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