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SR-08-08-1978-11ACA:RLK:AK:ses ,-31-78 Council Meeting: 8-8-78 Santa Monica, California July 28, 1978 auc a ~s~s T0: Mayor and City Council FROM: City Attorney SUBJECT: Council Determination Regarding Hearings on Appeals in Connection with Condominium Projects. Introduction This report transmits an analysis and recommendations regarding apppeals filed requesting a hearing before the City Council. concerning action on nine subdivisions for condominiums purposes. The Council must decide in each case whether there are substantial issues involved warranting review of Planning Commission action. Background and Analysis The State Subdivision Map Act and local ordinance provide that "any interested person adversely affected" may file a complaint requesting the City Council to grant a hear- ing and reconsider Planning Commission determination on a proposed subdivision for condominium purposes. Nine such complaints have been filed regarding Planning Commission actions in D4ay 1978. Upon receipt of a complaint, it is within the discretion of the City Council to either grant + or deny the request for a further hearing. AUG 8 187 CA:RLR:AK:ses 7-31-78 Complaints on eight projects have been the subject of recent litigation between the City and the Santa Monica Committee for Fair Rents. The litigation clarified the scope of the. term "any interested party adversely affected," ad- dressed conflicts between local and state codes and determined that a hearing before the City Council on such complaints is not mandatory, but may be granted at the discretion of the Council. The Court has ordered the Council to exercise its discretion at this time. The complaints before the Council were filed by tenants of two projects and the Santa Monica Committee for Fair Rents. Briefly, the complaint of the Committee and one tenant alleges that, because of the current rate of condominium conversion activity in the City, these proposed developments have a detrimental impact on the rental market and welfare of the community and thus fail to conform to the housing element of the General Plan. With regard to Tentative Tract 35206, the tenants appealing states that there is a serious shortage of apartments available which accept children and removal of such units is in effect an eviction from the City. Apart from conformity with the Housing Element (a question addressed in the attached analysis), the complaints do not challenge the technical compliance of the projects or Planning Commission action with the subdivision process. -2- CA:RLK:AK:ses ~-31-78 A copy of the complaints _aad a-precise. listing of the proposed condominium developments involved in these appeals is enclosed in the supporting documentation. Suggested criteria for the exercise of Council discretion are set forth in the attached apper..dix and their application to these cases are dis- cussed. ir: the attached analysis. Before taking action, the Council should carefully review the Facts of each case, the complaints, the suggested criteria and attached analysis. (See page 6 of Appendix Two). Alternatives Should the Council decide to hear any of the appeals, it may choose to conduct one hearing on all appeals instead of individual hearings on each project. Such a procedure might be particularly appropriate where common issues are raised. With regard to the suggested criteria, the Council may adopt those proposed or substitute those of its own choosing. ommendat i on s Based upon careful review of each case and the suggested criteria, it is recommended that the City Council do the following: -3- CA:RLK:AK:ses 7-31-78 tl) Adopt .by motion the suggested criteria for granting hearings on complaints filed by interested persons adversely affected; and (2) Exercise its discretion regarding the nine com- plaints presently filed by determining whether to conduct hearings and review Planning Commission actions in each case. In light of delays caused by litigation regarding these complaints and consistent with the philisophy of the Map Act, it is further recommended that any. hearings granted be scheduled for the next Council meeting. Prepared by: RICFIARD L. KNICKERBOCKER, City Attorney ANNE M. KIRLIN, Deputy City Attorney -4- APPENDIX ONE COb7PLAINTS,EILED ON PLANNING COMMISSION ACTIOTd REGARDING PROPOSED CONDOTdINIUM DEVELOPMENTS Suggested Guidelines for the Exercise of City Council Discretion Under Section 66452.5(d ) of the Subdivision Map Act The following criteria are suggested for City. Council consideration in reviewing all complaints filed by "any interested party adversely affected" which request a Council hearing and review of a tentative tract map and development proposal for a condominium development. The criteria should be utilized in conjunction with Council review of the administra- tive record and their relevance and weight will vary with the particular concerns raised in the complaint and the nature of the project. Some overlap in concepts is also acknowledged. The suggested criteria are as follows: 1. May the Commission action have been erroneous under the relevant statutes, and was such error prejudicial or harmless: 2. Do the complaint and record suggest the findings and decisions of the Planning Commission may not be supported by substantial evidence? 3. Is there evidence of possible procedural error in the prior proceedings, and was said error prejudicial or harmless? 4. Did complainants have a reasonable opportunity to be heard by the Planning Commission; did they exercise that opportunity? 5. Does the complaint raise significant new issues or evidence which could not have been raised below and the project thus merits reconsideration? 6. Do the allegations of the complaint fall within the scope of technical responsibilities delegated to the Planning Commission or do they raise policy or equitable issues more properly addressed by the Council? 7. Are there other remedies available to complainant, and, if so, are they more appropriate? 8. If complainant is a tenant of a unit to be demol- fished or converted, can the tenant make a reasonable showing of actual or probable ultimate displacement and special hardship? 9. Are there other considerations unique to the case? -2- CA:RLK:AK:ses 7-31-78 APPENDIX TWO ANALYSIS OF:'STATUTES; FACTUAL BACKGROUND AND CRITERIA FOR COUNCIL DETERMINATION ON REQUESTS FOR HEARING IN NINE PROPOSED CONDOMINIUM PROJECTS BEFOF,E THE CITY COUNCIL - AUGUST 8,.1978. The complaints before the City Council on August 8, 1978, involve the following condominium development projects: Filed by: Maria La Place (tenant) and Santa Monica Committee for Fair Rents Tentative Tract No. 35120, New Six-Unit Condominium, 948 Nineteenth Street, Emery Wong Filed by: Santa Monica Committee £or Fair Rents Tentative Tract No. 35118, 12-Unit Condominium conversion, 1217 Twentieth Street, Clifford Douglas Tentative Tract No. 35121, 38-Unit Condominium Conversion, 222 Seventh Street, 222 Seventh Street Partnership (Douglas, Emmett & Co.) Tentative Tract No, 35122, 28-Unit Condominium Conversion, 404 San Vicente Boulevard, Astre Investments Tentative Tract No. 35123, 16-Unit Condominium Conversion, 219 Montana Avenue, Montana Properties, Ltd, Tentative Tract No. 35124, 16-Unit Condominium Conversion 914 Fourth Street, Nine Fourteen, Ltd, Tentative Tract No. 35125,. 24-Unit Condominium Conversion, 415 Montana Avenue, Winebright and Lyon Tentative Tract No, 35147, 20-Unit Condominium Conversion, 1012 Seventh Street, Stacey and Takemoto Filed by: Joanne Levey (tenant) Tentative Tract No, 35206, 23-Unit Condominium Conversion, 1114 Twelfth Street, John Venekus *Note: Tentative Tract No. 35120, a new six-unit development, was approved by operation o£ law when the Commission failed to secure the necessary four votes to either affirmatively approve or deny the application. _1- CA:RLK:AK:ses ~-31-78 Background and Analysis I. Governing Statutes. The primary statute governing the issue at hand is the State Subdivision Map Act, which pre-empts any local or- dinance inconsistent therewith. The Map Act grants a clear right to appeal Planning Commission action on a subdivision to the subdivider. The Map Act further states that, where provided by a supplementary local ordinance, "any interested person adversely affected" may file a "complaint" with the Council concerning Commission action. The Council "may," in its discretion agree to set a hearing on such a complaint and review the decision of the Commission. Sections 9123 and 9148C of the S.M.M.C grant a right to seek Council review to "any person aggrieved" or any Council'Member, a broader standard for appeal than that in the Map Act. To the extent of any inconsistencies, however, the Map Act pre-empts these provisions of the local code. II. Factual Setting. The'curreht appeals arise in the context of ,the recent rent control initiative and litigation by the Santa Monica Committee for Fair Rents against the City. As the prime sponsor of the rent control initiative, the Committee claims to represent the general interests of tenants in the City, including a concern for the impact of condominium development on the rental market. All appeals at issue relate to tentative tract maps approved by the Planning Commission immediately prior to the -2- CA:RLK:AK:ses 7-31-78 June election on rent control. In anticipation of possible rent controls, the rate of condominium development and related loss of rental units have greatly accelerated. The nine condominium projects involve the eventual removal of 179 rental units from the housing market. This represents 1/2 of to of the estimated rental-housing stock in the City. With the exception of the 4 units already removed to make way. for the new six unit project on 19th Street, it is estimated that conversion and displacement would commence in approximately one year and continue over a period of 2 years. This is based on approximately one year to obtain all the neces- sary permits, provide the required four months of ntoice, complete all repairs and renovations, and in some cases, place them for sale in phased segments. At the public hearings before the Planning Commission on the developments at issue, the Committee for Fair Rents and other citizens alleged that the current rate of condominium ac- tivity was having a detrimental effect on the health of the rental market and welfare of the community. The Committee further alleged that said developments were therefore not in conformance with the City's Housing Element for the reasons enunciated. above and the Commission must disapprove the projects under the terms of the State Map Act. When the tentative tract maps for said developments were approved by the Planning Commission, "complaints" or "appeals" were filed by the Committee and certain displaced tenants. While Csty staff accepted the appeals from displaced -3- CA 7-28-78 tenants for processing, the requests from the Committee were rejected on the grounds that it was not an "interested party adversely affected" under the Map Act appeals provisions and relevant case law. III. Results of Recent Litigation. When denied the right to file a complaint with the City Council on the grounds cited above, the Santa Monica Committee for Fair Rents petitioned the Los Angeles Superior Court for a writ of mandate directing the City Council to set hearings and review Commission action on eight subdivisions. On June 26, 1978, Judge George Dell ruled as follows: A. The Committee does appear to be an interested party adversely affected," and may file a "complaint"; B. It is nevertheless within the discretion of the Council to grant or deny the requests for a hearing. To the degree of any inconsistencies, the Map Act pre-empts the municipal code appeals provisions. Accordingly, the Judge stated it was not within his power to direct the City to set a hearing on the Committee's request; rather, the Court issued a writ of mandate ordering the City Council to exercise its discretion one way or the other in the matter. To date, the question had only been addressed by City staff and had been complicated by uncertainty -4- CA 6-28-78 as to the various legal issues raised in the litigation. At this time, the City Council is requested to exercise its discretion with regard to the requests for hearings filed by the Committee and by the displaced tenants. This litigation further revealed a need to update and amend the appeals provision of the Municipal Code to bring it into conformace with the Map Act and avoid confusion. Staff will come forth with recommendations on this matter in the near future. IV. Suggested Guidelines for Council Exercise of Discretion. Section 66452.5(d) of the Map Act does not set forth any precise parameters for the exercise of Council discretion in response to a complaint by an "interested party adversely affected." A fair approach designed to,pratect the interests of all affected (the subdivider, tenants, the City and the public) would seem to require consideration based upon clear and reasoned criteria and standards. Recognition must also be given to the integrity and efficiency of the administrative process, the relative expertise and resources of the City Council and Commission on the issues raised and protection of the due process rights of all parties. Accordingly, it is recommended that the Council ;consider the suggested guideline s, for the exercise of its discretion on these and future complaints contained in the appendix to this memorandum. The suggested guidelines -5- CA 7-23-73 are largely derived from other areas of administrative law and appellate procedure, but they have been adapted to the policy and operations of the subdivision process. The Council is asked to first examine the precise issues or allegations set forth in each complaint with regard to the suggested criteria. In some instances, the Council may make a threshhold determination that "even if all concerns or allegations in the complaint are deemed true for purposes of argument," the Council does. not wish to hear the appeal. In other cases, the nature of the issues involved will necessitate an examination of the administrative record with regard to the particular issues raised ahd interests advocated in the complaint. The appeals should be heard if the Council finds that the concerns in the complaint, set against the criteria; administrative record and relevant law, raise- a significant question or possibility (a prima facie case) of impropriety below or policy considerations which ,ought to be addressed at the level of the Council. In operation, the Council must determine the relevance and weight of each of the suggested criteria with. regard to each complaint. filed. The relevance of the special criteria for complaints filed by displaced tenants to the applications by Maria La Place and Joanne Levey is clear. The complaint of the Committee for Fair Rents focuses upon alleged erroneous action by the Planning Commission under the relevant statutes and raises policy issues which it wishes addressed by the Council, -6- CA 7-28-78 [^Tith the exception of conformity of the proposed projects with the Housing Element (an issue addressed and rebutted below), the complaints do not challenge compliance of the projects and Commission action with the technical re- quirements of the subdivision process. The Council decision on these complaints will thus largely be dependant upon: 1. The policy and standards it wishes to establish and apply to all complaints filed by displaced tenants; and 2. Vdith regard to the complaint filed by the Committee for Fair Rents, the Council's desire to consider broad policy issues in the context of appeals of individual develop- ment projects. To do so would provide a prompt response to an allegedly serious and escalating problem and provide an additional forum to the immediate tenants involved. There are disadvantages, however, in: (a) considering and making broad policy changes in the adversary context of an appeal; (b) questions of clarity, consistency and fair notice in effecting policy changes in such a manner; ands (c) a potential detrimental impact on the integrity and efficiency of the administrative process, wherein the Council has chosen to delegate major responsibility for the subdivision process to the Planning Commission,: To hear the appeals on these projects may open the door to a large volume of appeals. by the Committee, other broad interest groups, or any tenant in the City. The availability of alternative remedies for the Committee or Council persons wishing to respond to the - 7- CA 7-28-78 interests advocated thus becomes important, V. Application of Criteria to Complaint and Record. Utilizing the attached standards, the City Council is asked to review the facts set forth in the administrative record and relevant law with regard to the precise issues raised in each complaint. i7hile the Council should review said matters in their entirety, the following synopsis of the record, complaints and statutes is set forth for convenient reference: 1. The issues raised in the complaint by the Committee are the detrimental affect on the rental market of the rate of condominium conversions and availability of low and moderate income housing and that said projects are therefore not in conformance with the local Housing Element and must be disapproved, The interests represented by the Committee are those of tenants generally in the City, not those directly displaced by the projects under consideration; 2. The other complaints were filed by tenants occupying the units to be demolished or converted in the course of developing the condominium projects. One complaint expresses particular concern for the loss of critically needed rental units which accept children. 3. The projects were approved only after full and properly noticed public hearing, review of oral and written reports of staff, and consideration of the relevant factors and issues required by state and local law. The City staff - 8- CA 7-28-78 recommended approval of_ the projects, and the Commission action approving projects was based on a finding of compliance with all state and local laws. 4. A11 complainants had an opportunity to address the Commission on issues raised in their complaints by oral and/or written testimony. ^he Committee and'-Maria La-Place exercised that opportunity, the appellant for Tentative Tract No. 35206 did not. 5. The Map Act does require- that Commission approval be based upon::.a---finding::of coriformanee_~ith`.the General Plan, including the Housing Element. However, with regard to con- versions, the City of Santa Monica is exempted from a need to make such a finding regarding the Housing Element by Govern- ment Code Section 66427.2 (the issue raised by the Committee). 6. With regard to conformity of the one new development with the Housing Element, it is proper to consider the precise wording and scope of the housing objectives cited by the Committee as the basis of its complaint: "Encourage a variety of housing types and prices throughout the city to assure the availability of adequate housing for persons of all ages, races, ethnic groups and incomes." "Increase the availability of low and moderate income housing." Under the terms of these objectives, it would appear to be within the legitimate discretion of a Planning -9- CA 7-28-78 Commissioner to find the developments in conformance with the Element, as its broad language and sometimes diverse objectives arguably do not dictate a particular decision regarding a particular condominium development. 8. The actual impact on the rental market of the current rate of proposed conversion is extremely hard to measure and currently speculative in nature. Accordingly, the Planning Commission has taken a responsible position in addressing the issue in an alternative manner by establishing a subcommittee to report back in August on the scope and parameters of the alleged problem, as a prerequisite to policy development. 9. With regard to the impact on the rental market, the Committee for Fair Rents has an alternative remedy in political action to pursue rent control, amendment of the City's Housing Element to specifically outline policies for conversion, and/or enactment of local ordinances to monitor and control the rate of conversion. Such measures would directly address the issue and give clear notice of new local policies to all concerned, and avoid the cumbersome and expensive attack on condominium projects on a case by case basis: 10. The primary ground expressed for the vote of those Planning Commissioners dissenting and voting to deny these projects is as follows: The current rate of condominium conversion activity on the rental market has a detrimental impact on the rental market and (citing S.M.M.C ~ 9123A~ "sound' community planning, the economic qualities of the community and on cultural, and. aesthetic the general welfare." -10-