would constitute an Illegal Spot Zoning of the Property. If Program 10 is applied to the pending development application for this property, it would preclUde its conversion from a residential to a commercial use. This would effectively create an illegal spot zoning of the property since the property is virtually the only residential use remaining on this segment of 14th street. The other uses are virtually all commercial office and retail uses. If this property is restricted to a residential use only, notwithstanding the fact that such use is incompatible with the uses of the surrounding properties and inconsistent with the General Plan, Zoning Code and proposed Zoning Code of Santa Monica, it will be illegally spot zoned. {See wilkins v. City of San Bernardino, 29 Cal.2d 332, l75 P.2d 542 (1946) ~ Reynolds v. Barrett, 12 Cal.2d 244, 83 P.2d 29 (1938); Vlso v. State of California, 92 cal.App. 3d 15, 154 cal. Rptr. 580 (1979}.) The spot zoning doctrine generally prohibits cities from singling out parcels of property in a particular neighbor- hood or zoning district and imposing greater use restrictions upon them than the restrictions generally applicable in the neighborhood or zoning district. Program 10, if applied to Mrs. Burresonts property, would impose severe (if not prOhibitive) restrictions on her property that are not generally applicable to other properties in this neighborhood or zoning district. The doctrine of spot zoning is intended to prohibit this type of discriminatory treatment. c. The Parking variance Application has Been Deemed Approved. Government Code Section 65952 (a provision of the Permit streamlining Act) provides a lSO-day time limit for Planning Commission action on the parking variance application for this property. The applicants provided the requested information to complete their variance application on or before April 13, 1987. The Planning Division did not respond with a letter indicating the applications were deemed incomplete on or before May 13, 1987, as contemplated by the Permit streamlining Act. (See Gov't Code 165943.) Therefore, the application was LA\\1~EXCE & HARDI~G . . ... 'P'ROF"LSSIOI'iAL COqPORA'fIC"'" ...TTORNE....S AT '.AW Planning Commission February 1, 1988 Page 6 deemed complete on May 13, 1987, and the parking variance appli- cation was deemed approved when the 180-day time period expired on November 12, 1987. Because the application has been deemed approved, the Planning Commission no longer has the power to deny the parking variance permit. CONCLUSION We request that you find that Program 10 does not apply to this property and, therefore, approve the development review application or, in the alternative, find that this matter is exempt from Planning Commission review pursuant to section 2(d) of Ordinance No. l32l (CCS) and direct that it be administra- tively approved by Staff. with respect to the parking variance permit, we request the commission to acknowledge the variance has been approved by operation of law pursuant to the Permit Streamlining Act. Respectfully submitted, C~\..~~ ,,~\-\~ Christopher M. Harding of LAWRENCE & HARDING, a Professional Corporation CMH: pp JEM:BURRES7 co: Suzanne Frick Dorothy Burreson Ginette Mizraki David Horn Laurie Lieberman . . LAKRE~CE & HARDING " PROrESSION...:". CORPOR.........'Ctlf ATTORNEYS AT LAW Planning Commission February 1, 1988 Page 2 FACTS Dorothy Burreson has owned this property since 1956. The property is improved with seven units. Mrs. Burreson and her husband have lived in one of the units since 1957. Of the remaining units, only three have been used for residential rental purposes in the last nine years. None of the units have been used for residential rental purposes since 1984, when the last of the tenants vacated. In 1984, the property was granted letters of exemption by the Santa Monica Rent Control Board for all seven units. Mrs. Burreson and her husband have operated a welding business for many years in the City of Santa Monica. They have recently decided to retire. However, she and the prospective purchasers of her property have now been confronted with the additional and unexpected requirements of Program 10. Mrs. Burreson and the prospective purchasers have suffered long and unnecessary delays in the processing of their applications. On February 18, 1987, the prospective purchasers filed an application for a parking variance for the property. They had previously opened an escrow to purchase the property from Mrs. Burreson on February 13, 1987. The closing date for the purchase and sale transaction was originally scheduled for May 14, 1987. On March 5, 1987, the planning Division sent the applicants a letter indicating the parking variance application was rejected for filing because certain additional items were requested and because of purported conflicts with Program 10. A copy of this letter is attached as Exhibit "A". On April 13, 1987, the purchasers provided the requested information to complete their application. After they submitted this infor- mation, Planning Division staff never sent a letter deeming their application incomplete. Thus, the variance application was deemed complete as a matter of law on May 13, 1987. Pursuant to discussions with the City Attorney, our firm sent a letter to the city Attorney and Planning Division on May 28, 1987 confirming an agreement that the Planning Division would process any and all development applications affecting this property, including the parking variance application, with- out prejudice to whether Program 10 of the Housing Element was L-\'fREXCE & HARDlXG . . A f:lROF'"ESSIO.......i.. Ct)~PORA.TION AT"TOR..E:YS AT LAW Planning Commission February 1, 1988 page 3 applicable to the property. A copy of this letter is attached as Exhibit "B". The prospective purchasers were subsequently informed that a development review application would be necessary because of the possible application of Program 10 to the property. Therefore, they filed a development review application on July 22, 1987. It stated that t1[t]he units, as existing, will be used for individual office suites." The plans submitted with this development application had already been approved by the Parking and Traffic Division on February 17, 1987. Despite our continual requests to process the appli- cations, no action was taken with respect to either the parking variance application or the development review application. In November 1987, our firm sent a letter to Suzanne FriCk of the Planning Division, again requesting that these applications be processed and indicating that the parking variance application had been deemed approved pursuant to the permit streamlining Act. A copy of this letter is attached as Exhibit "C". DISCUSSION A. p~oaram 10 Does ~ot Applv to This Oevelopment Review At)'o1 ication. - Program 10 does not apply to a change in use of prop- erty which does not involve a "demolition". Program 10 states: tlPemolition of existing multi-family residential dwelling units shall not be authorized unless provision has been made for replacement of those units." (Emphasis added.) It is clear that program 10 is intended to apply only to circum- stances where there will be a "demolition". Program 10 (a copy of which is attached as Exhibit "Dtl) uses the term demolition or a variation thereof four times in its text, which consists of only five sentences. Nowhere does Program 10 reference the "removal" or "conversionll of mUlti-family units, terms found in other City laws including the Rent Control Law. Program 10 on its face only applies to projects involving the tldemolition" of multi-family housing units. . ~/.mp(r t:: . PROGRAM 10: Demolition of eXl.sting mUlti-family resident1.al dwelling units shall not be authorized unless provl.sion has been made for replacement of those units. OBJECTIVE: Preserve existing housing stock. DESCRIPTION: In the past there have been signifl.cant losses to the housing stock because of demolished mUlti-family housJ.ng units being replaced by fewer units or by non-resl.dent1.al uses. Demolition of exist1.ng multi-family residential dwelling units shall not be permitted unless a plan for replacemen t of thos e units has been approved. This requirement shall not apply when it 1.S determined that replacement of all or a portl.on of the unl.ts 1.5 not feasible, and the requ1.rement for prior approval of a replacement plan shall not apply if irrnnedl.ate demolit1.on 1.S necessitated by documented health and safety defects. IMPLEMENTATION: Responsible Agency: Department. community and Economic Development Cost: One-time cost of less than$500 for ~egal advertis1.ng. Staffing: EX1.sting staff sufficient. Fund1.n9: General Fund. Schedule: III. Quantified Impact: This program will ensure a one-for-one replacemen t of demolished multi-family housing to maintal.n the City's housl.ng stock of over 46,000 units. 71