SR-04-22-1986-12A
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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
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APR 2. 2 1986
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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
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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.
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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
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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
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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;
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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
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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,
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Paul M. Van Arsdell, Jr.
1030 Bay Street, No. 1
Santa Monica, CA 90405
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Barbara W~ltzen
1030 Bay Streett No. 1
Santa Monica, CA 90405
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H. Allen Evans
1030 Bay Street, No.4
Santa Monicat CA 90405
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Honorable Mayor and City Council
April 15, 1986
Page 7
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Lois Evans
1030 Bay Street, No. 4
Santa Monica, CA 80405
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Ken Stringer ~
1030 Bay Street, No.5
Santa Monica, CA 90405
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ennifer S. Jensen
1030 Bay Street, No. 5
Sa on1.ca, CAAl040S
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1030 B~y Street, No. 2
Santa Monica, CA 90405
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1030 Bay Street, No.3
Santa Monica, CA 90405
cc: Ms. Penny Perlman,
Chair, Planning Commission
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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;
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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:
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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.
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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.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PAUL M. VAN ARSDELL. JR.,
an individual,
Petitioner,
vs.
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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.
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19 Respondents.
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I GRANT WADA, an individual,
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; Real Party in Interest.
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UTW .... a W.ll.'t:K.lN8
A.:l"f'OaHTnI .11.7 LA....
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) PEREMPTORY WRIT OF
) MANDAMUS
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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:
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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
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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
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JOHN L. COLE
Judge of the Superior Court
LET THE FOREGOING WRIT ISSUE.
Dated: ~)...2. II /i j..
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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:
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BOl8978
(Super.Ct.No. C6~6342)
ORDER
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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.)