SR-111108-7B~;~Yof City Council Report
Santa Monica
City Council Meeting: November 11, 2008
Agenda Item: `"°~
To: Mayor and City Council
From: Eileen Fogarty, Director, Planning & Community Development
Subject: Introduction and First Reading of an Ordinance Amending SMMC Chapter
9 (Zoning Code) Pertaining to Regulations Defining and Governing
Substantial Remodels of Legal Non-Conforming Buildings
Recommended Action
Staff recommends that the City Council introduce for first reading the attached
ordinance modifying the Santa Monica Municipal Code, which incorporates the
provisions of Interim Ordinance 2202 (CCS) with two changes to the Adjustment criteria,
with a finding that the proposed text amendment is catec~rically exempt under CEQA.
Executive Summary
The City has a significant number of buildings that were legally constructed, but do not
comply with newer zoning regulations. The Zoning Ordinance allows these "legal
nonconforming" buildings to be maintained, remodeled and even enlarged .provided the
new additions meet current Code and the work does not exceed the threshold at which
point it becomes a "substantial remodel." A substantially remodeled structure requires
compliance with all current Code requirements. In 2004, interim substantial remodel
regulations were adopted because the City was experiencing problems enforcing the
Code. In addition to improving the definition of a "substantial remodel," the interim
regulations provided three exceptional circumstances in which a project would not be
required to conform to current Code requirements. even if substantially remodeled.
These involve both residential and non-residential structures and historic buildings.
The interim requirements have worked well and this report recommends making
permanent the definition of a substantial remodel contained in Interim Ordinance 2202
(CCS), which will expire in January 2009 and may not be extended. However, staff
proposes the following changes: 1) Remove the adjustment provision that allows
.substantially remodeled commercial or industrial buildings to be enlarged beyond 50%
without meeting Code requirements; and 2) Allow an adjustment request to be
considered on a case-by-case basis for buildings on residential properties of standard
size when the project exceeds 50% of wall removal due to discovery during construction
of concealed structural damage, such as by termites or dry rot. The proposed text
amendment has no financial or budgetary impacts.
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Background
In 2004, PCD staff brought forward a proposal to amend zoning regulations pertaining
to substantial remodels in order to clarify the intention of the definition and related
procedures. At the time, there were numerous instances that demonstrated that the
adopted Code provisions were prone to differing interpretations during plan check, hard
to enforce in the field, and in some cases led to unintended consequences. The City
experienced several cases where projects were allowed to essentially reconstruct entire
non-conforming buildings without complying with new development standards and
without addressing the lack of on-site parking because the projects had not been
considered substantially remodeled. On the other hand, some homeowners of
potentially significant historic resources were choosing to demolish rather than
appropriately remodel these resources as the substantial remodel provisions in the
Zoning Code made remodeling economically infeasible. Additionally, situations arose in
which unforeseeable damage was uncovered during construction that required removal
of existing building components such that the project became a substantial remodel. In
such cases, the previously approved setbacks, parking and other standards must be
reexamined and work must be stopped while new plans are approved.
To address the identified issues, the City Council adopted Interim Ordinance Number
2136 (CCS) on August 10, 2004, which clarified the definition of "substantial remodel"
and the requirement to bring a property up to Code requirements if a project on that
property is deemed to be a substantial remodel. The Interim Ordinance includes
exceptions for properties with historic resources, including those listed on the City's
Historic Resources Inventory (HRI). There are also exceptions for. commercial property
owners that seek to upgrade their properties for structural safety without adding floor
area, within specific limitations, and for residential properties to temporarily separate the
home from its foundations in order to upgrade to seismic safety standards, provided that
exterior wall elements remain in place at all times during construction.
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The interim ordinance also contains two adjustment procedures that can allow
exceptions for commercial and industrial structures to exceed 50% additional floor area,
and for situations in which deteriorated support structures are discovered after
construction or demolition is initiated. In such cases, a substantial remodel may not
require compliance with certain Code requirements if the Zoning Administrator approves
an Adjustment on a case-by-case basis.
The City Council extended these provisions through the adoption of Ordinance Number
2143 (CCS) on November 8, 2004, and through the adoption of Ordinance Number
2202 (CCS) on October 28; 2006. This interim ordinance will expire on January 24,
2009 and may not be extended past this date.
The Planning Commission adopted a Resolution of Intention to initiate this Zoning
Ordinance text amendment on September 3, 2008, and held a public hearing on
October 15, 2008.
Discussion
It is difficult to quantify the use of these interim provisions since the first interim
ordinance was introduced, as its implementation cannot be measured by reviewing
specific permit activity. According to City Planning staff, the clarifications in this
ordinance have helped staff, particularly at the Planning counter, to explain the
substantial remodel requirements more clearly to applicants and to review plans to
determine whether the project is a substantial remodel. Building & Safety inspectors
have also found that the new language has helped them with their enforcement in the
field. It is also apparent that most of the problems associated with the prior language
have been eliminated by the interim ordinance. However, inspectors still note that there
are instances in which contractors remove more wall and structural elements than may
be indicated on a plan and attempt to circumvent the system. This remains an ongoing
issue about which staff must be continuously vigilant.
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Adjustments for Unexpected Structural Damage
At the time of approval of .the initial interim ordinance, the Council .held extensive
deliberations on the topic of whether to allow an adjustment in situations in which
additional structural damage is discovered during construction such that more than 50%
of the walls must be removed, rendering the project a substantial remodel. There was
concern on the one hand that such situations result in significant financial hardship for a
homeowner that would then be required to completely redesign a project in order to
meet all Code requirements. On the other hand, Council members were concerned
about those that would use the adjustment process to deliberately "discover" dry rot and
termite damage after beginning construction, and then use this. new "loophole" to rebuild
non-conforming walls on a "mansion." As a compromise, the Council introduced an
adjustment opportunity for such situations only on sub-standard sized lots, for which it is
clear that there may be a hardship.
Although the adjustment process was proposed to address. homeowner hardships due
to unexpected structural damage found during construction, in the past four years, there
have been no applications for adjustments under this ordinance. Thus, there is no test
case to show how this process might have been helpful. According to Planning Counter
staff, since the interim ordinance was adopted, three to four cases come up each year
in which a project is stopped during construction as exterior wall removal gets close to
exceeding 50%. However,. in each case, the property was not sub-standard and
therefore the homeowner was not entitled to apply for an adjustment. In-each case, the
contractor worked with Building & Safety staff to resolve the situation through structural
solutions .that maintained more of the original wall material so as to avoid a
determination of substantial remodel. None of the cases in which this situation arose
was actually resolved by redesigning-and moving the building in to comply with current
setbacks.
Staff proposes to maintain this adjustment process but to remove the restriction to sub-
standard lots, and to add language that places the burden on the applicant to
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demonstrate that the additional structural damage could not be identified earlier and
was discovered during the course of .construction. In such cases, other typical
adjustment findings would be replaced with the criteria allowing the adjustment to be
considered by the Zoning Administrator. This recommendation provides more flexibility
when an exception is encountered, and based on past experience, would have little or
no effect on the ultimate footprint and thus no impact on neighboring structures. As the
adjustment process requires an application and discretionary Zoning Administrator
hearing, staff does not anticipate that the process will be improperly used.
Adjustments for Commercial and Industrial Buildings.
The Interim Ordinance includes an adjustment procedure to allow the Zoning
Administrator to waive requirements that result from a determination of substantial
remodel for commercial or industrial buildings that exceed 50% addition over a five year
period. Initially, this adjustment was proposed to address concerns that the proposed
ordinance might .have unanticipated consequences for this class of building and that
such an outlet may be needed. However, there have been no applications for this
adjustment, and staff is concerned about the broad spectrum of variance offered in this
language. As stated, the interim ordinance could allow incremental commercial or
industrial expansion without providing beneficial Code requirements, such as parking or
traffic reduction requirements or design. and landscaping features. Therefore, the
proposed Text Amendment does not include this provision.
Historic Structures
In reviewing the effect of the interim ordinance on the Landmarks program, staff has
found that it has been positive, providing the flexibility and framework needed for
Landmark and historic property owners to make modifications while meeting the
Secretary of Interior's Standards for the Rehabilitation of Historic Properties. More
historic property owners have elected to preserve their historic structures as a result of
the interim ordinance, and several are presently in the pipeline.
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Foundation systems on many older buildings do not meet newer seismic safety
standards. The flexibility provided in the interim ordinance has allowed a number of
property owners to complete important structural upgrades to their homes. Based on
input from City Planning and Building & .Safety staff, it is evident that the interim
ordinance provisions pertaining to historic resources have been effective and should be
made permanent.
Attachment A contains the Draft Ordinance, which amends SMMC Section
9.04.02.030.825, Sub-Chapter 9.04.18, and Part 9.04.20.34.
Consistency with the General Plan
In order to adopt the proposed text amendment, the City Council must find that the
amendment is consistent with the City's General Plan and that it promotes public health,
safety and general welfare.
The proposed amendment is consistent in principle with several of the goals, objectives
and policies of the General Plan,. including:
• The General Plan Safety Element (1995) Policy 1.2 states that: The City shall
strengthen the project permit and review process to ensure that proper actions
are taken to mitigate the impact of seismic hazards, to encourage structural and
non-structural seismic design and construction practices that minimize
earthquake damage in critical facilities and to prevent the total collapse of any
structure designed for human occupancy:
A clear definition of substantial remodel helps the City to enforce the Building
Code provisions that ensure safe construction of new and remodeled buildings.
By providing exceptions whereby Zoning Code provisions may be waived. in
order to allow a property owner to complete structural improvements, this text
amendment will encourage owners of existing older buildings iri all parts of the
city to improve their structural safety.
• i ne ~enerai Tian riistonc Nreservation Element (2002) Policy 1.3,2 states:
Ensure that municipal regulations are compatible with preservation.
• The General Plan Land Use Element (1984~Policy 3.1.3 states: Encourage
retention of historic and architecturally significant resources."
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The requirement to make a property comply with all Zoning regulations if work
done to that building constitutes a substantial remodel-may potentially result in
the loss of a historic property's character defining features. The. exception for
historic properties that are undergoing rehabilitation consistent with the
Secretary of Interior's Standards in the proposed ordinance gives priority to
historic character. over property- development standards and is consistent with
the LUE and HPE's policies to retain historic resources and to make the
Municipal Code compatible with preservation objectives.
Commission Action
The Planning Commission held a public hearing on October 15, 2008, to discuss the
proposed ordinance. The Commission voted unanimously to recommend adoption of
the proposed provisions with two modifications:
1) Expand the criteria for .hidden damage discovered during construction. In
addition to dry rot and termite damage the recommendation would include other
concealed structural damage. Staff has incorporated this recommendation into
the attached ordinance proposal
2) Allow a new Adjustment procedure for cases where walls with substandard
setbacks that are already known to be structurally unsound need to remain in
place for a project not to be classified as a "substantial remodel" and where the
property owner. wishes to retain those walls. The recommendation would allow
the property owner to request an Adjustment to replace the unsound walls (rather
than strengthening the existing walls to comply with safety codes) provided that
at (east 50% of the walls in the final structure are replaced substantially in-kind, in
the same location and similar to the original walls.
The second recommendation is a new category of exception that would allow a property
owner to replace most. or even all of the building walls and still retain the building's non-
conforming setbacks and substandard parking. The Commission's intention with this
proposal is to encourage improved structural safety by allowing buildings that do not
qualify as historic to be reconstructed and remodeled without complying, with current
zoning requirements. Such a policy would represent a significant change in direction
from the current Code that requires properties to be upgraded to current zoning
standards when a large remodel or expansion takes place. Although the Commission's
proposal could be included if directed by the Council, staff recommends that it would be
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more appropriate to consider the implications of this type of policy change as part of the
upcoming Zoning Ordinance update.
It is also noted that the Zoning Administrator may already grant setback Adjustments
per Section 9.04.20.34.030(g), and setback Variances per Section 9.04.20.10.30 for
unusual parcel configurations.
Alternatives
As an alternative to the recommended actions, the Council may choose to adopt the
proposed text amendment with revisions to any or all of its provisions. The Council may
also choose not to adopt the subject ordinance. In this case, the Interim Ordinance will
expire in January 2009 and the definition and processes governing substantial remodel
will again be regulated by the provisions of the adopted Zoning Code.
Environmental Analysis
The proposed ordinance is exempt from the provisions of the California Environmental
Quality Act (CEQA) pursuant to Section 15061(b)(3) in. that it can been seen with
certainty that the proposed ordinance does not have the potential to significantly impact
the environment, since the proposed ordinance amendment merely clarifies adopted
zoning regulations and encourages historic preservation. There are no reasonably
foreseeable impacts such as a direct or indirect physical change in the environment that
would result from the adoption of the proposed ordinance.
Public Outreach
In compliance with SMMC 9.04.20.22, notices of the proposed text amendment for both
the Planning Commission and City. Council hearings were published in the Santa
Monica Daily Press a minimum of 10 days prior to the hearings.
Financial Impacts & Budget Actions
The proposed action has no financial or budgetary impacts.
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Prepared by:
Elizabeth Bar-EI, AICP, Senior Planner, Community & Strategic Planning Division
Approved:
ATTACHMENTS:
A. Draft Ordinance
B. Interim Ordinance No. 2202(CCS)
C. Planning Commission staff report
Forwarded to Council:
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ATTACHMENT A
DRAFT ORDINANCE
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F:\MuniciaplLaw\Share\LAWS\BARRY\substantial remodel ordinance CC 11-11-08
City Council Meeting 11-11-08 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTIONS
9.04.02.030.825 AND 9.04.20.34.030 AND ADDING SECTION 9.04.18.085 TO THE
ZONING ORDINANCE TO MODIFY THE THRESHOLD AT WHICH A STRUCTURE IS
DETERMINED TO BE SUBSTANTIALLY REMODELED AND ESTABLISHING THE
PROCEDURES FOR EXCEPTIONS AND ADJUSTMENTS IN SPECIFIED
CIRCUMSTANCES
WHEREAS, a legal, non-conforming building has been substantially remodeled
when it has been added to or altered to such a degree that the entire building must
conform to all current applicable zoning regulations; and
WHEREAS, the substantial remodel provisions. in the City's Zoning Ordinance
are intended to balance the City's goal for the orderly termination of nonconforming
buildings in order to promote the public health, safety and general welfare with the City's
desire to promote structural improvement of existing buildings and allow the modest
alteration or expansion of nonconforming structures; and
WHEREAS, the substantial remodel provisions contained in the City's Zoning
Ordinance are difficult to interpret and implement; and
WHEREAS, even when properly implemented, these provisions can lead to
unintended results; the City had prior to the adoption of the interim ordinances
described below approved commercial projects that have permitted the owner to
1
essentially. reconstruct entire nonconforming buildings without complying with new
development standards because the projects had not been substantially remodeled
under current law; and
WHEREAS, historic structures contribute individually and collectively to the City's
historic, aesthetic and cultural heritage; and
WHEREAS, the need to repair or replace cripple walls, footings, and foundations
of landmarked structures may be appropriate. to ensure a safe building, but may be
hindered by .the substantial remodel provision which would require that the entire
property be brought into compliance with current Zoning Code; and
WHEREAS, homeowners of potentially significant resources are increasingly
choosing to demolish these resources rather than simply remodel them due to
difficulties they encounter in complying with the substantial remodel provisions; and
WHEREAS, the current substantial remodel provisions may also make it difficult
for homeowners of nonconforming structures generally to reasonably improve the safety
and functionality of their home; and
WHEREAS, due to these circumstances, homeowners may elect not to make the
safety- upgrades or chose to demolish existing improvements and rebuild rather than
maintain the existing structure; and
WHEREAS, in light of these concerhs, the City Council adopted Ordinance
Number 2136 (CCS) oh August 10, 2004, Ordinance Number 2143 (CCS) on
September 28, 2004, and Ordinance Number 2202 (CCS) on October 28, 2006 which
modified the threshold at which a structure is determined to be substantially remodeled,
2
established .exceptions to the substantial remodel requirements, and- authorized the
Zoning Administrator to grant adjustments in specified circumstances; and
WHEREAS, on September` 3,` 2008, the Planning Commission adopted a
Resolution of Intention to initiate this Zoning Ordinance text amendment; and
WHEREAS, on October 15, 2008, the Planning Commission held a public
hearing on the proposed text amendment and recommended to the. City Council that it
adopt the proposed amendment with certain specified modifications; and
WHEREAS, the City Council held a public hearing on this proposed ordinance on
November 11, 2008; and
WHEREAS, the proposed ordinance is consistent in principle with the goals,
objectives, policies, land uses and programs specified in the adopted General Plan in
that Policy 1.2 of the General Plan Safety Element (1995) provides that "the City shall
strengthen the project permit and review process to ensure that proper actions are
taken to mitigate the impact of seismic hazards, to encourage structural and non-
structural seismic design. and construction practices that minimize earthquake damage
in critical facilities and to prevent the total collapse of any structure designed for human
occupancy," Policy 1.3.2 of the General Plan Historic Preservation Element (200) states
that the -City should "ensure that municipal regulations are compatible with
preservation," and Policy 3.1.3 of the General Plan Land Use Element (1984) which
states that the City should "encourage retention of historic and architecturally significant
resources;" and,
WHEREAS, the City Council. finds and declares that the public health, safety and
general welfare require the adoption of the proposed ordinance in that the Zoning
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Ordinance modification will assist the City in enforcing Building Code provisions that
ensure safe construction of new and remodeled buildings, encouraging owners of
existing older buildings throughout the City to improve their structural safety,. and
enhancing the Zoning Ordinance's compatibility with preservation objectives by giving
priority to historic character instead of property development standards thereby
promoting the retention of historic resources,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 9.04.02.030.825 is hereby
amended to read as follows:
9.04.02.030.825. Substantial Remodel.
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The alteration of or addition to an existing legal nonconforming
building to such a degree that the entire building must conform to all
current, applicable zoning regulations including but not limited to, land
use approvals, setbacks, height and parking. Structures substantially
remodeled shall also be considered demolished and subject to Part
9.04.10.16 of Subchapter 9.04:10 of the Zoning Ordinance.
SECTION 2: Section 9.04.18.085 is hereby added to the Santa Monica Municipal
Code to read as follows:
9.04.18.085. Substantial Remodel.
(a) An existing nonconforming building that constitutes a
substantial remodel pursuant to Section 9.04.02.030.825 shall lose any
leaal, non-conforming status rr5hicli`f'may have had and may only be
replaced or rebuilt if the entire structure. is made to comply with all current,
applicable Zoning Code requirements.
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(b) An alteration of or addition to an existing legal nonconforming
at any time over a five year period:
More. than fifty percent of the exterior walls are removed or are
no longer a necessary and integral structural component of the overall
building. Elements of the exterior wall include columns. studs, cripple
walls, or similar vertical load-bearing elements and associated footings.
However, existing exterior walls supporting a roof that is being modified to
accommodate a new floor level or roofline shall continue to be considered
necessary and integral structural components, provided the existing wall
elements remain in place and provide necessary structural support to the
building upon completion of the roofline modifications.
The calculation for determining whether a structure is substantially
remodeled shall be based on a horizontal measurement of the perimeter
exterior wall removed between the structure's footings and the ceiling of
the first story, as defined in Chapter 8.12 of the Santa Monica Municipal
Code.
(2) In commercial or industrial buildings not principally supported
by exterior bearing walls, more than fifty percent of the principal support
structure including columns structural frames and other similar primary
structural elements, is removed or no longer a necessary and integral
structural component of the o~eratl buildina.
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(3) New floor area is added to a commercial or industrial building
that exceeds fifty percent of the existing floor area of the building.
(c) Notwithstanding subsection (b) of this Section, an existing
nonconforming building shall not lose its legal nonconforming status if:
(1) The existing building is a historic resource including, but not
limited to structures listed on the City's Historic Resources Inventory that
have been updated in the last five years, provided the alteration or
addition conforms with the Secretary of the Interior's Standards for
Rehabilitation and Illustrated Guidelines for Rehabilitating Historic
Buildings.
(2) The existing building is commercial or industrial and is altered in
accordance with all of the following criteria:
(A) The alterations only involve the replacement of the footings,
c~ple walls stem walls, or similar structural components between the
structure's footings and the finished floor of the first story as.defined in
Chapter 8.12 of the Santa Monica Municipal Code,
~) The alterations are only undertaken to the minimum extent
necessary to maintain a safe structure
(C) The existing exterior wall elements or principal support structure
remain in place at all times and provide necessary structural support to the
building upon completion of the alterations.
(D) No new floor area is added.
_7
f 3) The existing building is residential and is altered or added to in
accordance with all of the following criteria:
~A) The alterations or additions to the existing residential building
include the replacement of the footings, cripple walls, stem walls, or
similar structural components between the structure's footings and the
finished floor of the first story as defined in Chapter 8.12 of the Santa
Monica Municipal Code.
(B)The existing first story exterior wall elements remain in place at
all times and provide necessary structural support to the building upon
completion of the alteration or addition.
SECTION 3. Santa Monica Municipal Code Section 9.04.02.34.030 is hereby amended
to read as follows:
9.04.20.34.030. Applicability.
Zoning Administrator may grant an adjustment from the
requirements of this Chapter to:
(a) Allow modification of parcel coverage regulations by up to five
percent of the total lot area for additions to existing structures;
(b) Allow modification of the number of required parking spaces by
up to one percent of the number of required spaces;
(c) Allow the modification of fence heights by up to one foot;
(d) Allow the modification of side yard setback requirements by up
to six inches, but in no case resulting in a setback of less than four feet;
8
(e) Allow the modification of building heights by up to six inches on
parcels which have a grade differential of five feet or more, as measured
from either any point on the front parcel line to any point on the rear parcel
line, orfrom any. point on a side parcel line to any point on the opposing
side parcel line;
(f) Allow a garage accessory building to extend up to the rear
property line of the parcel on which it is located where otherwise
prohibited;
(g) Allow a building to retain nonconforming setbacks when
substantially remodeled provided all of the following criteria are met:
(1) The nonconformity of the setback(s) and building may not
be increased,
(2) At least thirty-five percent of the exterior walls of the
building subject to the adjustment shall remain as defined in Section
9.04.02.030,
(3) There has been no prior addition under this Section.
__(h) Allow a building to retain nonconformina setbacks wheh
substantially remodeled provided that the applicant demonstrates that all
of the following criteria are met:
(1) the exterior walls are required to be replaced due to concealed
structural damage caused by dry rot, termites. or other factors.
9
(2) the structural damage was unforeseeable through reasonable
due diligence prior to the issuance of a building permit for the alteration or
addition,
(3) the structural damage was only discovered during the course of
construction,
(4) the structural damage was verified after inspection by the
Building Officer, or designee, while the damaged exterior walls are still in
place, and
The criteria established by this subsection (h) shall be in lieu of the
findings otherwise required by Section 9.04.20.34.060.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with; the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordirance:'
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
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SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be .published once in the
official newspaper within 15 days after its adoption.. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
M HA~ ES M TRIE
City Attor e
11
ATTACHMENT B
INTERIM ORDINANCE NO. 2202 (CCS)
11
f:\atty\muni\lawslbarrylsubstantial remodel interim ordinance extend 7-25-06
City Council Meeting 7-25-06 Santa Monica, California
ORDINANCE NUMBER 2202 (CCS)
(City Council Series)
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA EXTENDING THE INTERIM ORDINANCES MODIFYING THE
THRESHOLD AT WHICH A STRUCTURE IS DETERMINED TO BE SUBSTANTIALLY
REMODELED AND THEREBY SUBJECT TO ALL CURRENT APPLICABLE ZONING
CODE REGULATIONS, ESTABLISHING EXCEPTIONS TO THE SUBSTANTIAL
REMODEL REQUIREMENTS, AND AUTHORIZING ZONING ADMINISTRATOR
ADJUSTMENTS IN SPECIFIED CIRCUMSTANCES
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Findings and Purpose. The Council finds and declares:
(a) A legal, non-conforming building has been substantially remodeled. when it
has been added to or altered to such a degree that the entire building must conform to
all current applicable zoning regulations.
(b) The substantial remodel provisions in the City's Zoning Ordinance are
intended to balance the City's goal for the orderly termination of nonconforming
buildings in order to promote the public health, safety and general welfare with the City's
desire to allow the modest alteration or expansion of nonconforming structures.
1
(c) The substantial remodel provisions contained in the City's Zoning Ordinance
are difficult to interpret and implement.
(d) Even when properly implemented, these provisions can lead to unintended
results. The City has recently approved commercial projects that have permitted the
owner to essentially reconstruct entire nonconforming buildings without complying with
new development standards because the projects had not been substantially remodeled
under current law.
(e) In many cases, these commercial buildings lacked sufficient on-site parking.
The lack of adequate on-site parking has a significant impact on area businesses and
residents.
(f) Historic structures contribute individually and collectively to the City's historic,
aesthetic and cultural heritage.
(g) The need to repair or replace cripple walls, footings, and foundations of
landmarked structures may be appropriate to ensure a safe building, but may be
hindered by the substantial remodel provision which would require that the entire
property be brought into compliance with current Zoning Code.
(h) Homeowners of potentially significant resources are increasingly choosing to
demolish these resources rather than simply remodel them due to difficulties they
encounter in complying with the substantial remodel provisions.
(i) The current substantial remodel provisions may also make it difficult for
homeowners of nonconforming structures generally to reasonably improve the safety
and functionality of their home.
2
(j) Due to these circumstances, homeowners may elect not to make the safety
upgrades or chose to demolish existing improvements and rebuild rather than maintain
the existing structure.
(k) Given the circumstances described above, the Zoning Ordinance requires
review and revision as it pertains to the substantial remodel provisions.
(I) Pending the study and possible amendment of the Zoning Ordinance, it is
necessary, on an interim basis, to modify the threshold at which a structure is
determined to be substantially remodeled, establish exceptions to the substantial
remodel requirements, and authorize the Zoning Administrator to grant adjustments in
specified circumstances.
(m) In light of these concerns, the City Council adopted Ordinance Number 2136
(CCS) on August 10, 2004 and Ordinance Number 2143 (CCS) on September 28, 2004
which modified the threshold at which a structure is determined to be substantially
remodeled, established exceptions to the substantial remodel requirements, and
authorized the Zoning Administrator to grant adjustments in specified circumstances.
However, this extension ordinance will expire on October 28, 2006 unless extended.
Adoption of the proposed extension ordinance will provide staff with adequate time to
amend the City's Zoning Ordinance on a permanent basis.
(n} As described above, there exists a current and immediate threat to the public
safety, health, and welfare should this interim ordinance not be adopted pending the
City's adoption of permanent revisions to the City's Zoning Ordinance.
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(h) Consequently, the City Council finds and declares that the public health,
safety and general welfare requires adoption of this interim ordinance to extend the
provisions of Ordinance Number 2136 (CCS) and Ordinance Number 2143 (CCS) up to
and including January 24, 2009, which modifies the threshold at which a structure is
determined to be substantially remodeled and thereby subject to all current applicable
Zoning Code regulations, establishes exceptions to the substantial remodel
requirements, and authorizes the City's Zoning Administrator to grant adjustments in
specified circumstances.
SECTION 2. For purposes of this Ordinance, the following words and phrases
shall have the following meaning:
Substantial Remodel. The alteration of or addition to an existing legal
nonconforming building to such a degree that the entire building must conform to all
current, applicable zoning regulations including, but not limited to, land use approvals,
setbacks, height, and parking. Structures substantially remodeled shall also be
considered demolished and subject to Part 9.04.10.16 of Subchapter 9.04.10 of the
Zoning Ordinance.
SECTION 3. An alteration of or addition to an existing legal nonconforming
building shall constitute a substantial remodel if any of the following occurs at any time
over a five year period:
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(a) More than fifty percent of the exterior walls are removed or are no longer a
necessary and integral structural component of the overall building. Elements of the
exterior wall include columns, .studs, cripple walls, or similar vertical load-bearing
elements and associated footings. However, existing exterior walls supporting a roof
that is being modified to accommodate a new floor level or roofline shall continue to be
considered necessary and integral structural components, provided the existing wall
elements remain in place and provide necessary structural support to the building upon
completion of the roofline modifications.
The calculation for determining whether a structure is substantially remodeled
shall be based on a horizontal. measurement. of the perimeter exterior wall removed
between the structure's footings and the ceiling of the first story, as defined in Chapter
8.12 of the Santa Monica Municipal Code.
(b) In commercial or industrial buildings not principally supported by exterior
bearing walls, more than fifty percent of the principal .support structure including
columns, structural frames and other similar primary structural elements, is removed or
no longer a necessary and integral structural component of the overall building.
(c) New floor area is added to a commercial or industrial building that exceeds
fifty percent of the existing floor area of the building.
SECTION 4. An existing nonconforming building that constitutes a substantial
remodel pursuant to Section 3 of this Ordinance shall lose any legal, non-conforming
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status which it may have had and may only be replaced or rebuilt if the entire structure
is made to comply with all current, applicable Zoning Code requirements unless:
(a) The existing building is a historic resource including, but not limited to,
structures listed on the City's Historic Resources Inventory that have been updated in
the last five years, provided the alteration or addition conforms with the Secretary of the
Interior's Standards for Rehabilitation and Illustrated Guidelines for Rehabilitating
Historic Buildings.
(b) The existing building is commercial or industrial and is altered in accordance
with all of the following criteria:
(1) The alterations only involve the replacement of the footings, cripple walls,.
stem walls, or similar structural components between the structure's footings and the
finished floor of the first story as defined in Chapter 8:12 of the Santa Monica Municipal
Code
(2) The alterations are only undertaken to the minimum extent necessary to
maintain a safe structure
(3) The existing exterior wall elements or principal support structure remain in
place at all times and provide necessary structural support to the. building upon
completion of the alterations.
(4) No new floor area is added.
(c) The existing building is residential and is altered or added to in accordance
with all of the following criteria:
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{1) The alterations or additions to the existing residential building include the
replacement of the footings, cripple walls, stem walls, or similar structural components
between the structure's footings and the finished floor of the first story as defined in
Chapter 8.12 of the Santa Monica Municipal Code.
(2) The existing first story exterior wall elements remain in place at all times and
provide necessary structural support to the building upon completion of the alteration or
addition.
SECTION 5. In addition to the adjustment authority for substantial remodels
established pursuant to Santa Monica Municipal Code Section 9.04.20.34030(8), the
Zoning Administrator may grant an adjustment from the requirements of subsection (c)
of Section 3 of this Ordinance in accordance with the procedure set forth in Santa
Monica Municipal Code Part 9.04.20.34..
SECTION 6. The Zoning Administrator may also grant an adjustment in
accordance with the procedures set forth in Santa Monica Municipal Code Part
9.04.20.34 to allow a building to retain nonconforming setbacks when substantially
remodeled provided all of the following criteria are met: (a) the exterior walls are
required to be replaced due to structural damage caused by dry rot or termite damage,
(b) the structural damage was unforeseeable through reasonable due diligence prior to
the issuance of a building permit for the alteration or addition, {c) the structural damage
was only discovered during the course of construction, (d) the structural damage was
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verified after inspection by the Building Officer, or designee, while the damaged exterior
walls are still in place, and (e) the building is located on a substandard lot.
SECTION 7. This Ordinance does not alter the nonconforming building and use
provisions contained in Subchapter 9.04.18 df the Zoning Ordinance.
SECTION 8. This Ordinance shall be of no further force or effect after January
24, 2009.
SECTION 9. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the. provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 10. If any section, subsection, sentence, .clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
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SECTION 11. The Mayor shall sign and the City Clerk shall attest to the
passage of this Ordinance. The City Clerk shall cause the same to be published once
in the official newspaper within 15 days after its adoption. This Ordinance shall
become effective 30 days from its adoption.
APPROVED AS TO FORM:
~~
MA HA J S MOUTRIE
City Attorney
9
Approved and adopted this 25th day of July, 2006.
Robert T~'Ho brook, Mayor
State of California )
County of Los Angeles) ss.
City of Santa Monica )
I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2202 (CCS) had its introduction on July 11, 2006, and was
adopted at the Santa Monica City Council meeting held on July 25, 2D06, by the
following vote:
Ayes: Council members: Bloom, Katz, McKeown, O'Connor,
Mayor Pro Tem Shriver, Mayor Holbrook
Noes: Council members: None
Abstain: Couhcil members: None
Absent: Council members: Denser
ATTEST:
._._- - 1 .----~ _~~
Maria M. StewStewart, City Clerk
ATTACHMENT C
PLANNING COMMISSION STAFF REPORT
12
~®
Planning Commission Report
City of
Santa Monica
Planning Commission Meeting: October 15, 2008
'_,' ~ ~~'
Agenda Item: 9_B
To: Planning Commission
From: Eileen Fogarty, Director, Planning & Community Development Department
Subject: Recommendation to amend SMMC Section 9.04.02.030.825, Sub-Chapter
9.04.18, and Part 9.04.20.34 (Zoning Ordinance), modifying the threshold
at which a structure is determined to be substantially remodeled and
establishing procedures for exceptions and adjustments in specified
circumstances.
Address:
Applicant:
Recommended Action
Citywide
City of Santa Monica
It is recommended that the Planning Commission recommend to the City Council
adoption of the proposed Zoning Text Amendment, which incorporates the interim
ordinance provisions with two changes to the Adjustment criteria.
Executive Summary
The City has a significant number of buildings that were legally constructed, but do not
comply with newer zoning regulations. The Zoning Ordinance allows these "legal
nonconforming" buildings to be maintained, remodeled and even enlarged provided the
work does not exceed the threshold- at which point it becomes a "substantial remodel." A
substantial remodeled structure requires compliance with current Code requirements.
The subject interim substantial remodel regulations were adopted because the City
experienced problems enforcing the adopted Code. In addition to improving the
definition of a "substantial remodel," the proposed amendment outlines three
exceptional circumstances in which a project would not be required to conform to
current Code requirements even if substantially remodeled. These involve both
residential and non-residential structures and buildings on the City's Historic Resources
Inventory (HRI).
The interim .requirements have worked well and this report recommends making
permanent the definition of a substantial remodel contained in Interim Ordinance 2202
(CCS), which will expire in January 2009 and may not be extended. However, staff
proposes the following changes: 1) To remove the adjustment provision that allows
substantially remodeled commercial or industrial buildings to be enlarged beyond 50%
without meeting Code requirements; and 2) To also allow properties that are not
substandard to request an adjustment for residential projects that exceed 50% of wall
removal due to discovery of dry rot and/or termite damage during construction, resulting
in a change to the approved plans.
Background
In 2004, PCD staff brought forward a proposal to amend zoning regulations-pertaining
to substantial remodels in order to clarify the intention. of the definition and related
procedures. At the time, there were numerous instances that demonstrated that the
adopted Code provisions were prone to differing interpretations during -plan check and
hard to enforce in the field, resulting in some cases in unintended consequences. The
City experienced several cases where projects were allowed to essentially reconstruct
entire non-conforming buildings without complying with new development standards and
without addressing the lack of on-site parking because the projects had not been
considered substantially remodeled. On the other hand, staff observed that
homeowners of potentially significant historic resources were choosing to demolish
rather than appropriately remodel these resources as the substantial remodel provisions
in the Zoning Code made remodeling economically infeasible. Additionally, situations
arose in which unforeseeable damage was uncovered during construction that required
removal of existing building components such that the project became a substantial
remodel. In such cases, the previously approved setbacks, parking and other standards
must be reexamined and work must be stopped while new plans are approved.
To address the identified issues, the City Council adopted Interim Ordinance Number
2136. (CCS) on August 10, 2004, which clarified the definition of "substantial remodel"
and the requirement to bring a property up to Code requirements if a project on that
property is deemed to be a substantial remodel. The Interim Ordinance includes
exceptions for properties with historic resources, including those listed on the City's
HRI: There are also exceptions for dommercial property owners that seek to upgrade
their properties for structural safety without adding floor area, within specific limitations,
and for residential properties, provided that exterior wall elements remain in place at all
times during construction.
The ordinance also included two adjustment opportunities to allow exceptions for
commercial and industrial structures exceeding 50% additional floor area, and for
situations in which deteriorated support structures are discovered after construction or
demolition is initiated. In such cases, a substantial remodel may not require compliance
with certain Code requirements if the Zoning Administrator approves an adjustment on a
case-by-case basis.
The City Council extended the ordinance through the adoption of Ordinance Number
2143 (CCS) on November 8, 2004, and through the adoption of Ordinance Number
2202 (CCS) on October 28, 2006. This interim ordinance will expire on January 24,
2009 and may not be extended past this date.
The Planning Commission adopted a Resolution of Intention to initiate this Zoning
Ordinance amendment on September 3, 2008.
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Discussion
It is difficult to quantify the use of these interim provisions since the first interim
ordinance was introduced, as its implementation cannot be measured by reviewing
specific permit activity. According to City Planning staff, the clarifications in this
ordinance have helped staff, particularly at the Planning counter, to explain the
substantial remodel requirements more clearly to applicants and to review plans to
determine whether the project is a substantial remodel. Building & Safety inspectors
have also found that the new language has helped them with their enforcement in the
field. It also appears that some of the problems associated with the prior language have
been eliminated based on the interim ordinance.
Adjustments for Unexoected Structural Damage
At the time of approval of the initial interim ordinance, the Council's held extensive
deliberations on the topic of whether to allow an adjustment ih situations in which
additional structural damage is discovered during. construction such that more than 50%
of the walls must be removed, rendering the project a substantial remodel. There was
concern on the one hand that such situationsresult insignificant financial hardship for a
homeowner that would then be required to completely redesign a project in order to
meet all Code requirements. On the other hand, Council members were concerned
about those that would use the adjustment process to deliberately "discover" dry rot and
termite damage after beginning construction, and theri use this new "loophole" to rebuild
non-conforming walls on a "mansion." As a compromise, the Council introduced an
adjustment opportunity for such situations only for sub-standard .sized lots, for which
these situations represented a clear hardship.
Although this adjustment process was proposed to address homeowner hardships due
to unexpected structural damage found during construction, in the past four years, there
have been no applications for adjustments under this ordinance. Thus there is no test
case to show how this process might have been helpful. According to Planning counter
staff, -since the interim ordinance was adopted, 3-4 cases have come up each year in
which a project was stopped during construction as exterior wall removal began to
exceed 50%. However, in each case, the property was not sub-standard and therefore
the homeowner was not entitled to apply for an adjustment.. In each case, the
contractor worked with Building & Safety staff to resolve the situation through structural
solutions that maintained more of the original material so as to avoid a determination of
substantial remodel. None of the cases in which this situation arose was actually
resolved by redesigning and moving the building into comply with current setbacks.
Staff proposes to maintain this adjustment process but to remove the restriction to sub-
standard lots, and to add language requiring the applicant to demonstrate that the
additional structural damage was not identified earlier and was discovered during the
course of construction. In such cases, other typical adjustment findings would be
replaced with the criteria allowing the adjustment to be requested. By making this
adjustment a real opportunity for homeowners, the Code would promote the
improvement of residential structures with more optimal building solutions and, based
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on past experience, would have little or no effect on the ultimate footprint and thus no
impact on neighboring structures.
Adjustments for Commercial and Industrial Buildinas
The Interim Ordinance included an adjustment allowing the Zoning Administrator to
waive .requirements that result from a determination of substantial remodel for
commercial or industrial buildings that exceed 50% addition over a five year period.
Initially, this adjustment was proposed to address concerns that the proposed ordinance
might have unanticipated consequences and that such an outset may be needed.
However, there have been no applications for this adjustment, and staff is concerned
about the broad spectrum offered in this language. As stated, the interim ordinance
could allow incremental commercial or industrial expansion without providing beneficial
Code requirements, such as parking or other traffic reduction requirements or other
design and landscaping features. Therefore, the proposed Text Amendment does not
include this provision.
Historic Structures
In reviewing the impact of the interim ordinance on the Landmarks program, staff has
found that it has had a positive impact, providing the flexibility and framework needed
for Landmark and historic property owners to make modifications while meeting the
Secretary of Interior's Standards for the Rehabilitation of Historic Properties. It was
concluded that if the baseline definition of what constitutes a "substantial remodel" were
to change significantly from that contained in the interim ordinance, it would negatively
impact the ability of several Landmark property owners to propose some of the projects
currently in schematic design.
Foundation systems on many older buildings do not meet newer seismic safety
standards. The flexibility provided in the interim ordinance has allowed a number of
property owners to complete important structural upgrades to their homes.
Based on input from Planning and Building staff, it is evident that the interim ordinance
provisions pertaining to historic resources have been effective and should be made
permanent.
Attachment A contains staff's proposal for inserting the interim provisions into the
structure of the Zoning Ordinance in SMMC Section 9.04.02.030.825, Sub-Chapter
9.04.18, and Part 9.04.20.34.
Environmental Analysis
The proposed ordinance is exempt from the provisions of the California Environmental
Quality Act (CEQA) pursuant to Section 15061(b)(3) in that it can been seen with
certainty thaf the proposed ordinance does not have the potential to significantly impact
the environment, since the proposed ordinance amendment merely clarifies adopted
zoning regulations. There are no reasonably foreseeable impacts such as a direct or
4
indirect physical change in the environment that would result from the adoption of the
proposed ordinance.
Consistency with the General Plan
In order to recommend the proposed text amendment to the City Council, the Planning
Commission must find that the amendment is consistent with the City's General Plan
and that it promotes public health, safety and general welfare..
The proposed amendment is consistent in principle with several of the goals, objectives
and policies of the General Plan; including:
• The General Plan Safety Element (1995) Policy 1.2 states that: The City shall
strengthen the project permit and review process to ensure that proper actions
are taken to mitigate the impact of seismic hazards, to encourage structural and
non-structural seismic design and construction practices that minimize
earthquake damage in critical facilities and to prevent the total collapse of any
structure designed for human occupancy.
A clear definition of substantial remodel helps the City to enforce the Building
Code provisions that ensure safe construction of new and remodeled buildings.
By providing exceptions whereby Zoning Code provisions may be waived in
order to allow a property owner to complete structural improvements, this text
amendment will encourage owners of existing older buildings in all parts of the
city to improve their structural safety.
• The General Plan Historic Preservation Element (2002) Policy 1.3.2 states:
Ensure that municipal regulations are compatible with preservation.
• The General Plan Land Use Element (1984) Policy 3.1.3 states: Encourage
retention of historic and architecturally significant resources."
The requirement. to make a property comply with all Zoning regulations if work
done to that property constitutes a substantial remodel may potentially result in
the loss of a historic property's character defining features. The exception for
historic properties that are undergoing .rehabilitation consistent with the
Secretary of Interior's Standards in the proposed ordinance gives priority to
historic character over property development standards and is consistent with
the LUE and HPE's policies to retain historic resources and to make .the
Municipal Code compatible with preservation objectives.
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Alternative Actions:
In addition to the recommended. action, the Planning Commission could consider the
following with respect to the project:
A1. Revise and recommend adoption to City Council
A2. Recommend that the City Council not adopt the subject ordinance.
Conclusion
The proposed text amendment is needed to continue the effective processing of
applications for projects involving the remodeling or expansion of existing structures.
The interim ordinance provisions have resolved disputes over interpretation and provide
some necessary flexibility for particular situations. As these provisions have worked
well,. staff is recommending that the provisions, as altered with respect to adjustments,
be made permanent.
Prepared by: Elizabeth Bar-EI, AICP, Senior Planner
Attachments
A. Proposed Text for Amendment
B. Ordinance Number 2201 (CCS)
C. Notice of Public Hearing
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