sr-090881-7af
SEP 8 1981
CA:RMM:BB:se
City Council Meeting 9-8-81
Santa Monica, California
STAFF REPORT
TO: - Mayor and City Council
FROM: City Attorney
SUBJECT: Claim for Vested Right from Emergency Building
Moratorium, Claim No. M-038 by Manoucher and Ezatolah
Barcohen for Project at 211 California.
This report has been prepared as a supplement to earlier
staff reports on the proposed development at 211 California and
in response to communication from the claimants and their
authorized representative.
Notwithstanding the legal arguments of claimant and the
factual circumstances surrounding this project it is the position
of the City Attorney that claimants are not entitled to a vested
right to proceed with their project.
The project received its first approval, more than five
years ago. Although all of the necessary governmental approvals
were obtained over the next several years, claimants were not at
any time in possession of a vested right. Costs of land
acquisition, architectural fees for plans and design, and permit
fees are not the type of expenditures considered for a vested
right. Liabilities relating solely to the acquisition of the
property, and the subsequent refinancing of the property to a
total loan amount of $400,000 would also not establish a vested
right.
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SEP 8 9981
The only actual work performed on-site in this case was the
demolition of three rental structures. No construction
commenced, as evidenced by the renewal of the building permit and
the continuing need to this date to renew said permit. The
claimed expenditures in relation to the demolition are not
quantitatively substantial nor substantial in relationship to the
overall project and its costs.
In addition, it should be noted that although demolition
occurred after the issuance of the first building permit, it is
the demolition permit which authoritizes demolition and there is
nothing to indicate that claimants relied on anything other than
the demolition permit in tearing down the structures. That
claimants were not proceeding in reliance on their building
permit is further evidenced by their subsequent lengthy lapse of
that permit and their continued lack of activity following the
later issuance of building permits.
Claimants also point to a loss of income stream from the
demolished structures as an appropriate measure of .reliance.
However, in this case, any loss of income since March 1979 was
solely due to their actions or inactions in proceeding with their
project. Although family and other reasons are cited as
explanation for not actively pursuing the project, it is not
disputed that, following demolition of the structures on the
site, no construction commenced, no construction loans were
entered into, the building permit expired and another permit was
not sought for more than a year, and claimants have since
obtained or sought building permits in order that whenever they
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might obtain construction financing, which has still not been
done, they would be able to commence their project.
A delay in time and subsequent lapse in a building permit
may not take away a vested right already obtained, see Pardee
Construction Company v. California Coastal Commission 95 Cal.
App. 3d 471, 157 Cal. Rptr. 184 (1979) and a delay in time will
not necessarily establish abandonment where the inability to
proceed was due to reasons beyond the developer's control, i.e.,
World War II, and whereupon its conclusion the developer did
proceed within a reasonable length of time, see Transoceanic Oil
Corp. v. City of Santa Barbara, 85 Cal. App. 2d 776, 194 P. 2d
148 {1948). However, in the present case, claimant's efforts and
subsequent lapse in those efforts must be considered in
determining a vested right and mediate against approval of a
vested right. That claimants possess a final tract map for the
project site does not affect this determination. It is
appropriate and proper to deny a vested right, notwithstanding
possession of a final map where, as here, claimants did not
perform substantial work and incur substantial liabilities in
good faith reliance on their building permit. See Avco Community
Developers Inc. v. South Coast Regional Commission, 17 Cal. 3d
785, 553 P. 2d 546, 132 Cal. Rptr. 386 (1976) and cases cited
therein.
It remains, therefore, the recommendation of the City
Attorney that the claim for vested rights in the present case be
denied.
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