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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. 1 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. 2 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. 3 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 4 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. 5 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." 6 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 7 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. 8 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: 9 ATTACHMENT A DRAFT ORDINANCE 10 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 3 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. d c h t~.n}'nl rnm nrlcl 'n„nA me +hn rmm~vni 'n u,hnlo n nrF of n ndninr7 nr .Jmm ~lichnrJ if n+ Inns+fif+., norrch+ of n vtn r'n ~n,o llc hn~ ~..w..~.,....,~ ..,,~ ~ ~ .,~..,. ~.,... .~ r....,... ....... ,..... .... ................. romnrJolor+ nr r7cm nl'r hn,J c+r n4.mn chnll Incn gym, Io n n! nnn nnnfnrminn in rletnrm'n ~e,hn}hnr n nrn'nr} 'c n c..hrtn n+ini romnrlol a ..,n^ /nni c hun h., fns rc nr nthnr c rh nlmm~ntc\ of }ho ,n,nll h~i,n Noon 4 fI h ~`ri.J .J h' h n +he roof metro^ota.° mo`o ~'c r~~i.SVv°-m 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. 5 (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. 6 (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. 10 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. 3 (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: 4 (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 5 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: 6 {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 7 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. 8 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. 2 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 3 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. 5 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 6