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SR-04-22-1986-12A e t/ ot(,- 00 0/ e ,~ ..A APR Z '2 \986 cjED:PC:RAS:nh Councll Mtg: Aprl1 22, 1986 Santa Monlea, Callfornia TO: Mayor and Clty Councll FROM: Clty Staff SuBJECT: Recommendation To Set A Public Hear1ng Date To Consider Appeal Of Tentatlve Tract Map 44039 For Subdivislon Of Real Property At 1024 Bay Street. INTRODUCTION ThlS report presents an appeal of a Plannlng Comm1ssion decision and recommends that Councl1 schedule the matter for a publlC hearing at the Council meetlng of May 13, 1986. BACKGROUND On Wednesday, Apr11 16, 1986, Grant Wada, the appllcant, flIed an appeal of the P1annlng Commission I s April 7, 1986, declsion to approve Cond1tionaI Use Permlt 413 and Tentat1ve Tract Map 44039, with conditlons, for a 6 unlt condOIDlnlum to be located at 1024 Bay Street. On Wednesday, Aprl1 16, 1986, Paul M. Van Arsdell, Jr. , an lnterested party, also flIed an appeal of the same Plannlng Cornmlsslon declsion. Under the provls1ons of the Munlclpa1 Code pertaln1ng to tentatlve tract map appeals (Sectlon 9366), If the appllcant appeals a Plannlng Comm1ssion decislon on a tentatlve tract map, the appeal must be scheduled for a public hearlng wlthln thlrty (30) days. However, If an interested party appeals a tentative tract map I wlth1n ten (10) days, or the next regular Clty - 1 - l~-A APR 2. 2 1986 - .. e Counc~l meet~ng follow~ng the f~l~ng of the appeal, the Council may, at lts dlscretlon, reJect the appeal or vote to set the matter for publlC hearing. If the Councll decides to accept the appeal, a pUblic hearlng on the matter must be held withln th~rty (30) days after the complalnt has been filed. To assure complalnce wlth the requirements of the Mun~clpal Code, the appeal flIed by Paul M. Van Arsdell, Jr., is now before the Councll to be accepted or reJected. Should the Councll vote to accept the appeal and set the matter for publ~c hearing, the matter wlll be scheduled on the May 13, 1986, CounCll agenda to allow for requlred public notlflcatlon. Because the appeal filed by the appll.cant must be scheduled for public hearl.ng wi thln th~rty (30) days, It appears dppropriate to accept the appeal fl.led by the interested party and set the matter for public hearlng. FISCAL/BUDGET IMPACT The recommendatlon of thlS report wlll have no flscal or budgetary lmpact. RECOMHENDA'l'ION It is respectfully recommended that Counell accept the appeal and set the matter for public hearlng at the Council rneetlng of May 13,1986. Prepared by Ann Slracusa, Dlrector of Plannlng Comrounlty and Economlc Development DepartmentCCWadaAp - 2 - .... It e , , ....--~ .. .;; 7~,cc ~~ E ~E1 ::z. April 15, 1986 BY HAND DELIVERY Honorable Mayor and City Council City of Santa Monica City Hall 1685 Main Street Santa Monica, California 90401 Reference: C.U.P. 413, T.T. 44039, 1024 Bay Street Subject: Complaint Appealin~ Ruling of Planning Commission Dear Honorable Mayor and City Council: In accordance with Sect~on 9366(b) of the Santa Monica Municipal Code and with advice we have received from the Planning Department staff, we are writing this letter to serve as "a comDlaint" as defined in Section 9366(b) a::J.d again to appeal ~another decision of the Planning Commiss~on of the City of Santa Monica ("Planning Commission") granting an application of Mr. Grant Wada (lithe developer") for the referenced Conditional Use Permit and Tentative Tract Map, unlawfully permitting the development of a slx-unit condo- minium at 1024 Bay Street, Santa Monica, California. We ask that this matter be set for public hearing and for oral argument in accordance with law and as provided in Section 9366(b). We appeal on behalf of ourselves, on behalf of all residents of the five dwellings at 1030 Bay Street, on be- half of Bay Street Townhouses Association, Inc. and on be- half of the class of all other residents in the neighborhood who oppose the developer's application, including without limitation the 125 or more neighborhood residents who wrote letters or signed petitions delivered to the Planning Commission in opposition to the developer's application. ... e - Honorable Mayor and City Council April 15, 1986 Page 2 The decision of the Planning Co~ission from which we appeal was made at approximately 1:00 a.m. on the morning of April 8, 1986. We appeal this decision and ask that you reverse it and remand it for further consideration by the Planning Commission on each of the following independent grounds: (1) The hearing conducted by the Planning Commission was unfair and denied our fundamental rights to due process of law because: (a) The Planning Commission stafr, in violation of its o"~ practices and applicable law and regulations, intentionally withheld from us the staff report on the application until April 3, 1986 (we were told by staff that the report was "one day from completion" on February 27, 1986, and we call to your attention the virtual identi- cality of the present staff report with the staff report on this developer's prior unlawful attempt to construct a six-unit condominium on a five-unit lot) ; (b) On April 4, 1986, twenty-four hours after we finally received the staff report, we submitted to staff seven copies of a 42-page op- position paper (Exhibit A to this appeal) for dis- tribution to the Commissioners, but Karen Rosenberg and Suzanne Frick, over our objection, withheld this opposit~on report from the Commissioners until shortly before the hear~ng be- gan on April 7, 1986. (In the circums tanees of this application, the conclusions are unavoidable that Ms. Rosenberg and Ms. Frick intentionally and unlawfully deprived us of our right to present written evidence to the Planning Commlssion in op- position to the proposed development and that an unlawful pro-developer bias on the part of the Planning Commission staff prevented the Plannlng Commission from rul~ng fairly on the application and from exercising discretion pursuant to a fair hearing; (c) The Planning Commission abused its discretion ~n approving a proposal for development .. tit e Honorable Mayor and C~cy Counci~ April 15, 1986 Page 3 that ~s not only unlawful under present law but also will be unlawful for numerous and significant additional reasons under the proposed comprehen- sive amendment to the Land Use Element of the General Plan and under the proposed ordinance per- mitting developers to pay fees in lieu of provid- ~ng low-income housingj (d) The Planning Commission failed to follow its own rules of procedure by refusing to permit us to testify in opposition to the pending application (under Planning Commission rules, we had prepared and were entitled to 30 minutes of evidence in opposition to the application, but the Planning Commission permitted us to testify for less than 10 minutes) (See, e.g., Exhibit B); (e) Three of the four Commiss~oners who voted for the application were absent for part of the public hearing and refused to listen to our testimony by engaging in an unlawful, private meeting during a significant part of our testi- monYj (f) The four Commissioners who voted on the application at about 1:00 a.m. were so ex- hausted that they failed to exercise any discre- tion at all, much less sound discretion, in ruling on the applicationj and (g) The Planning Commission was misled by false statements in the application and by mis- leading statements in the staff report, and the Planning Commisslon refused to permit us to testi- fy about these false and misleading statements. (2) The action of the Planning Commission was void because no application was properly before the Commission (the developer failed to satisfy the legal pre- requisites, including the payment of an application fee, to have an application considered by the Planning Commission)j (3) In reliance on a clearly erroneous oral op~n~on by the City Attorney that the "prior action pending" doctrine compelled the Planning Commission to act, the .. e e Honorable Mayor and City Council April IS, 1986 Page 4 Planning COlllll1ission refused our request that it continue the hearing and stay its decision penciing the outcome of further judicial proceedings on the developer's first application; (4) The action of the Planning Commission v~o- lates Government Code Section 65915 by awarding to the de- veloper both a density bonus unit and other incentives of equivalent financial value -- the statute permits either, not both; (5) The action of the Planning Corrnniss ion in awarding a density bonus and other incentives of equivalent financial value pursuant to Government Code Section 65915 violates our constitutional rights to due process of law, to equal protection under the law, and to be free from a muni- cipal taking of our property without just compensation; (6) The action of the Plannimz Conmnssion in awarding a density bonus and other incentives of equivalent financial value is inconsistent with applicable zoning ordi- nances and the General Plan for the City of Santa Monica; (7) The action of the Planning Commission vio- lates applicable municipal ordinances. including Section 9363 of the Santa Monica Municipal Code, in each of the fol- lowing respects: Ca) The proposed nap is not consistent with applicable general and specific plans as specified in Government Code Section 65451; (b) The design or improvement of the proposed subdivision is not consistent with appli- cable general and speciflc plans; (c) The s~te is not physically suitable for the type of development; Cd) The site is not physically suitable for the proposed density of development; (e) The design of the subdivlsion and the proposed improvement are likely to cause substantial environ~ental damage; ~ e It Honorable Mayor and City Council April 15, 1986 Page 5 (f) The proposed subdivision is incon- sistent with applicaole ordinances and laws of the City of Santa Monica; 8. The action of the Planning Commission was taken pursuant to hearing procedures that conflict with applicable prov~sions of the Municipal Code, that were fun- damentally unfair and that den~ed us our rights to be heard before the Planning Commission; 9. The action of the Planning Commission was based on passion and prejudice rather than on a correct ap- plication of established and unambiguous law to proven and undisputed factsj 10. The action of the Planning Commission was tainted by the bias of Karen Rosenberg, a member of the planning staff, who should have disqualified herself from participating ~n the proceedings by reason of her prior re- lationship and communications with the developer and his architect; 11. The action of the Planning COITlillission was irrationally prejudiced by the Planning Commission's ~mpro- per consideratlon of facts relating to the dwellings of the opponents to the development rather than of facts relating to the application and to the development; and 12. The action of the Planning Commiss ion 'tvas based on findings of fact that were clearly erroneous and wholly unsupported by the evidence and on conclusions of law that were plain error. In support of our appeal, we incorporate by refer- ence the entire f~les of the Planning CO~~lssion and of the commiss~on staff not only on the referenced matter but also on C.U.P. 385, T.T. 44039, the prior application by Mr. Wada on which the Super~or Court ordered the City Council and the Planning Commission to vacate their rulings, including with- out limitation the tape recordings of the hearings and any transcripts thereof and the following documents attached hereto: (1) Letter dated April 3, 1986 from Paul M. Van Arsdell, Jr. to the Commissioners of e e Honorable Mayor and City Council April 15t 1986 Page 6 the Planning Commission (attached hereto as Exhibi t A); and (2) Partial trans cript of proffered Statement by Opposing Neighbors (transcript was not argued at hearing because Planning Commission unlawfully refused to permit adequate time to testify) (attached hereto as Exhibit B). As the record reflects, the action of the Planning Commission is unsupported by law or by fact. The action is expl~cablet if at all, only on the basis of passion and prej udice, aroused by emotional presentations by the developer and his architect and inflamed by argumentative, irrelevant and false testimony by the applicant and by a misleading report from the staff, who caused the Planning Commission to divert its attention away from the illegalities and improprieties of the proposed development. Appellants respectfully disagree with the decision of the Planning Commission and ask the City Council to reverse or vacate the decision and remand it for further consideration. Very truly yours, ,'1 /2---~1 to--~oo!!...{~. Paul M. Van Arsdell, Jr. 1030 Bay Street, No. 1 Santa Monica, CA 90405 ~IJ~- Barbara W~ltzen 1030 Bay Streett No. 1 Santa Monica, CA 90405 +J,()&ztL~if H. Allen Evans 1030 Bay Street, No.4 Santa Monicat CA 90405 - e Honorable Mayor and City Council April 15, 1986 Page 7 ~ ~ ~'"Cv~ Lois Evans 1030 Bay Street, No. 4 Santa Monica, CA 80405 ~ ~ ~_L_ ~ Ken Stringer ~ 1030 Bay Street, No.5 Santa Monica, CA 90405 ..~~ ennifer S. Jensen 1030 Bay Street, No. 5 Sa on1.ca, CAAl040S / ' 'f) / '/ / il; ly~X v R1. ta Hvde " 1030 B~y Street, No. 2 Santa Monica, CA 90405 1 ~ lr.1 I f .::...;;' if '~1 J /~- . :1"/ \i VV ..;/-~ '-.....--J..ef( Ser~tan 1030 Bay Street, No.3 Santa Monica, CA 90405 cc: Ms. Penny Perlman, Chair, Planning Commission e e April 3, 1986 BY PERSONAL DELIVERY Commissioners Planning Commission of the City of Santa Monica City Hall 1685 Main Street Santa Monica, California 90401 Re: Second Application of Grant-Wadai T.T. 44039~ G.U.P. 413; 1024 Bay Street, Santa Monica, CA Dear Commissioners: The purpose of this letter is to set forth the position of those neighborhood residents who oppose the pending application by Grant Wada to develop the property at 1024 Bay Street. Your file on the developroent of this pro- perty, which we incorporate by reference, already contains letters and petitions signed by 80 to 100 neighborhood resi- dents who object to Mr. Wada's plan to construct a six-unit condominium on this lot, and this letter summarizes and sup- plements those materials. We ask that at the hearing on April 7, 1986, you make either of two rulings: (1) to continue the hearing, or (2) to deny the application. We ask you to continue the hearing for five inde- pendent reasons: (1) the enactment of the proposed uin-lieu" fee ordinance will accommodate the City's policy of providing housing for persons of low or moderate income ap-d will eliminate the developer's economic need or fi- nancial incentive to burden a f~ve-unit lot with a six- unit condominium building; e e Commissioners April 3~ 1986 Page 2 (2) the enactment of the proposed comprehen- sive amendment to the zoning ordinance will make the proposed development unlawful; (3) the developer is simultaneously pursuing judicial remedies to reinstate your ruling on his first proposal for development; (4) the notice of hearing in the circum- stances of this application was legally ineffective; ~d (5) the staff report on the proposed develop- rnent~ which restates almost verbatim the report on Mr. Wada's first application~ was withheld by staff from opposing neighbors until April 3~ 1986, effectively de- priving them of any meaningful opportunity to contest in writing certain serious errors and misstatements of fact and of law contained in the report. If you decide not to continue the hearing and to consider the merits of the application, we ask you to deny the application for the reasons expressed in our opposition to the developer's previous application to develop this lot (See, ~, Exhibits E and F) and for the additional reason that the density bonus unit sought by the applicant is unlawful in the circumstances of this case. To assist you in understanding our opposition to the application, you will find the following materials as exhibits to this letter: Exhibit A: Peremptory Writ of Mandamus (dated January 23, 1986, directing the Planning Commission to set aside its decision of June 17, 1985, which granted Mr. Wada's first application to construct a six- unit condominium at 1024 Bay Street). Exhibit B: Order of the Court of Appeal (dated February 27, 1986, denying Mr. Wada's petition for a writ to reverse the de- cision of the lower court and to rein- state the decision of the Planning Commission) . CC1UWliss ioners April 3, 1986 Page 3 Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: It e Letter to Chairperson of Planning Commission (dated February 25, 1986. requesting the Planning Commission not to rule on the pending application until Mr. Wada concludes his judicial prosecu- tion of his first application in the Supreme Court of California and in the Supreme Court of the United States). Summary of Problems and Requested Solu- tions (dated June 17, 1985. summarizing grounds of opposition and proposed solu- tions) . Statement by Opposing Neighbors (dated June 17, 1985, setting forth grounds of opposition to Mr. Wada's first applica- tion) . Letter of November 26, 1985 to City Attorney from Mr. Wada's lawyer (and re- buttal thereto dated November 27, 1985) (purporting to confirm an agreement with the City to enact emergency legislation to permit Mr. Wada to construct a six- unit condominium on his lot by May 26, 1986) . Petition for Writs of Administrative Mandamus, Mandamus, Certiorari and For Injunctive Relief (without Exhibits) (dated September II. 1985). Thank you for your consideration of these issues and for your continued courtesy. Very truly yours, ~~_ Ve..-- Cl. .,..tut..... Paul M. Van Arsdell, Jr. \ r. (' e 1 LATHAM & WATKINS J. Spencer Letts 2 Paul M. Van Arsdell, Jr. 555 South Flower Street 3 Los Angeles. California 90071 4 (213) 485-1234 5 Attorneys for Petitioner Paul M. Van Arsdell, Jr. 6 7 a 9 10 11 12 13 e SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES PAUL M. VAN ARSDELL. JR., an individual, Petitioner, vs. 14 15 ClTY OF SANTA MONICA, a charter city; CITY COUNCIL OF THE CITY OF SANTA MONICA. an agency of the City of Santa Monica; PLA~~I~G COMMISSION OF THE CITY OF SANTA MONICA. an agency of the City of Santa Monica. 15 17 18 19 Respondents. 20 I I GRANT WADA, an individual, 21 ; Real Party in Interest. 22 23 24 25 26 27 28 UTW .... a W.ll.'t:K.lN8 A.:l"f'OaHTnI .11.7 LA.... ) ) ) No. C 565 342 ) ) ) PEREMPTORY WRIT OF ) MANDAMUS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) The People of the State of California To The City of Santa Monica, a charter city. the City Council of the City of Santa Monica, an agency of the City of Santa Monica, and the Planning Commission of the City of Santa Monica, an agency of the City of Santa Monica, Respondents: 1 2 :5 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lt.TlLUI .. W.t.'tKL'" ATl"Ouftll ...~ I.I. w / . e Judgment having been entered in this action, ordering that a peremptory writ of mandamus be issued from this Court, YOU ARE HEREBY COMP~DED iu~ediately on receipt of this writ to set aside your decisions dated August 13, 1985, and June 17, 1985, in the administrative proceedings entitled Application of Grant Wada, T.T. 44039, C.U.P 385, which proceed- ings are hereby remanded to you, and to reconsider your action in light of this Court's rulings granting Petitioner's motion for stw~ary judgment, and to take any further action specially enjoined upon you by law; but nothing in this writ shall limit or control in any way the discretion legally vested in you; and YOU ARE FURTHER COMMANDED to make and file a return to this writ on or before f:'d,-; c/ , 1~ setting forth what - - / you have done to comply. .IAN 23 1:186 fiUlNK S. ZOL1N, Countt c.w . Clerk Otkk<-t:f.; Deputy t/ j { YAPKo<"iT2 Clerk ~ JOHN L. COLE Judge of the Superior Court LET THE FOREGOING WRIT ISSUE. Dated: ~)...2. II /i j.. o /- 2 - e IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE GRANT WADA, an individual, Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent, PAUL V~~ ARSOELL, an individual, Real Party in Interest. THE COURT: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) BOl8978 (Super.Ct.No. C6~6342) ORDER CJun c~ 'c--. ~ ~." ,." I -1........ - r;= - - W"...1 ~ I~- . ..; i' 11:, ,: : FEE 271986 CLAY ROt..... i,~, . , ..... ---........ r'I ':. -. 1_ -- - The petition for writ of mandamus, filed February 19, 1986, has been read and considered. The petition is denied. (Sherwood v. SUp'erior Court (1979) 24 Cal.3d 183, 186-187.)