SR-092308-6ATo: Mayor and City Council
From: Eileen Fogarty, Planning & Community Development
Subject: Appeal of Planning Commission's Approval of Vesting Tentative Tract
Map fora 12-unit Condominium Project at 858 Third Street
Recommended Action
Staff recommends the City Council deny appeal 08APP-012 and uphold the Planning
Commission's approval of Tract Map 06TM-040 allowing the airspace subdivision for
the purpose of constructing a new 12-unit residential condominium project at 858 Third
Street subject to the recommended findings and conditions.
Executive Summary
The applicant, Federal Avenue Partners, LLC, requests approval of Tentative Tract Map
(06TM-040) to allow an airspace subdivision for the purpose of constructing a new 12-
unit residential condominium project comprised of 10 market-rate units and 2 moderate-
income level units.
The Planning Commission approved the application after making the requisite findings
concluding that the project is consistent with the applicable General Plan and zoning
regulations, is not likely to cause environmental damage, and is physically suitable for
the site.
On July 30th, 2008, the appellants filed appeals for the Commission's approval of 858
Third Street and 860 Third Street (Attachment A). 860 Third Street also .involves a
tentative map fora 12-unit condominium project on the adjacent parcel. The Planning
Commission's approvals of the Tentative Tract Maps were appealed on the basis of the
following claims:
• Project site (858 Third Street) and adjacent project site (860 Third Street)
are occupied by one structure and therefore should be considered as one
site;
• Project design flaws related to air, light, common area, green space,
building height and massing;
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• Concerns related to noise, dust, fumes, traffic, parking, and health of
neighboring residents due to proposed construction;
• Inadequate public noticing;
Inaccurate and inadequate environmental review; and
• . Contrary to the best interests of the City and residents.
As detailed below, Staff supports the Planning Commission's action in approving the
project.
Background
On December 12, 2006, the applicant applied for a Vesting Tentative Tract Map to allow
an airspace. subdivision fora 12-unit condominium complex. The applicant, Federal
Avenue Partners LLC, also filed a separate application fora 12-unit condominium
project for the adjacent site to the south at 860 Third Street.
A CEQA Class 32 Exemption determination was completed on February 21, 2008. The
environmental review evaluates the subject site and the adjacent project site.
Project /Site Information
The following table provides a brief summary of the project location:
District:
Land Use
Element Designation
Parcel Area (SF):
Parcel Dimensions:
Existing On-Site
Improvements (Year
Built):
Rent Control Status:
R3, Medium Density
Multiple Residential
High Density
Residential
11,250
75'W x 150'D
14 unit apartment
building constructed
in 1954 to be
demolished
14 Rent Controlled
Units
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,.
Site Location Map ~ '~~~~
Adjacent Zoning Surrounded by R3
Districts and Land Uses: Zoned Parcels with
Multi-Family
Residential Units
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The proposed subdivision is consistent with the City's General Plan in that a twelve (12)
unit condominium subdivision is proposed in an area where High Density Residential
uses are encouraged, and the proposed density of development complies with the
limitations established for this land use district. The proposed design of the units will
also meet the intent of the General Plan by not exceeding three (3) stories or 35 feet in
height. Developments of similar use and density are also prevalent in the immediate
neighborhood.
Discussion
Planning Commission Action
At its April 16th, 2008 hearing, the Planning Commission reviewed the proposed project
and continued the item to allow the applicant and Staff to further clarify information
related to both 858 and 860 Third Street project sites. More specifically, the Planning
Commission requested the following:
• The verification of the property sites as two separate parcels;
• The applicability of the Construction Rate Program;
• The existing buildings' potential as historic resources
• The methodology used for the traffic analysis and issues related to alley activity,
• The cumulative impacts of side-by-side projects, and;
• The projects' consistency with the Housing Element and the Affordable Housing
Production Program.
At its June 18, 2008 hearing, the Planning Commission reviewed the requested
information. The Planning Commission voted to approve the Vesting Tentative Tract
Map with added .conditions. The added conditions included requiring that the
Architectural Review Board pay special attention to the project's landscaping, use of
property line walls, visual permeability and pedestrian orientation, and to review the
building's design in a manner that is compatible with the adjacent site at 860 Third
Street.
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More information and details can be found in the staff reports which can be viewed at
the following web addresses:
April 16th, 2008 Hearing
http://www01.smgov.nettplanning/commission/agendas/pc2008/ps2008041608-B pdf
June 18th, 2008 Hearing
http://www01.smgov.net/planning/commission/agendas/pc2008/ps2008061808-A htm
Appeal Analysis
On July 30th, 2008, the appellants appealed both the Commission's approval of 858
Third Street and 860 Third Street (Attachment A). The appellants are tenants of 858
and 860 Third Street. The appellants' claims are the same for both appeals and are
assessed below.
Separate Project Sites
The appellants state that the subject site (858 Third Street) and adjacent project site
(860 Third Street) are occupied by .one development and therefore should be
considered one project site. Specifically, the appellants identify existing conditions of a
shared wall between the two parcels and shared use of amenities including the
courtyard area, laundry rooms, and parking spaces.
The two adjacent parcels indeed share a dividing wall located below grade that serve to
separate the existing subterranean garages. However, Staff has confirmed that each
building is situated on a separate parcel. Staff's conclusions are based on the review of
the following materials:
• Title Report & Los Angeles County Assessor's Parcel Maps (Attachment B),
describing and illustrating two lots and separate parcel numbers;
• Building address records; and (Attachment F)
• Rent Control Registrations. (Attachment F)
Declarations prepared by the tenants state that the courtyard style apartments and
amenities are used as one development even. though each property includes a separate
laundry facility and parking area. Although the property management may currently
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allow the shared use of the various amenities for the existing structures, the proposed
development on the subject site and adjacent site will constitute independent projects
with separate access, utilities, and amenities. The construction and operation of each
of the proposed condominium buildings will be under separate permits and have
separate Home Owner Associations.
The appellants' statement also refers to a previous application filed for 858 Third Street
that was reviewed by the City Council on August 10, 1993. However, Council action on
a different development application over fifteen years ago is not relevant to this matter.
Staff finds that the evidence establishes the subject site and the adjacent project site
are two separate parcels and the filing of separate applications was appropriate.
Project Design
The appellants state that the project possesses design flaws related to air, light,
common area, green space, building height and massing in comparison to the existing
building.
The proposed project application consists of a map that represents the airspace division
delineating the proposed number of units and building footprint. The proposed project
does not exceed the Development Review threshold of 22,500 square feet and
therefore issues related to design, size, massing, or neighborhood compatibility are not
part of this review.
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Detailed building design, colors, materials, and landscaping are not submitted in
conjunction with a Tentative Tract Map application. Such details will subsequently be
reviewed by the Architectural Review Board where the design considerations related to
neighborhood context evaluated. As a general condition of approval of the tentative
map, the project plans for the condominium development will be subject to a complete
Code Compliance review when the condominium plans are submitted for plan check
and must comply with all applicable City of Santa Monica ordinances, regulations, and
policies prior to building permit issuance. The Planning Commission's conditions of
approval for the project also included specific direction for the Architectural Review
Board to review architectural theme,. full design integration of the affordable units,
compatibility of the adjacent project site, landscaping, and pedestrian orientation.
Environmental Analysis and Construction Impacts
Concerns related to construction noise, dust, fumes, traffic, parking, and health of
neighboring residents are also raised in the appellants' appeal statement.
Environmental consultants, PCR Services, Inc., prepared a Class 32 exemption for the
proposed project. The project is exempt from the California Environmental Quality Act
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Bird's Eye View of Massing and Density of Immediate Neighborhood
(CEQA) pursuant to Class 32, Section 15332 (b) of the CEQA Guidelines, where
projects characterized as in-fill development, meet the following conditions:
1. The project is consistent with the applicable general plan designation and all
applicable General Plan policies as well as with applicable zoning designation
and regulations.
2. The proposed development occurs within the city limits on a project site of no
more than five acres substantially surrounded by urban uses.
3. The project site has no value as habitat for endangered, rare, or threatened
species.
4. Approval of the project would not result in any significant effects relating to traffic,
noise, air quality, or water quality.
5. The site can be adequately served by all required utilities and public services.
Documentation verifying compliance with the above conditions is included with this
report as Attachment C. The environmental review evaluates the subject project site
and adjacent project site located at 860 Third Street. Although the two projects
constitute separate developments since they will not contain shared access or
amenities, the potential environmental impacts were reviewed jointly as a conservative
approach.
The technical data contained in the report concluded that no significant air quality or
noise impact would occur as a result of the proposed project. Furthermore, a traffic
analysis determined that since the proposed developments consist of fewer units than
presently exists, fewer vehicle trips will be generated than the existing buildings. As a
result, the project would not result in any significant traffic impacts.
With respect to the appellants' statement that the commencement of construction would
jeopardize the health and safety of the tenants on the adjacent property, the
Department of Environmental and Public Works Management must approve a
construction plan for. each project site. Projects involving excavation abutting an
existing building or property line wall are required to submit detailed, technical
documents such as a geotechnical report and an excavation and shoring plan for review
by the City's Building & Safety Division. Construction sites are also subject to
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compliance with the City's Noise Ordinance and subject to construction .noise design
controls. These design controls include limiting the construction activity hours, days and
decibel levels, and providing a list of measures to be implemented to minimize noise
impacts on nearby residences.
Additionally, on March 11, 2008 the City Council clarified the applicability of the City's
Construction Rate Program that limits the number of projects in close proximity to each
other. The program regulates the timing and distribution of construction projects during
the building permit process.. ,The two projects located at 858 and 860 Third Street are
subject to the Construction Rate Program. Consequently, only one project site can be
issued a building permit within a 15-month period.
Public Notice
The appellants state that the Planning Commission hearings were inadequately noticed.
Specifically, declarations regarding a lack of notice have been attached in the
appellants' materials stating that the declarant did not receive a notice of public hearing
for the Planning Commission meetings.
The applicant provided a list of mailing labels prepared and certified by Joseph Cahn,
Civil Engineer & Land Surveyor. Notices .were mailed in accordance with noticing
requirements set forth in SMMC 9.20.14.010 for the hearing on April 16, 2008 and
continued hearing on June 18, 2008. A 300-foot radius map and list of property owners
and building occupants were submitted as part of the application and are contained in
the project file. Additionally, the September 9, 2008 City Council meeting has been
noticed in accordance with legal requirements.
Planning Commission Findings
The appellants assert that the Planning Commission's findings for approval are contrary
to the best interests of the City. Specifically, the appellants state that the goals for
affordable housing are in conflict with the findings for approval.
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Pursuant to SMMC 9.20.14.040, the following findings are required in order to approve
a tentative map:
1. The proposed map is consistent with applicable general and specific plans as
specified. in Government Code Section 65451.
2. The design or improvement of the proposed subdivision is consistent with
applicable general and specific plans.
3. The site is physically suitable for the type of development.
4. The site is physically suitable for the proposed density of development.
5. The design of the subdivision or the proposed improvements are not likely to
cause substantial environmental damage or substantially and avoidably injure
fish or wildlife or their habitat.
6. The design of the subdivision or the type of improvement is not likely to cause
serious public health problems.
7. The design of the subdivision or the type of improvements will not conflict with
easements, acquired by the public at large, for access through or use of, property
within the proposed subdivision.
8. The proposed subdivision is consistent with any ordinance or law of the City of
Santa Monica.
The Planning Commission found that the proposed project will not exceed the permitted
building height of 35-feet and unit density limitations set forth in the General Plan. The
site is suitable for development in that the parcel is within an urbanized area and
adequately served by existing roadways and infrastructure and can physically
accommodate the proposed development. Additionally, the proposed project is
consistent with the City's current Housing Element. Housing Plan Goal. 2.0 is to
"increase the supply of housing affordable to very low, low, and moderate income
persons." The Housing Element goal is further supported by Policy 2.3: "to cooperate
with housing providers to promote the development and operation of rental housing for
very low and low income households, and ownership housing for low and moderate
income household units in compliance with the City's Affordable Housing Production
Program.
The applicant is providing two (2) ownership uriits in accordance with the Affordable
Housing Production Program and will be required to meet all of its applicable provisions
including sales price, monthly payment, and limited equity and resale restrictions. The
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program requires verification of eligibility and household income of interested
buyers/renters.
Financial Impacts & Budget Actions
This recommendation has no budget or fiscal impact.
Prepared by:
Grace Cho, Associate Planner
Forwarded to Council:
~/
P. L mont Ewell
City anager ~
Attachments:
A. Appeal Form & Materials
B. Title Report & Los Angeles County Assessor's Office Parcel Map
C. Class 32 Exemption Environmental Assessment
D. Vesting Tentative Tract Map No. 68399
E. Planning Commission Statement of Official Action
F. Rent Control Registrations and Permits
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APPELLANTS' FURTHER SUPPLEMENTAL POINTS FOLLOWING
SEPTEMBER 16, 2008 CITY COUNCIL HEARING
APPEAL NUMBERS: 08APP-011, O8APP-012
Hearing Date: September 23, 2008
Agenda Numbers: 6a and 6b
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I. Ellis Act. The buildings are attached Rhysical structures, not detached physical
structures within the meaning of the Ellis Act & corresponding SM Rent Control
Regulations. An applicant must remove from rental all accommodations, SMRC
Reg. 1603. An accommodation is defined as "a detached physical structure
containing four or more units," SMRC Reg. 1601, Gov. Code Sec. 7060(b)(1)(A).
• There is no clarification for what is a "detached physical structure," in the
Ellis Act, any case law, or otherwise. Defmitions are hard to find: Examples:
- The SMMC defines an "Accessory building" as a "detached"
building, if located more than 6 feet from the principal building or if
not connected by a fully enclosed space (SMMC 9.04.02.030.005).
- Miriam Webster Online defines "detached" as "standing by itself:
separate, unconnected; especially: not sharing any wall with another
building.',
• Reasons why 858-860 are attached physical structures:
a. Common foundation supporting wall that spans both sides of the
property at the entrance to the underground garages -this is a
reinforced, singly poured concrete foundation (see fotos)
b.Common single poured driveway
o.Common single poured walkway access -main entrance
d.Desi~ned, operated, maintained, bought and sold, as a single
building complex•
II. Plannine: Nei¢hborhood Compatibility. The proposed piecemeal development
would allow only %z of the building complex to be built, with no requirement that
both halves be developed (applicant's plan in 1993 was to develop only %2 of the
complex). This would result in a design flaw: the building complex was
designed as a single complex. One half of a building is not a whole; one half of
the building was not designed to stand alone.
IIL Adverse Health and Safety Impacts. Allowing piecemeal development would
create a serious, adverse impact upon the health and safety of the citizens of Santa
Monica; that are significant, quantifiable, direct, and unavoidable impacts, as
described in Gov. Code Section 6589.5 (j) (i).
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• Upon the tenants at 858 3'a Street (the "remaining undeveloped parcel):
a. Risk of injury in removal of common wall. No evidence has been
submitted to suggest that the common foundation supporting wall,
spanning the alleyway side of both apartrnent structures, and
formed by a single pour of reinforced concrete, could safely be
severed, or be severed without weakening the wall (see fotos).
b. Risk of injury to and extreme difficulty (if not impossibility) in
entering underground garage during construction
o. Risk of injury and risk of inaccessibility in emergencies or to
.disabled tenants due to inadequate walkway access
d. Loss of parking to at least one tenant (there are 2 parking spaces
less than the number of apartments; those without spaces are at 860
Third St.). There are no parking alternatives in the neighborhood.
e. .Loss of parking temporarily to 6 tenants at 858 in subterranean
parking garage to redesign, regrade and resurface common
driveway and sever and replace supporting wall.
f. Removal of second laundry room, extended common conriyard,
adequate walkway, giant bird of paradise, and underground
.parking, is such a reduction of amenities, that it denies habitability
and quiet enjoyment of the premises and constitutes a constructive
eviction of the 858 tenants, which is also a specific exception to
the Ellis Act. See Gov. Code Sec: 7060(1)(d) and Civil Code .1925
et seq..
• Upon the 92 seniors who reside in Pacific Gardens, the assisted living
facility sharing the alleyway spanning the entire complex. The city's
Construction Rate Program, the purpose of which is to mitigate adverse
health and safetyimpacts of construction in a neighborhood, was not
intended to allow the option of a single applicant to demolish and
construct two sites at the exact same location, when the applicant has the
option to demolish and construct it as one site. See Ordinance CCS 2256,
Sec. 1(i). The environmental review was inadequate because it "assumed"
that the construction impacts would be doubled in a single time frame,
rather than studying the actual impacts, which would be a prolonged
construction period, spanning 3 to 5 years, with a 15 month interlude. Nor
did it consider this prolonged impact to fragile seniors in the last few years
of their lives.
IV: No Delav. Any delays in the tentative map approval process have been created
by the applicant's failure to disclose, or to acknowledge when asked at the
Planning Commission hearing, that he had previously unsuccessfully attempted to
develop only one-half of the apartment complex some 15 years ago. The issues
and facts are exactly the same.
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