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.
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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.
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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:
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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
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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?
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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.
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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
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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
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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
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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
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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,
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[^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
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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
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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
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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."
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