SR-407-000-02
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CA:RMM:11483/hpc
City Council Meeting 1-24-89
Santa Monica, California
STAFF REPORT
TO:
Mayor and city council
FROM:
City Attorney
SUBJECT:
Ordinance Amending Municipal Code Sections 9304,
9311, 9312, and 9346 Relating to City Subdivision
Requirements and Adding Section 4812a Relating to
Local Land Use Requirements Applicable to Rental
Units withdrawn from the Rental Housing Market
Pursuant to the Ellis Act
At its meeting on January 10, 1989, the city Council held a
public hearing on a proposed ordinance regulating the use of
properties from which tenants have been evicted pursuant to the
Ellis Act. Following the public hearing, the City council voted
unanimously to continue the public hearing for two weeks in order
to allow for further public input. In addition, the City Council
directed the City Attorney to mail notice of the public hearing
to interested organizations in the city.
In response to this
direction, the ordinance was mailed to a number of tenant and
landlord groups as well as to a number of interested individuals.
The notice indicated that revisions of the ordinance might occur
prior to the January 24, 1989 City Council meeting, but that the
concept of the ordinance would remain the same. In response to
comments made by the public and the City Council at the January
10, 1989 meeting, various revisions were made to the ordinance as
described in more detail below. Copies of this Staff Report and
the accompanying ordinance were also mailed on January 19, 1989,
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JAN 2 4 1989
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to the same interested organizations and individuals who received
the previous ordinance.
RESPONSE TO PUBLIC AND CITY COUNCILMEMBER COMMENTS
1. Lack of Conflict Between state and Local Law.
In Adler v. Elphick, 184 Cal. App. 3d 642 (1986), when three
co-owners acquired a two-unit residential property with the
intent of having two co-owners occupy one uni t and the other
co-owner occupy the second unit, the Court held that a community
apartment was not created because the right to exclusive
occupancy of a particular unit was not specified on the face of
the deed. In Bakananauskas v. Urdan, 88 Daily Journal D.A.R.
15645 (Opinion filed December 14, 1988), two co-owners executed a
written agreement pursuant to which one owner was entitled to
exclusive occupancy of one unit, and a second owner was entitled
to exclusive occupancy of a second unit. The Court held that
this arrangement did not create a "community apartment" for
purposes of state law, reaffirming the earlier holding in Adler.
The ordinance which was initially prepared was intended to
respond to these two cases. The courts have determined that an
arrangement involving co-ownership of real property coupled with
the right to exclusive occupancy of a partlcular unit does not
constitute a "community apartment" unless such right appears on
the face of the deed for purposes of state law. The Adler and
Bakananauskas decisions do not limit local regulation of the
types of situations addressed therein. The city clearly has the
authority to regulate subdivisions that are not regulated by the
SUbdivision Map Act. Government Code Section 66411 states:
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66411. Regulation and control of the
design and improvement of subdivisions are
vested in the legislative bodies of local
agencies. Each local agency shall by
ordinance regulate and control
subdivisions for which this division
requires a tentat1ve and final or parcel
map. In the development, adoption,
revision, and application of such
ordinance, the local agency shall comply
with the provisions of Section 65913.2.
Such ordinance shall specifically provide
for proper grading and eras ion control,
including the prevention of sedimentation
or damage to offsite property. Each local
agency may by ordinance regulate and
control other subdivisions, provided that
such regulations are not more restrictive
than the regulations for those
subdivisions for which a tentative and
final or parcel map are required by this
division, and provided further that such
regulations shall not be applied to
short-term leases (terminable by either
party on not more than 30 days' notice in
writing) of a portion of the operating
right-of-way of a railroad corporation
defined as such by Section 230 of the
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Public utilities Code unless a showing is
made in individual cases, under
substantial evidence, that public policy
necessitates the application of such
regulations to such short-term leases in
such individual cases.
since significant confusion has arisen because of the use of
the term "community apartment" to refer to situations in which an
undivided interest in land is coupled with the right of occupancy
of an apartment thereon, where such right is contalned In the
form of a written or oral agreement separate from the deed
itself, the proposed revised ordinance refers to such situations
as 11 coopera ti ve apartments II instead of .. commun i ty apartments. 11
Therefore, there is no longer any appearance of conflict between
the interests regulated by the state Subdivision Map Act and the
city's SUbdivision Ordinance.
2. Incremental Legislation.
Several members of the public have asserted that the
proposed ordinance unfairly discriminates against those owners of
properties who have opted to withdraw their properties from the
rental housing market pursuant to the Ellis Act. This claim is
without merit.
The City is currently experiencing an abuse of its land use
regulations by owners who have withdrawn properties from the
rental housing market pursuant to the Ellis Act. In connection
with properties which are vacated by means other than the Ellis
Act, other City laws, including the Rent Control removal permit
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requirement, already exist to regulate the conversion of those
properties to other uses. For these reasons, the proposed
ordinance principally addresses properties withdrawn pursuant to
the Ellis Act. It is well-established that legislative reform
need only proceed one step at a time; it need not address all
similar problems at one time. In addition, the accompanying
revisions to the city's subdivision requirements relating to
cooperative apartments apply to all units.
3. Riqhts of Family Members of Owners of Properties
Withdrawn Pursuant to the Ellis Act.
Confusion was expressed about the ability of family members
to occupy properties withdrawn pursuant to the Ellis Act. The
language of the ordinance has been re-drafted to clarify the
rights of family members to occupy former rental units so long as
such family members are neither renters nor owners.
4. Occupancy Permit as Alternative to Conditional Use
Permit.
The Ordinance has been revised to require that an occupancy
permit be obtained from the Planning Department instead of a
conditional use permit. This means that the Planning Director
can grant the permit in all cases except those requiring a
subdivision or parcel map.
SECTION-BY-SECTION ANALYSIS
Section 9304(c). This section retains the current Municipal
Code definition of "community apartment" which corresponds with
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the definition of this term under the Subdivision Map Act, as
interpreted by the courts.
Section 9304(e). This Section amends the Current Municipal
Code definition of IIconversiontf to include II cooperative
apartments. II
Section 9304(f). This Section creates a new definition for
a "cooperative apartment. II This section defines a cooperative
apartment as an undivided interest in land coupled with the right
of occupancy of any apartment, where the occupancy right is
contained in a written or oral agreement other than on the face
of the deed.
Section 9304(u).
Code definition of
This section amends the current Municipal
"subdivision" to include "cooperative
apartments."
Section 9311. This section has been amended to include
cooperative apartments containing five or more units as a
category for which tentative subdivision maps and final
subdivision maps shall be required. This requirement currently
exists for condominiums, community apartments, and stock
cooperatives.
Section 9312. This section has been amended to include
cooperative apartments containing four or less units as a
category for which tentative parcel maps and final parcels maps
shall be required. This requirement currently exists for
condominiums, community apartments, and stock cooperatives.
Section 9346. This Section has been amended to provide that
the Planning Commission may not waive the requirements for a
tentative and final parcel map for cooperative apartments. This
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restriction currently applies to condominiums, community
apartments, and stock cooperatives.
section 4812(a). This Section requires that an occupancy
permit be obtained where property owners seek to occupy a
property which has been withdrawn from the rental housing market
pursuant to the Ellis Act. An occupancy permi t is required
whether the owners seek authorization to occupy the property for
a commercial use or a residential use.
section 4812(b). An occupancy permit for commercial
occupancy of a property withdrawn pursuant to the Ellis Act shall
be granted by the Planning Director if the findings are made that
the occupancy is in conformity with the General Plan and with the
Zoning Ordinance.
Section 4812(c). An occupancy permit for residential
occupancy may be granted in anyone of three situations.
First, the Planning Director may grant a permit if he or she
finds that no more than one unit on the property will be occupied
by owners of the property. (This subsection would not preclude
owners from making alterations to the property to enlarge that
unit if desired.) This subsection clarifies that family members
may occupy other units on the property so long as they are not
owners and no rent is being paid. (If family members who are
also owners wish to occupy more than one unit on the property,
Section 4812(c) (3) applies. If family members pay rent to live
in units on the property, Section 4812(c) (2) applies.) A deed
restriction is required as a condition of approval of such an
occupancy.
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Second, an occupancy permit may be granted by the Planning
Director for use of the property as multifamily rental housing so
long as the owner has obtained certification from the Rent
Control Board of compliance with the requirements set forth in
the Ellis Act and Rent Control Board regulations regarding
re-entry into the rental housing market.
Finally, an occupancy permit for occupancy of the property
as multifamily housing by more than one owner of the property may
be granted, but only if a subdivision or parcel map has been
obtained pursuant to applicable sections of the Municipal Code
and a conditional use permit is obtained in accordance with
certain provisions in section 9061.1.
Section 4812(d).
This subsection establishes a process
whereby the Planning Director's decision on an occupancy permit
may be appealed to the Planning commission.
A Planning
Commission decision on an occupancy permit may be appealed to the
City Council.
section 4812(e). This subsection provides that this Section
does not apply to any occupancy following a lawful demolition of
units withdrawn pursuant to the Ellis Act.
This subsection
exists because in conjunction with a demolition permit,
compliance with other applicable City laws will have been
obtained.
RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be introduced for first reading.
PREPARED BY:
Robert M. Myers, city Attorney
Laurie Lieberman, Deputy city Attorney
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