sr-102781-6qOCT 2 7 4984
CA:RMM:BB:se
City Council Meeting 10-27-81
Santa Monica, California
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Proposed Findings Concerning Certain Vested
Right Claims Under Building Moratorium
Attached are proposed findings regarding the denials of
claims of vested right/hardship exemption for the following
claims:
1. M-038 by Manouchehr Barcohen and Ezatolah Barcohen for
the properties located at 211 California Avenue.
2. M-066 by Nineteenth Wilshire Developers, a limited
partnership; Charles C. Hou, general partner for the properties
located at 1129 19th Street.
3. M-067 by Sixteenth Grant Developrs, a limited
partnership, Charles C. Hou, general partner for the properties
located at 1525 Grant Street.
4. M-068 by Charles C. Hou for the properties located at
2325 20th Street.
5. M-069 by Dave Bentz for the properties located at 2416
34th Street.
6. M-078 by Joseph P. Argenta, Ronald L. Baker, William
Thon and Jeffrey Matz dba Professional Center Associates located
at 1450 14th Street.
c
~. oc~ a ~ ~sa4
CA:RMM:BL:se
City Council Meeting 10-27-81 Santa Monica, California
CLAIM NO. M-038
211 California Avenue
1. Claimants seek a determination from the City Council of
a vested right or hardship exemption to construct a twenty-one
(21) unit, six story condominium project with two levels of
subsurface parking at 211 California Avenue in Santa Monica.
2. The project site is zoned R-4 and is presently vacant.
3. At the time of acquisition by claimants in February
1976, the property was improved with three residential
structures. These structures were demolished at some time
between February and April 1979.
4. A determination of a vested right depends on whether,
prior to April 22, 1981, a claimant has secured the last
governmental approval necessary for construction and, in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
5. Reliance is properly measured in relation to the final
governmental approval and not merely the final discretionary
approval.
6. Prior to April 22, 1981, claimants obtained the
following governmental approvals:
1
Tentative Tract Map 12-06-76
Coastal Development Permit 04-11-77
Architectural Review Board 08-16-78
Demolition Permit 02-21-79
Building Permit 03-05-79
10-27-80
Final Tract Map 09-11-79
7. Although claimants may have acquired the last
governmental approval prior to April 22, 1981, they do not now
possess the last governmental approval since their October 1980
building permit expired shortly after the adoption of the
moratorium. Claimant did not apply for an extension of the
building permit until after it had expired.
8. Claimants, having not commenced any of the work
authorized by the building permit, recognized that it would
expire and that they would need to seek and obtain yet another
building permit; claimants attempted to seek a new permit just
prior to and after the adoption of the moratorium.
9. The total cost of the proposed development, according to
claimants is $2,500,000, exclusive of costs of acquisition of the
property.
10. Expenditures prior to April 22, 1981 are stated to be
$221,389.33 and are in the following categories:
2
M-038
Property Acquisition and
Related Costs (Finance Charges,
Interest and Property Taxes
Permit, Filing Fees
Plans and Design
Demolition
Attorney's Fees
Engineering
Miscellaneous
$123,723.35
21,258.00
59,314.00
9,282.00
4,103.00
1,250.00
2,460.00
11. Costs of acquisition of the subject property and related
ownership costs, permit and permit related fees, planning and
design costs do not count toward establishing a vested right.
12. None of the expenditures represent any work performed or
expenditures made as a result of and in reliance on the issuance
of the building permit in March 1979 or in October 1980.
13. Although demolition of the structures occurred after the
issuance of the first building permit, the demolition permit and
not the building permit authorize demolition; no evidence
demonstrates that claimants relied on anything other than the
demolition permits to tear down the structures. To the contrary,
after demolition, claimants allowed that building permit to lapse
for more than a year.
14. The claimed expenditures in relation to the demolition
are, in any event, neither quantitatively substantial nor
substantial in relationship to the overall project and its costs.
3
M-038
15. Liabilities are stated by claimant to total $400,000 and
represent a loan secured by the property.
16. Liabilities relating solely to the acquisition of the
property, and the subsequent refinancings of the property would
not count toward or establish a vested right.
17. Although claimants possessed a building permit in March
1979, they allowed the permit to lapse and were without any
permit for more than thirteen months and virtually ceased efforts
to proceed with the project during that time.
18. Claimants obtained another building permit in October
1980, and after the permit neared its expiration in April 1981,
claimants sought to obtain yet another one, not because they were
ready to commence construction financing.
19. Claimants could not obtain and had not obtained
construction financing during any of the years prior to the
adoption of the moratorium and, to this date, do not appear to be
in any different position with respect to obtaining such
financing.
20. Although personal reasons have been cited as explanation
for the lengthy efforts and lapses in those efforts toward
claimants' developments, those reasons do not influence the
determination that claimants are not entitled to a vested right
to proceed since they do not possess the last necessary
governmental approval and they did not perform substantial work
4
4~I-038
and incur substantial liabilities in good faith reliance on their
building permits.
21. The staff reports submitted to the City Council by the
City Attorney for its hearing of July 28, 1981 and by the City
Attorney and the Hearing Examiner for the hearing on September 8,
1981 on Claim No. M-038 are hereby incorporated and adopted as
though fully set forth herein.
5
M-038
CA:RMM:BL:se
City Council Meeting 10-27-81
Santa Monica, California
CLAIM NO. M-066
1129 19th Street
1. Claimant seeks a determination from the City Council of
a vested right or hardship exemption to construct six (6)
two-story condominium units at 1129 19th Street in Santa Monica.
2. The project site is zoned R-2 and is presently vacant.
3. The property was acquired by claimant in February 1979.
4. A determination of a vested right depends on whether,
prior to April 22, 1981, the claimant has secured the last
governmental approval necessary for construction and, in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
5. Reliance is measured in relation to the last necessary
approval and not merely the last discretionary approval.
6. Prior to April 22, 1981, claimant obtained the
following governmental approvals:
Demolition Permit 03-23-79
Tentative Tract Map 04-07-80
ARB Approval 06-04-80
Building Permit 03-02-81
Final Tract Map 03-24-81
1
M-066
7. Claimant obtained all of the necessary governmental
approvals prior to April 22, 1981.
8. The total cost of development, according to claimant,
is $1,016,050. It is not known whether this total includes the
cost of acquisition of the property and related property costs.
9. Expenditures prior to April 22, 1981 are stated to be
$34,725.59 and relate primarily to property taxes, permit and
permit related fees, architectural design, blueprints,
engineering costs, dump fees and tree moving.
10. None of the expenditures listed by claimant appear to
be in reliance on the last governmental approval, i.e., the final
tract map.
11. Even assuming the building permit were regarded as the
last governmental approval, it appears that the only expenditure
arguably made in reliance on said permit is the cost of tree
moving for $1575.
12. No evidence is provided to demonstrate that that
expenditure was incurred only after and in reliance on the
issuance of the building permit. Even if such expenditure were
in reliance on the building permit, it is neither the type nor of
the magnitude which would establish a vested right.
13, Costs of acquisition of the subject property and
related ownership costs, permit and permit related fees, planning
and design costs do not count toward establishing a vested right.
2
M-066
14. Liabilities prior to April 22, 1981 are stated to total
$5,523.32, but their nature and the time at which they were
incurred are unknown and would in any event not establish a
vested right.
15. Although claimant obtained the last necessary
governmental approval prior to April 22, 1981, no actual
construction had commenced and no substantial liabilities and
expenditures were incurred in reliance on the last governmental
approval. Accordingly, claimant does not have a vested right to
proceed with the proposed development.
16. The staff report submitted to the City Council for its
hearing of September 15, 1981 on Claim No. M-066 is hereby
incorporated and adopted as though fully set forth herein.
3
r~-oC,6
CA:RMM;BL:se
City Council Meeting 10-27-81 Santa Monica, California
CLAIM N0. M-067
1525 Grant Street
1. Claimant seeks a determination from the City Council of
a vested right of hardship exemption to construct five {5)
two-story condominium units at 1525 Grant Street in Santa Monica.
2. The project is zoned R-2, is presently vacant, and was
acquired by claimant in March 1979.
3. A determination of a vested right depends on whether,
prior to April 22, 1981, the claimant has secured the last
governmental approval necessary for construction and, in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
4. Reliance is measured in relation to the last necessary
approval and not merely the last discretionary approval.
5. Prior to April 22, 1981, claimant obtained the
following governmental approvals;
Tentative Tract Map 06-16-80
Architectural Review Board 07-02-80
Building Permit 03-05-81
6. Claimant did not obtain the last governmental approval
prior to April 22, 1981 in that a final tract map had not yet
been obtained.
1
7. The total cost of development, according to claimant,
is $739,260.00. It is not known whether this total includes the
cost of acquisition of the property and related property costs.
8. Expenditures prior to April 22, 1981 are stated to be
$24,587.45 and relate primarily to property taxes, permit and
permit related fees, architectural design, blueprints,
engineering costs, and miscellaneous items.
9. In that the last governmental approval was not obtained
prior to April 22, 1981, none of the expenditures listed could be
determined to be in reliance thereon,
10. Even assuming the building permit were regarded as the
last governmental approval, it appears that the only expenditures
arguably made in reliance on said permit are the deposit for
relocating city tree ($1000) and a payment to King Fence Co.
($580).
11. No evidence is provided to demonstrate that those
expenditures were incurred only after and in reliance on the
issuance of the building permit. It is likely that the tree
relocation is not related to the building permit, but rather
fulfills a condition of the tentative tract map, the satisfaction
of which is a prerequisite to obtaining a final tract map. Even
if either or both expenditures were made in reliance on the
building permit, neither is of the type or magnitude which would
establish a vested right.
2
M-067
12. Costs of acquisition of the subject property and
related ownership costs, permit and permit related fees, planning
and design costs do not count toward establishing a vested right.
13. Liabilities prior to April 22, 1981 are stated to be
$53,562.54 and represent an assumption of claimant's note for
$48,812.54 and $5000 for liabilities, the nature and occurrence
of which are unknown.
14. The assumption of the note appears to be a liability
relative to the acquisition of the property in March 1979 and as
such would not count towards a vested rights.
15. Since prior to April 22,1981, claimant had not obtained
the last necessary governmental approval, had not commenced
actual construction., and had not incurred substantial liabilities
and expenditures in reliance on the last necessary approval,
claimant does not have a vested right to proceed with the
proposed development.
16. The staff report submitted to the City Council for its
hearing of September 15, 1981 on Claim No. P9-067 is hereby
incorporated and adopted as though fully set forth herein.
3
M-Ob7
CA:RMM:BL:se
City Council t9eeting 10- 27-81
Santa Monica, California
CLAIM NO. M-068
2325 20th Street
1. Claimant seeks a determination from the City Council of
a vested right or hardship exemption to construct five (5)
condominium units at 2325 20th Street in Santa Monica.
2. The project site is zoned R-2, is presently vacant, and
was acquired by claimant in September 1978.
3. A determination of a vested right depends on whether,
prior to April 22, 1981, the claimant has secured the last
governmental approval necessary for construction, and in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
4. Reliance is measured in relation the last necessary
approval and not merely the last discretionary approval.
5. Prior to April 22, 1981, claimant obtained the
following governmental approvals:
Demolition Permit 03-23-79
Tentative Tract Map OS-07-79
ARB Approval 06-06-79
Building Permit 10-16-79
07-01-80
04-21-81
1
6. Claimant did not obtain the last governmental approval
prior to April 22, 1981 in that he did not possess a final tract
map by that date.
7. The total cost of development, according to claimant,
is $774,010.00. It is not known whether this total includes the
cost of acquisition of the property and related property costs.
8. Expenditures prior to April 22, 1981 are stated to be
$26,972.65 and relate primarily to property taxes, permit and
permit related fees, architectural design, blueprints,
engineering costs, and miscellaneous items.
9. In that the last governmental approval, i.e., the final
map, was not obtained prior to April 22, 1981, none of the
expenditures listed could be determined to be in reliance
thereon.
10. Even assuming the building permit were regarded as the
last governmental approval, the point of reliance would be the
permit issued on April 21, 1981, and no expenditures were made in
reliance on the issuance of that permit.
11. Only the building permit issued on April 21, 1981 may
be appropriate to consider in that no work authorized by the
previous building permits was commenced during the time they were
valid {i.e., 180 days) as demonstrated by the need to obtain a
new and third building permit on April 21, 1981
2
PII-068
12. Costs of acquisition of the subject property and
related ownership costs, permit and permit related fees, planning
and design costs do not count toward establishing a vested right.
13. Liabilities are listed at $9,564.53 and are undated and
unexplained and are accordingly not determinative of or
considered for a vested right. The figure is, in any event,
neither quantitatively substantial nor substantial in relation to
the overall cost of the project.
14. Since, prior to April 22, 1981, claimant had not
obtained the last necessary governmental approval, had not
commenced any significant, if any at all, construction, and had
not incurred substantial liabilities and expenditures in reliance
on the last necessary approval, claimant does not have a vested
right to proceed with the proposed development.
15, The staff report submitted to the City Council for its
hearing of September 15, 1981 on Claim No. M-068 is hereby
incorporated and adopted as though fully set forth herein.
3
M-068
CA:RMM:BL:se
City Council Meeting 10-27-81
Santa Monica, California
CLAIM NO. M-069
2416 34th Street
1. Claimant seeks a determination from the City Council of
a vested right or hardship exemption to construct six (6)
condominium units at 2416 34th Street in Santa Monica.
2. The project site is zoned R-2 and is presently vacant.
3. The property was acquired by claimant in January 1980.
4. A determination of a vested right depends on whether,
prior to April 22, 1981, the claimant has secured the last
governmental approval necessary for construction and, in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
5. Prior to April 22,1981, claimant obtained the following
governmental approvals:
Demolition Permit 12-28-79
Tentative Tract Map 04-07-80
Architectural Review Board 12-03-80
Building Permit 03-20-81
Final Tract Map 04-03-81
6. Claimant obtained all of the necessary governmental
approvals prior to April 22, 1981.
1
7. The total cost of development, according to claimant,
is $710,000 which includes the purchase price of the subject
property.
8. Expenditures prior to April 22, 1981, exclusive of the
cost of acquisition, are stated to be $35,455 and related to
demolition costs, plans, permits and related fees, engineering
costs and the cost of a temporary power pole.
9. None of the expenditures listed by claimant were in
reliance on the last governmental approval, i.e., the final tract
map.
10. Even if the building permit were regarded as the last
governmental approval, the only expenditure in reliance on the
issued building permit is $150.00 for a temporary power pole,
11. Permit fees and planning and design fees do not count
toward establishing a vested right. Nor would costs of
acquisition count towards establishing a vested right.
12. Liabilities prior to April 22, 1981 are stated to be
$216,805 and include the costs of acquisition, the expenditures
referred to in finding #8 above, an unspecified loan fee and a
cost stated to be for securing and letting bids.
13. None of the liabilities are in reliance on the last
governmental approval and would not establish a vested right.
2
M-069'
14. Although claimant obtained the last necessary
governmental approval prior to April 22, 1981, no actual
construction has commenced and no substantial liabilities and
expenditures were incurred in reliance on the last governmental
approval. Accordingly, claimant does not have a vested right to
proceed with the proposed development.
15. The staff reports submitted by the City Attorney and
Hearing Examiner to the City Council for its hearings of
September 8, 1981 and September 15, 1981 on Claim No. M-069 are
hereby incorporated and adopted as though fully set forth herein.
3
P4-069
CA:RMM:BL:se
City Council Meeting 10-27-81 Santa Monica, California
CLAIM N0. M-078
1450 14th Street
1. Claimant seeks a determination from the City Council of
a vested right to construct an office building at 1450 14th
Street, consisting of two stories of office space above grade
level parking and subterranean parking.
2. The project site is comprised of three parcels. Two of
the parcels are presently zoned C4A, the third is zoned R3.
3. The Commercial and Industrial Task Force of the City of
Santa Monica had recommended that the area of the proposed
development be rezoned R3 which recommendation was pending at the
time of the decision.
4. The parcels are presently vacant and were acquired by
claimant, in April and August, 1978.
5. A determination of a vested right depends on whether,
prior to April 22, 1981, the claimant has secured the last
governmental approval necessary for construction and, in good
faith reliance thereon, has performed substantial work or
incurred substantial liabilities in furtherance thereof.
b. Prior to April 22, 1981, claimant obtained the
following governmental approvals:
1
ARB Approval 09-06-78
Demolition Permit 02-14-79
Building Permit 04-30-79
12-06-79
7. Claimant did not obtain the last governmental approval
prior to April 22, 1981, since it was required to obtain and had
not obtained a new building permit, its previous one having
expired nearly a year before the adoption of the moratorium
without commencement of construction.
8. Claimant also needed a variance to use the R3 lot for
commercial purposes. A renewal of said variance had been
obtained in January 1981 and expired in June 1981.
9. Despite knowledge that the variance would and, indeed,
had expired claimant waited until more than four months from the
adoption of the moratorium had passed and until one month before
its expiration to file a claim for exemption.
10. The total cost of development, according to claimant,
is $3,000,000, including land acquisition in the amount of
$480,500.
2
m-n~R
11. Expenditures prior to April 22, 1981 are stated to be
$246,944.74 and are in the following categories:
Land loan interest $ 91,162
Property taxes 10,496
Land liability insurance 285
Architectural fees and
architect fees loan payment 122,571
Permit and permit fees related 9,508
Demolition 4,800
Miscellaneous 5,740
12. The work performed prior to April 22, 1981 consisted of
demolition, soil and seismic tests, permit and permit related
fees and building and design plans. No construction commenced
prior to April 22, 1981.
13. In that claimant did not possess the last governmental
approval prior to April 22, 1981, none of the expenditures listed
could be determined to be in reliance thereon.
14. Nearly all of claimant's expenditures concern land
acquisition and related property costs and architectural fees
incurred even prior to the issuance of the now expired building
permits.
15. In any event, costs of acquisition of the subject
property and related ownership costs, permit and permit related
fees, planning and design costs do not count toward establishing
a vested right.
3
ra-o7s
16. Liabilities are listed at $394,500 plus down payment
costs of property acquisition. The liabilities represent payment
owed to the architect for building plans and a $3&5,000 land
loan.
17. Since prior to April 22, 1981, claimant did not possess
the last necessary governmental approval, i.e., a valid building
permit; had not commenced construction; and had not incurred
substantial liabilities and expenditures in reliance on the last
governmental approval, claimant does not have a vested right to
proceed with the proposed development.
18. The staff report submitted to the City Council for its
hearing of September 22, 1981 on Claim No. M-078 is hereby
incorporated and adopted as though fully set forth herein.
4
M-078