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SR 03-26-2019 7A City Council Report City Council Meeting: March 26, 2019 Agenda Item: 7.A 1 of 8 To: Mayor and City Council From: David Martin, Director, City Planning Subject: Introduction and Adoption of an Urgency Interim Zoning Ordinance Regarding Single-Room Occupancy Uses Recommended Action Staff recommends Council introduce and adopt an urgency interim zoning ordinance to prohibit Single-Room Occupancy (SRO) uses citywide on an interim basis in order to prevent the proliferation and over-concentration of SRO uses that are not 100% Affordable Housing Projects or certain specialized housing uses such as emergency shelters, transitional housing, and supportive housing. This urgency interim zoning ordinance would allow for study of revised development standards, land use regulations, use classifications, and additional requirements related to physical design or amenity plans, for SRO uses in order to protect the public health, safety and welfare. Executive Summary Over the years, City staff, decisionmakers, and community members have had numerous discussions regarding housing development in the City and how to create effective housing policies, programs, and regulatory tools to address the need for more development of a variety of types and sizes of housing options. In particular, a need has been identified for development of new affordable housing and supportive housing, and market-rate multi-family projects near transit, in order to offer attractive and feasible opportunities for a range of individuals and families to live in Santa Monica. The Downtown Community Plan was adopted by Council on July 25, 2017. Framed as a “housing first” approach, it envisioned a robust mix of housing types serving a wide range of household sizes and income levels. However, since July 2018, there have been six Tier 1 Administrative Approval applications filed for mixed-use housing projects in the plan area that propose 100% Single-Room Occupancy Housing. All units proposed in the six projects range from 219-373 SF in size; include sleeping, bathroom, and cooking facilities; and provide 5% of the total units deed -restricted for Extremely- 2 of 8 Low Income occupants pursuant to AHPP requirements. As discussed more fully in this report, five of these six market-rate SRO projects supersede previously-approved or pending project applications, including two 100% Affordable Housing Projects, that proposed various mixtures of studio, one-, two-, and three-bedroom units. While these projects are technically compliant with the current code as drafted, the absence of market demand for classic market-rate single room occupancy dwellings has left what amounts to a loophole for a new kind of housing that might be described as market-rate “micro units.” SROs previously served a role in providing relatively affordable housing in urban centers for service workers, low-income singles and the retired. Addressing the regional housing crisis with a proliferation and concentration of these new SRO projects in the Downtown District would not provide the necessary variety of housing types nor encourage a neighborhood setting that promotes soc ial connectedness and community wellbeing. Adoption of this urgency interim zoning ordinance would provide a temporary prohibition on SRO uses unless proposed as 100% Affordable Housing Projects, or certain specialized housing uses such as emergency shelters, transitional housing, and supportive housing, as set forth in Article 9 of the Santa Monica Municipal Code. For the purposes of this staff report, Single- Room Occupancy uses includes SRO Housing and Structures as defined by the Zoning Ordinance and residential units that may, but are not required, to have kitchen or bathroom facilities and are no more than 375 SF in size. This Council action would provide an opportunity for further study and for potential Council adoption of revised development standards, land use regulations, residential use classifications, or definitions, to ensure that appropriate characteristics are required for projects with residential units 375 SF or less in size. Staff may also evaluate whether a mandatory mix of unit type s and/or sizes developed as part of Tier 1 housing projects Citywide is desired, with consideration given to changing regional housing trends, and consistent with housing-related goals and 3 of 8 policies set forth in the 2010 Land Use and Circulation Element (LUCE) and 2017 Downtown Community Plan. With Council adoption, the proposed SRO urgency interim zoning ordinance would be effective immediately, apply to all projects that have not yet been issued a building permit or are identified as exempt, and expire on May 10, 2019. Background Housing Policy and the Need to Develop a Range of Housing Types Through a variety of discussions with community input at the Council, Planning Commission, and Housing Commission, concern has been consistently expressed about projects that exclusively propose small or micro-units in new housing projects, not including projects that are entitled under defined residential use categories such as for Supportive Housing and Transitional Housing. Discussion points have been raised about the need for family housing and the desire for two - and three-bedroom units in the Downtown and citywide – along with the recognition that some smaller units are appropriate to accommodate residents of all incomes, family situations, and stages of life. In particular, a need has been identified for development of new affordable housing and supportive housing, and market-rate multi-family projects near transit in Santa Monica. These discussions have occurred at Council, Planning Commission, and Housing Commission most recently in the context of the 2017 Downtown Community Plan, the 2015 Zoning Ordinance update, various amendments to the City’s Affordable Housing Production Program (AHPP), and preparation of the City’s Housing Element. Concerns have also been expressed related to the potential unintended consequences of development that provides only SRO-sized units (i.e., units less than 375 SF in size), such as the potential impact such units might have on the future population because of an assumption that small units cater to single person households – and that an over- concentration of market-rate SRO units will not create a neighborhood setting that includes a variety of housing options and promotes social connectedness and community wellbeing. Furthermore, in response to changing housing trends, additional scrutiny should be given to how livability is addressed through the physical design and shared amenities plan for market-rate Single-Room Occupancy uses. 4 of 8 It is important to note that this urgency interim zoning ordinance would not apply to Single-Room Occupancy uses proposed as 100% Affordable Housing Projects. or as certain specialized housing uses such as emergency shelters, transitional housing, and supportive housing. This exemption is provided in recognition of the need to continue to promote affordable housing and certain specialized housing uses and to remove barriers for projects by non-profit affordable housing providers in the City. Discussion Single-Room Occupancy Uses Defined Generally, Single-Room Occupancy uses include buildings or structures with residential units that may, but are not required, to have kitchen or bathroom facilities are no more than 375 SF is size. The definition of Single-Room Occupancy Housing is provided in SMMC Section 9.51.020(A)(1)(d)(ii) (Attachment C) and is further defined by standards for specific uses set forth in SMMC Section 9.31.330 (Attachment D) applicable to Single-Room Occupancy Structures. Note that a code-defined Dwelling Unit must be greater than 375 SF in size and contain full cooking, sleeping, and bathroom facilities pursuant to SMMC 9.52.020.0730 (Attachment E). Single-Room Occupancy Housing is a Multiple-Unit Dwelling sub-type and is a permitted use in most Zoning Districts in the City. Where permitted, SRO Housing proposed in compliance with Tier 1 development standards is subject to a non - discretionary Administrative Approval application and is subject to the Affordable Production Program set forth in SMMC Chapter 9.64. This urgency interim ordinance represents a temporary measure to prohibit Single- Room Occupancy uses citywide, including Single-Room Occupancy Housing and residential units that may, but are not required, to have kitchen or bathroom facilities and are no more than 375 SF in size, unless proposed as a 100% Affordable Housing Project as defined by SMMC Section 9.52.0050 (Attachment B) or certain specialized housing uses such as emergency shelters, transitional housing, and supportive housing as defined in the SMMC Section 9.51.020 (Attachment F). 5 of 8 Current Development Applications Since the Downtown Community Plan was adopted by Council on July 25, 2017, there have been six Tier 1 Administrative Approval applications filed for mixed-use housing projects in the plan area that propose 100% Single-Room Occupancy market-rate housing with 5% of the total units deed-restricted for Extremely-Low Income occupants per AHPP requirements. These six applications propose a total 363 SRO units in the Downtown, of which 345 units would be market-rate and 18 would be deed-restricted affordable for Extremely- Low Income occupants. The SRO units in these projects range in size from 219 -373 SF. Four applications were submitted in January 2019 and the remaining two were filed last year in July and September, respectively. Five of these six market-rate SRO projects supersede previously-approved or pending projects applications, including two 100% Affordable Housing Projects, that all proposed various mixtures of studio, one-, two-, and three-bedroom units. SRO Housing Projects SRO Units Manager’s Units Studio 1- BD 2- BD 3- BD Affordable Units – (as a subset of total units) Total Units Pending Projects (6) 362 1 0 0 0 0 18 363 Previously- Approved Projects (2) 0 0 37 32 31 7 57 107 Superseded Pending Projects (3) 0 0 2 85 30 20 46 137 Proposed Interim Zoning Ordinance Amendment In summary, the proposed urgency interim zoning ordinance would specify that Single - Room Occupancy uses shall be prohibited in all Zoning Districts unless the proposed project is: 1. A 100% Affordable Housing Project, as defined by SMMC Section 9.52.0050; 6 of 8 2. One of the following specialized housing uses: a. Elderly and Long-Term Care as set forth in SMMC Section 9.51.020(A)(3) b. Emergency Shelter as set forth in SMMC Section 9.51.020(A)(4) c. Residential Facility as set forth in SMMC Section 9.51.020(A)(7) d. Supportive Housing as set forth in SMMC Section 9.51.020(A)(8) e. Transitional Housing as set forth in SMMC Section 9.51.020(A)(9) 3. A Nonresidential Use as set forth in SMMC Section 9.51.030 4. Has been issued a valid building permit for construction prior to the effective date of this urgency interim zoning ordinance. For the purposes of this ordinance Single-Room Occupancy uses includes SRO Housing and Structures as defined by the Zoning Ordinance and residential units that may, but are not required, to have kitchen or bathroom facilities and are no more than 375 SF in size. This Council action would provide an opportunity for further study and for potential Council adoption of revised development standards, land use regulations, residential use classifications or definitions to consider whether additional requirements related to physical design and/or amenity plans are necessary for market -rate SRO uses. During this period the urgency interim ordinance is in effect, staff may also evaluate whether a minimum market-rate SRO unit size or a mandatory unit mix developed as part of Tier 1 housing projects Citywide is desired, with consideration given to changing regional housing trends, and consistent with housing-related goals and policies set forth in the 2010 Land Use and Circulation Element (LUCE) and 2017 Downtown Community Plan. The proposed SRO urgency interim zoning ordinance is set to expire on May 10, 2019 unless extended by the City Council in accordance with the provisions of Santa Monica 7 of 8 Municipal Code Section 9.46.090(D) and Government Code Section 65858. Pursuant to Section 65858, the prohibition on SRO uses may be extended for up to 22 months and 15 days for a total of two years only if the City Council is able to determine that approval of SROs that are not 100% Affordable Housing Projects or specialized housing uses such as emergency shelters, transitional housing and supportive housing, as currently allowed under the Zoning Ordinance would have a specific, adverse impact upon the public health or safety. Environmental Analysis The proposed interim ordinance is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of the State Implementation Guidelines (common sense exemption). Based on the evidence in the record, including, but not limited to, evidence that the interim zoning provisions represent a temporary change to use standards that would be more restrictive than existing use standards, it can be seen with certainty that there is no possibility that the proposed interim ordinance would have a significant effect on the environment. Therefore, no further environmental review under CEQA is required. Next Steps In accordance with SMMC Section 9.46.090(D) and Government Code Section 65858, this ordinance shall become effective immediately upon its adoption and will expire within 45 days, or on May 10, 2019. The Council would need to adopt Zoning Ordinan ce amendments prior to the expiration date of this urgency interim zoning ordinance or, as an alternative, extend this urgency ordinance for a total of two years subject to the findings set forth in Government Code Section 65858. The Planning Commission was scheduled to discuss and potentially adopt a Resolution of Intention (ROI) on March 20, 2019 declaring its intention to make subsequent recommendations on Zoning Ordinance amendments regarding Single-Room Occupancy uses, associated standards, or land u se regulations for Tier 1 mixed-use housing projects. If the Planning Commission adopts the ROI, the proposed red -line Zoning Ordinance would be reviewed by the Commission in April 2019 and brought 8 of 8 forward for Council adoption prior to May 10, 2019. Financial Impacts & Budget Actions There is no immediate financial impact or budget action necessary as a result of the recommended action. Prepared By: Roxanne Tanemori, Principal Planner Approved Forwarded to Council Attachments: A. SRO Urgency IZO 03.26.2019 B. SMMC 9.52.020.0050 C. SMMC 9.51.020(A)(1)(d)(ii) D. SMMC Section 9.31.330 E. SMMC 9.52.020.0730 F. SMMC 9.51.020 G. Written Comments H. Powerpoint Presentation 1 City Council Meeting: March 26, 2019 Santa Monica, California ORDINANCE NUMBER _____ (CCS) (City Council Series) AN URGENCY INTERIM ZONING ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA PROHIBITING SINGLE-ROOM OCCUPANCY USES THAT ARE NOT ONE-HUNDRED PERCENT AFFORDABLE HOUSING PROJECTS OR CERTAIN TYPES OF SPECIALIZED HOUSING SUCH AS EMERGENCY SHELTERS, TRANSITIONAL HOUSING AND SUPPORTIVE HOUSING WHEREAS, on July 6, 2010 the City Council adopted the Land Use and Circulation Element (“LUCE”) of the City’s General Plan; and WHEREAS, on December 10, 2013, the City Council adopted the 2013 - 2021 Housing Element of the City’s General Plan; and WHEREAS, the City’s new Zoning Ordinance, Chapters 9.01 through 9.52 of Article 9 of the Santa Monica Municipal Code (“Zoning Ordinance”), became effective on July 24, 2015; and WHEREAS, on July 25, 2017, the City Council adopted the Downtown Community Plan (“DCP”) and associated amendments to the Zoning Ordinance; and WHEREAS, each establishes and implements goals and policies that emphasize the need to provide a variety of housing types, sizes, and affordability levels in order to accommodate the residents of all incomes, family situations, and stages of life; and 2 WHEREAS, since July 2018, the City has received six applications for mixed-use housing projects in the Downtown Community Plan Area that propose 100% Single-Room Occupancy Housing; and WHEREAS, such a proliferation of a single housing type is inconsistent with the City’s goals and policies related to production of a variety housing types; and WHEREAS, an over-concentration of market-rate Single-Room Occupancy units could impact the future population of the City as such small units tend to cater to single-person households; and WHEREAS, such an over-concentration of Single-Room Occupancy units will not create a neighborhood setting that promotes social connectedness and community wellbeing; and WHEREAS, the City desires to allow Single-Room Occupancy uses that are one hundred percent affordable housing projects and certain types of specialized housing, including, but not limited to, emergency shelters, transitional housing, and supportive housing, to ensure the availability of housing for those most in need; and WHEREAS, the City Council finds and declares that there is a current and immediate threat to public health, safety and welfare that requires the adoption of the proposed ordinance, in that prohibiting Single-Room Occupancy uses that are not 100% affordable housing projects on an interim and immediate basis is necessary to protect goals and policies for maintaining a diverse community and creating residential uses to meet a diverse community’s needs in terms of housing type, size, and availability for different income levels. 3 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Interim Zoning Regulations. A) Single-Room Occupancy uses prohibited. Except as provided in paragraph B, below, Single-Room Occupancy uses shall be prohibited in all Zoning Districts. For purposes of this Ordinance, Single -Room Occupancy uses shall include uses, structures, and units defined, described, and/or authorized, by: 1) Land use regulations set forth in Santa Monica Municipal Code Sections 9.08.020, 9.08.030, 9.09.020, 9.10.040, 9.11.020, 9.13.020, 9.14.020, 9.15.020; 2) Santa Monica Municipal Code Section 9.31.330, setting forth standards for Single Room Occupancy Structures; 3) The residential use classification set forth in Santa Monica Municipal Code Section 9.51.020(A)(1)(d)(ii); and 4) Residential units that do not exceed 375 SF of floor area and are not required to have kitchen or bathroom facilities. B) Exceptions. The following shall not be subject to the prohibition set forth in paragraph A, above: 1) 100% Affordable Housing Projects, as defined by Santa Monica Municipal Code Section 9.52.0050; 2) The following residential use classifications: 4 a) Elderly and Long-Term Care, as set forth in Santa Monica Municipal Code 9.51.020(A)(3); b) Emergency Shelter, as set forth in Santa Monica Municipal Code Section 9.51.020(A)(4); c) Residential Facility, as set forth in Santa Monica Municipal Code Section 9.51.020(A)(7); d) Supportive Housing, as set forth in Santa Monica Municipal Code Section 9.51.020(A)(8); e) Transitional Housing, as set forth in Santa Monica Municipal Code Section 9.51.020(A)(9); and 3) Nonresidential use classifications, as set forth in Santa Monica Municipal Code Section 9.51.030. C) Applicability. Any project that has been issued a valid building permit on or before March 26, 2019 shall have a vested right to proceed without complying with this Interim Zoning Ordinance. SECTION 2. In accordance with CEQA Guidelines Section 15061(b)(3), this Interim Zoning Ordinance is exempt from CEQA as it can be seen with certainty that the proposed ordinance does not have the potential to significantly impact the environment. This determination is made based on the record as a whole, including, but not limited to, evidence that the regulations set forth in this Interim Zoning Ordinance represent a temporary change to use standards that would result in more restrictive use standards than existing regulations. 5 SECTION 3. Any provision of the Santa Monica Municipal Code or any appendix 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 prov isions of this Ordinance. 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. 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 with in 15 days after its adoption. This Ordinance shall become effective immediately upon its adoption. SECTION 6. This Ordinance shall be of no further force or effect forty-five days from its effective date, unless it is otherwise extended pursuant to Santa Monica Municipal Code Section 9.46.090 and Government Code Section 65858. APPROVED AS TO FORM: _________________________ LANE DILG City Attorney Attachment B SMMC Section 9.52.0050 100% Affordable Housing Project. Housing projects with a minimum of 25% of the units deed restricted or restricted by an agreement approved by the City for occupancy by 60% Income Households or less and the remainder of the housing units are deed restricted or restricted by an agreement approved by the City for occupancy by 80% Income Households or less. Such projects may include nonresidential uses not to exceed 33% of the project’s total floor area. Attachment C SMMC Section 9.51.020(A)(1)(d)(iii) 9.51.020 Residential Use Classifications A. Residential Use Classifications. 1. Residential Types. a. Single-Unit Dwelling. A dwelling unit that is designed for occupancy by one household, located on a single parcel that does not contain any other dwelling unit (except an accessory dwelling unit, where permitted), and not attached to another dwelling unit on an abutting parcel. This classification includes individual manufactured housing units installed on a foundation system pursuant to Section 18551 of the California Health and Safety Code. b. Accessory Dwelling Unit. A dwelling unit providing complete independent living facilities for one or more persons that is located on a parcel with another primary, single-unit dwelling as defined by State law. It shall include permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-unit dwelling’s location. A second unit may be within the same structure as the primary unit, in an attached structure, or in a separate structure on the same parcel. This use is distinguished from a duplex. See Division 3, Section 9.31.300, Accessory Dwelling Units, for further details. c. Duplex. A single building that contains 2 dwelling units or 2 single unit dwellings on a single parcel. This use is distinguished from an Accessory Dwelling Unit, which is an accessory residential unit as defined by State law and this Ordinance. d. Multiple-Unit Dwelling. 2 or more dwelling units within a single building or within 2 or more buildings on a site or parcel. Types of multiple-unit dwellings include garden apartments, senior housing developments, and multi-story apartment and condominium buildings. This classification includes transitional housing in a multiple-unit format. The classification is distinguished from group residential facilities. i. Senior Citizen Multiple-Unit Residential. A multiple-unit development in which occupancy of individual units is restricted to one or more persons 62 years of age or older, or a person at least 55 years of age who meets the qualifications found in Civil Code Section 51.3. ii. Single-Room Occupancy Housing. Multiple-unit residential buildings containing housing units that may have kitchen and/or bathroom facilities and are guest rooms or efficiency units as defined by the State Health and Safety Code. Each housing unit is occupied by no more than two persons and is offered on a monthly rental basis or longer. See Division 3, Section 9.31.330, Single Room Occupancy Structures, for further details. Attachment D SMMC Section 9.31.330 9.31.330 Single Room Occupancy Structures Single Room Occupancy (SRO) structures shall be located, developed, and operated in compliance with the following standards: A. Maximum Occupancy. Each SRO unit shall be designed to accommodate a maximum of 2 persons. B. Minimum Size. An SRO unit must have at least 150 square feet of floor area, excluding closet and bathroom. No individual unit may exceed 375 square feet. C. Minimum Width. An SRO of one room shall not be less than 12 feet in width. D. Entrances. All SRO units must be independently accessible from a single main entry, excluding emergency and other service support exits. E. Bathroom. An SRO unit is not required to but may contain partial or full bathroom facilities. A partial bathroom facility shall have at least a toilet and sink; a full facility shall have a toilet, sink and bathtub, shower or bathtub/shower combination. If a full bathroom facility is not provided, common bathroom facilities shall be provided in accordance with the California Building Code for congregate residences with at least one full bathroom per floor. F. Closet. Each SRO unit shall have a separate closet. G. Common Area. 4 square feet per living unit shall be provided, excluding janitorial storage, laundry facilities and common hallways. At least 200 square feet in area of interior common space provided as a ground floor entry area that provides a central focus for tenant social interaction and meetings. H. Tenancy. Tenancy of SRO units shall be for 30 or more days. I. Facility Management. An SRO structure with 10 or more units shall provide full-time on-site management. An SRO structure with fewer than 10 units shall provide a management office on-site. (Added by Ord. No. 2486CCS §§ 1, 2, adopted June 23, 2015) Attachment E SMMC 9.52.020.0730 Dwelling Unit. One or more rooms designed, occupied or intended for occupancy as separate living quarters, with full cooking, sleeping and bathroom facilities for the exclusive use of a single household. A dwelling unit shall exceed 375 square feet in size. Attachment F SMMC Section 9.51.020 A. Residential Use Classifications. 3. Elderly and Long-Term Care. Establishments that provide 24-hour medical, convalescent or chronic care to individuals who, by reason of advanced age, chronic illness or infirmity, are unable to care for themselves, and is licensed as a skilled nursing facility by the State of California, including, but not limited to, rest homes , nursing homes, and convalescent hospitals, but not Residential Care, Hospitals, or Clinics. 4. Emergency Shelter. A temporary, short-term residence providing housing with minimal supportive services for homeless families or individual persons where occupancy is limited to 6 months or less, as defined in Section 50801 of the California Health and Safety Code. Medical assistance, counseling, and meals may be provided. See Division 3, Section 9.31.130, Emergency Shelters, for further details. 7. Residential Facility. Facilities that provide permanent living accommodations and 24-hour primarily non-medical care and supervision for persons in need of personal services, supervision, protection, or assistance for sustaining the activities of daily living. Living accommodations are shared living quarters with or without separate kitchen or bathroom facilities for each room or unit. This classification includes facilities that are operated for profit as well as those operated by public or not-for-profit institutions, including group homes for minors, persons with disabilities, people in recovery from alcohol or drug addictions, and hospice facilities. See Division 3, Section 9.31.270, Residential Care Facilities, for further details. a. Residential Care, General. A Residential Facility licensed by the State of California and providing care for more than 6 persons. b. Residential Care, Limited. A Residential Facility licensed by the State of California providing care for 6 or fewer persons. c. Residential Care, Senior. A housing arrangement chosen voluntarily by the resident, the resident’s guardian, conservator or other responsible person, where residents are 60 years of age or older and where varying levels of care and supervision are provided as agreed to at the time of admission or as determined necessary at subsequent times of reappraisal. This classification includes continuing care retirement communities and life care communities licensed for residential care by the State of California. d. Hospice, General. A facility that provides residential living quarters for more than 6 terminally ill persons. e. Hospice, Limited. A facility that provides residential living quarters for up to 6 terminally ill persons. 8. Supportive Housing. Housing which meets the definition of Health and Safety Code Section 50675.14 with no limit on length of stay that are occupied by the target population as defined in subdivision (d) of Section 53260 of the California Health and Safety Code, and that are linked to on-site or off-site services that assist supportive housing residents in retaining the housing, improving their health status, and maximizing their ability to live and, where possible, work in the community. Supportive housing as defined by Subdivision (b) of Section 50675.14 may be provided in a multiple-unit structure or group residential facility. Facilities may operate as licensed or unlicensed facilities subject to applicable State requirements. 9. Transitional Housing. Dwelling units with a limited length of stay that are operated under a program requiring recirculation to another program recipient at some future point in time. Transitional housing may be designated for homeless or recently homeless individuals or families transitioning to permanent housing as defined in subdivision (h) of Section 50675.2 of the California Health and Safety Code. Facilities may be linked to onsite or offsite supportive services designed to help residents gain skills needed to live independently. Transitional housing may be provided in a variety of residential housing types (e.g., multiple-unit dwelling, single-room occupancy, group residential, single unit dwelling). This classification includes domestic violence shelters. See Division 3, Section 9.31.110, Congregate and Transitional Housing, for further details. (Added by Ord. No. 2486CCS §§ 1, 2, adopted June 23, 2015; amended by Ord. No. 2536CCS § 22, adopted February 28, 2017) 1 Vernice Hankins From:Council Mailbox Sent:Monday, March 25, 2019 5:25 PM To:Gleam Davis; Terry O’Day; Councilmember Kevin McKeown; Sue Himmelrich; Greg Morena; Ana Maria Jara; Ted Winterer Cc:councilmtgitems Subject:FW: SMDP: Council to debate ban on small apartments Council‐ Please see the below email regarding SROs. Thanks, Stephanie From: Matthew Stevens [mailto:mstevens901@gmail.com] Sent: Monday, March 25, 2019 4:17 PM To: Council Mailbox <Council.Mailbox@SMGOV.NET> Cc: Rick Cole <Rick.Cole@SMGOV.NET> Subject: SMDP: Council to debate ban on small apartments Dear Council, That we have demand for small apartments like this shows just how dire our housing crisis is. No one WANTS to live in an apartment under 300 square feet. But for many, the cost of housing in Santa Monica prevents them from renting anything larger. Instead of banning more homes, which is what got us into this mess in the first place, why not re-zone more land in the city? You allow people to build ridiculous 6,000 square foot homes on R1 lots throughout the city but you don't allow duplexes or fourplexes that could occupy the same (or even less) amount of space. If someone can fit a 6,000 square foot home on a lot, surely we can fit a 6,000 square foot fourplex with 4 town homes of 1,500 square feet each. Alternatively, (or better yet, additionally), you could rezone R2 and R3 lots to allow for just one more story. To mitigate displacement concerns, this additional story could be contingent on there not being any renters in the existing building. And parking would be restricted to the amount that was there before. For example, a 10 unit, 2 story dingbat with 10 parking spaces could be replaced with a 15 unit, 3 story structure again with only 10 parking spaces. Limiting parking would help ensure additional buildings do not jam our roads even more. This are very sensible reforms with little visual impact that would dramatically increase our housing stock. Instead of banning homes,why not try something a bit more creative? Regards, Matthew Stevens 1128 11th Street Item 7-A 03/26/19 1 of 14 Item 7-A 03/26/19 1 Vernice Hankins From:Council Mailbox Sent:Tuesday, March 26, 2019 12:54 PM To:Gleam Davis; Terry O’Day; Councilmember Kevin McKeown; Sue Himmelrich; Greg Morena; Ana Maria Jara; Ted Winterer Cc:councilmtgitems Subject:FW: Please allow smaller apartments downtown Council‐ Please see the below email regarding SROs. Thanks, Stephanie ‐‐‐‐‐Original Message‐‐‐‐‐ From: MICHAEL DE VILLIERS [mailto:mdevilliers@verizon.net] Sent: Monday, March 25, 2019 6:26 PM To: Council Mailbox <Council.Mailbox@SMGOV.NET> Subject: Please allow smaller apartments downtown Dear Council Members, I read that apartments smaller than 375 sf are proposed for several new buildings downtown. These apartments are needed in the context of our housing shortage and affordability crisis, provided that they are only for permanent housing for long term residents. Consider that downtown’s housing stock has a wide range of unit sizes. In that context, a number of buildings with all small units will not create skew downtown transient provided short‐term tenancy is prohibited. Instead these units should create needed workforce housing for one‐ and two‐person person households. With it’s concentrated services and transportation options, downtown is the place for larger numbers of apartments, and building small units helps make this possible, with building massing that’s in‐scale with the neighborhood. I have no affiliation with any developer interests in this matter. Thanks for your consideration, Michael de Villiers 1115 Arizona Avenue Sent from my iPad Item 7-A 03/26/19 2 of 14 Item 7-A 03/26/19 63581752v1 A Limited Liability Law Partnership Including Corporations / Los Angeles • San Francisco • Orange County Benjamin M. Reznik bmr@jmbm.com 1900 Avenue of the Stars, 7th Floor Los Angeles, California 90067-4308 (310) 203-8080 (310) 203-0567 Fax www.jmbm.com March 26, 2019 BY EMAIL AND HAND DELIVERY Hon. Mayor Gleam Davis and Hon. Members of the Santa Monica City Council 1685 Main Street, Room 209 Santa Monica, California 90401 Email: council@smgov.net Re: Opposition to Proposed Single-Room Occupancy Interim Zoning Ordinance Council Hearing Date: March 26, 2019 Agenda Item 7A 1323 5th Street, 1338 5th Street, 1415 5th Street, 1437 5th Street, 1437 6th Street, and 1557 7th Street (the “Projects”) Hon. Mayor Davis and Councilmembers: Our office represents WS Communities (collectively, “WS”), owner of and applicant for the Projects on several properties in the Downtown Community Plan area.1 Over the years, WS has invested heavily in the City, having produced residential dwelling units in a range of sizes, configurations, and affordability levels, and continues to do so today. We write on their behalf to object to the improper and unsupported Interim Zoning Ordinance (the “IZO”) scheduled for hearing on March 26, 2019. Among other legal defects: (1) the IZO violates State law regarding efficiency dwelling units; (2) the City simply failed to provide any of the findings State law requires to adopt an IZO, particularly on an urgency basis; (3) no urgency exists, as public health, safety, and welfare are not implicated and very few planning cases are affected; (4) the IZO violates the State’s Housing Accountability Act (the “HAA”)2; (5) the IZO violates the City Charter; and (6) in the case of WS, the City improperly delayed consideration of its vesting tentative maps, based on an unwritten “policy” that has no basis in the Subdivision Map Act (the 1 Pending applications include Vesting Tentative Tract Maps for 1323 5th Street, 1338 5th Street, 1415 5th Street, 1437 5th Street, 1437 6th Street, and 1557 7th Street. We refer collectively to these as the “WS Maps" and "Projects."” Attachment “A” includes the application numbers and submittal dates associated with each. 2 Govt. Code §65589.5 et seq. Item 7-A 03/26/19 3 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 2 63581752v1 “Map Act”)3 or the City’s Municipal Code. For all of these reasons, the City Council should decline to adopt the IZO and, particularly in the case of WS, the City must acknowledge the illegal and improper delays in deeming complete the WS Maps and instruct staff to process the Maps according to the pre-IZO building regulations. The failure to do so exposes the City to more than $100,000,000 in damages from the effective loss of the six pending SRO Projects. 1. The IZO Violates State Law Regarding Efficiency Dwelling Units. Assembly Bill 352 (eff. January 1, 2018) allows cities to enact ordinances permitting Efficiency Dwelling Units (“EDU”s) with a minimum of 150 square feet. The legislation also prohibits cities from restricting EDUs within one-half mile of public transit.4 Santa Monica has such an ordinance, and SROs in the Downtown area fall within one half mile of public transit—the Expo light rail station at 4th Street and Colorado. The City is subject to this law, and prohibiting or imposing limits on SROs would violate these provisions. AB 352 incorporates the International Building Code (“IBC”) definition of EDU, and requires a minimum floor area of 150 s.f., with 100 s.f. more for each occupant greater than two, and requires facilities such as a closet, kitchen sink, cooking appliance, refrigerator, and separate bathroom.5 Santa Monica’s SRO ordinance mirrors AB 352 and the IBC’s EDU definition and regulations in that the units: (i) may be between 150-375 square feet in size (ii) may contain a full or partial bathroom, and (iii) must have a separate closet.6 There is no dispute the six SRO Projects at issue fully satisfy the definitions of EDU provided in AB 352 and the IBC. The definition of SRO appearing in the City’s Municipal Code shares language and detail with the IBC7, and the City does not dispute the code-compliant nature of the Projects. Therefore, while the City may continue to regulate EDU development standards (e.g., height, density, FAR) State law prohibits the City from banning these units in the Downtown area, or in any area of the City within one half mile of any transit station. The same law also prohibits imposing an affordability requirement on those units. The State Legislature was explicit and specific as to the aspects of EDUs local agencies may control, and which regulations constitute a limit within the meaning of the law: subdivision (c) of the law exempts requirements related to density, setbacks, lot coverage, and height restrictions.8 However, the law explicitly does not exempt affordability requirements. Consequently, the 3 Govt. Code §§66410–66499.58. 4 Health & Saf. Code § 17958.1. 5 Int’l Bldg. Code § 1208.4. 6 Heath & Saf. Code § 17958.1(a). 7 Compare SMMC § 9.31.330, which defines SROs as: units designed to accommodate a maximum of two persons, with a minimum 150 and maximum 375 square foot unit size, and may but are not required to maintain a full or partial bathroom facility. 8 Id., subd. (c)(3). Item 7-A 03/26/19 4 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 3 63581752v1 City’s proposed requirement under the IZO that any SRO developments provide 100 percent affordable units constitutes an impermissible limit within the meaning of AB 352. 2. The California Government Code Requires Specific Findings for the IZO, and the Motion Does Not Even Attempt to Make Those Findings. To justify an urgency ordinance, Government Code section 65858(c) requires a finding of “current and immediate threat to the public health, safety, or welfare.” No such threat occurs here to justify an urgency ordinance. That findings must support an administrative decision and bridge the analytical gap between evidence and conclusions is a long-settled legal doctrine. Topanga Ass'n for a Scenic Community v. County of Los Angeles (“Topanga”) (1974) 11 Cal. 3d 506, 514–15. Reviewers of an agency's decision must be able to trace “the analytic route the administrative agency traveled from evidence to action.” Id. Further, “substantial evidence” must support the decision. (a) The IZO and Staff Report Provide No Basis of an Immediate Threat to Health, Safety, or Welfare. Substantial evidence is not merely the presence of any evidence that supports a particular conclusion; rather, the evidence must be of "ponderable legal significance… It must be reasonable[ ], credible, and of solid value[.]" Kuhn v. Department of General Services, Cal. App. 4th 1627, 1632-33 (1994) (internal citations omitted); cf Pacifica Corp. v. City of Camarillo, 149 Cal. App. 3d 168 (1983) (transcript of City Council debate is not by itself substantial evidence or a Topanga finding). Here, there is no substantial evidence regarding a current and immediate threat to public health, safety, or welfare, and therefore adoption of the IZO cannot be legally sustained. The affected Projects comprise a mix of work-force housing and housing affordable to individuals or households with extremely low incomes (30 percent of the area median income), intended to address an acknowledged local and regional shortfall. Further, the proposed findings of an urgency are replete with conclusory recitations unsupported by any specific facts. The vague claims of “over-concentration” are unsupported by any facts or data, let alone any substantial evidence, and fail to explain how otherwise code-compliant development based on recently adopted land use regulations could possibly constitute "over- concentration." Moreover, the negative concept of "over-concentration" which is usually attributed to limiting alcohol licensing, is completely misplaced and inapplicable to the facts and situation at hand. Is the city suggesting that the state policy of locating higher residential density near transit stations qualifies as "over-concentration?" And if so, what is the negative impact associated with this concept? The proposed IZO fails to explain or support how this proposed new concept of "over-concentration" for residential development results in a "current and immediate threat to the public health, safety, or welfare.” Item 7-A 03/26/19 5 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 4 63581752v1 The City's reliance on what it believes to be the presence of potentially substantial evidence is not sufficient if the determination does not clearly indicate how the evidence supports the final determination and “bridg[es] the analytic gap,” as required by Topanga. The proposed IZO contains only a few conclusory statements (recitations on page 2) that fail to explain how SRO development constitutes a threat to health, safety, or welfare, and fail to substantiate any claim of immediacy of any such threat, treating the conclusions as somehow self-evidently following from the little evidence provided. (b) Available Evidence Contradicts any Finding of Urgency. The City’s development of housing policy has evolved considerably since 2010 and at no point has the City deemed mixed income SRO units a threat. The City’s consideration and adoption of the Land Use and Circulation Element (“LUCE”) represents a portion of the policy framework for detailed housing plans for the last decade. The City adopted a new Housing Element in 2013, a comprehensive Zoning Ordinance update in 2015, the Downtown Community Plan (i.e. a Specific Plan) in 2017, and recently refined its inclusionary housing policy. The imbalance between jobs and housing, and the corresponding need for more housing overall, dominated the policy discussion surrounding each of these land use efforts. The City at no time during the many public hearings and thousands of hours of housing-focused policy debates considered prohibiting mixed income SRO units, which have been a permitted housing type in Santa Monica for many years. A count of pending, approved, and under-construction dwelling units of all kinds yields 27 projects with 2,149 units in the Downtown Community Plan area alone. The six pending SRO Projects referenced in the IZO represent only 361 of these units, or approximately 16 percent of the total pending Downtown units, and since the IZO ban is City-wide, the 361 Project units are a much smaller percentage, further degrading any statistical basis for the cl aim of "over- concentration". Thus, far from the kind of widespread development that could represent an imminent, community-wide threat to health, safety, or welfare, SRO development affected by the IZO represents a small fraction of development currently working through the City's administrative and ministerial permitting processes. Even if the City construed this number as too large, the simple and more focused remedy to prevent “over-concentration” of a particular housing type is prospective application of the IZO. The City’s reliance on the "over-concentration" argument is further undermined by the exemptions proposed in the IZO for projects that are 100% affordable. If an equal or greater number of SRO units than those currently proposed could be constructed in the interim or under any replacement regulations, as long as those SROs are affordable or serve other population segments, any claim of urgency on the basis of an over-concentration necessarily fails. This fundamental contradiction in the IZO alone militates caution and careful consideration, rather than urgency. Item 7-A 03/26/19 6 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 5 63581752v1 Further, the IZO and Staff Report simply fail to consider the need for such units. If the City believes a greater number of cases are affected or evidence a dramatic increase City-wide, the IZO or Staff Report must contain those facts and describe with particularity how those facts relate to the required findings. Absent such an analysis, an IZO, particularly on an urgency basis, is unsupported and unsupportable. 3. The IZO Conflicts with the Housing Accountability Act. The California Legislature has found that “California has a housing supply and affordability crisis of historic proportions” and that “The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.” (Govt. Code § 65589.5(a)(1)(B), (2)(A).) In response, the Legislature adopted the Housing Accountability Act (the “HAA“) to “significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to den y, reduce the density for, or render infeasible housing development Projects and emergency shelters.” (Gov. Code § 65589.5(a)(2)(K).) The IZO runs afoul of those prohibitions. (a) The HAA Prohibits Disapproval of Housing Developments Absent Certain Circumstances Not Present Here. The HAA prohibits a city from disapproving a housing development project, including reducing density or imposing conditions comparable to a density reduction, unless it finds, based on a preponderance of the evidence, that the project would have an unavoidable impact on public health or safety that cannot be feasibly mitigated in any way other than rejecting the project or reducing its size.9 The HAA specifically protects housing or mixed use projects that comply with objective general plan, zoning and subdivision standards, regardless of whether or not they provide affordable housing.10 The HAA requires that the proposed housing development comply with “applicable, objective general plan, zoning and subdivision standards and criteria, including design review standards, in effect at the time that the housing development project’s application is deemed to be complete . . .”11 Here, the SRO Projects referenced in the IZO comprise Tier 1 projects subject only to ministerial approval, though they also include requests for the WS Maps. Therefore, all of the Projects referenced in the IZO necessarily comply fully with the applicable zoning, Land Use and Circulation Element (“LUCE”), and Downtown Community Plan criteria. Further, the Staff Report concedes this conformance, stating, “these projects are technically compliant with the current code as drafted . . . ,” including the provision of affordable units (Staff Report, p. 2 of 8.) 9 Govt. Code § 65589.5(k). 10 Honchariw v. City of Stanislaus, 200 Cal. App. 4th 1066, 1070 (2011). 11 Id., § 65589.5(j)(1); emphasis supplied. Item 7-A 03/26/19 7 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 6 63581752v1 Consequently, even absent any requirement to provide affordable housing units, the Projects are subject to the full protections of the HAA. (b) The City Cannot Disapprove Zoning-Compliant Projects by Adopting the IZO. As the City concedes the Projects at issue comply with the relevant objective standards, the City may not disapprove the Projects or reduce their density, unless they would have “an unavoidable impact on public health or safety that cannot be mitigated in any way other than rejecting the project or reducing its size.”12 The HAA narrowly defines the public health and safety exception as a “specific, adverse impact“ that is a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.”13 The findings must be supported by a preponderance of the evidence, rather than the more deferential substantial evidence standard that normally governs such actions, and the City bears the burden to demonstrate that the evidence supporting its conclusion is greater than the evidence to the contrary. Moreover, the State Legislature confirmed the above with its passage of AB 3194 (Ch. 243, Stat. 2018), which modified section 65915.5(a)(3) of the Government Code to declare the Legislature’s intent that specific adverse impacts to health and safety “will arise infrequently.” The City may not utilize subjective criteria to support denial of a housing development project. In Honchariw, the Fifth District confirmed that a finding by the County that a site is “not physically suitable” for the project is not an allowable reason for denial under the HAA. The Court stated, “A finding by the County, pursuant to County Code section 20.12.140 or Government Code section 66474, that a project site is ‘not physically suitable’ does not relieve the County from compliance with section 65589.5(j) if the threshold compliance standards of that statute are met and if the County denies approval for reasons other than compliance with ‘applicable, objective general plan and zoning standards and criteria, including design review standards, in effect ....’ ” The Court further elaborated that “suitability” is a subjective, rather than objective criteria, and was the type of consideration that the HAA was designed to preclude local governments from using when considering housing developments.14 Here, the City Council’s proposed de facto denial of WS’ (and potentially others’) housing development Projects was not based on a preponderance of evidence in the record and did not make any of the findings of a specific, adverse impact to public health and safety. Further, as with the local agency in Honchariw, the City Council’s discussion focused on subjective, conjectural, and unsupported considerations of “social connectedness” and “community wellbeing”: exactly the kinds of subjective considerations the HAA was intended to forbid. The City Council also failed to consider—or in any event, failed to provide evidence it considered— 12 Id. 13 Id., § 65589.5(j)(1). 14 Honchariw, supra, at pp. 1070, 1076. Item 7-A 03/26/19 8 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 7 63581752v1 alternatives to address the alleged impact. Consequently, adoption of the IZO would fall far afoul of the HAA and cannot legally occur. (c) The HAA Exposes the City to Significant Liability for the De Facto Denial of WS Projects by the IZO. WS submitted SRO Administrative Approval applications for 1323 5th Street on September 18, 2018 and 1557 7th Street on July 10, 2018. These two applications have long been deemed complete, and the additional 30-day HAA statutory period for the City to identify inconsistencies with objective General Plan and zoning standards has also passed. Accordingly, the IZO violates the HAA by imposing new regulatory requirements on HAA protected housing Projects. Adoption of the IZO subjects the City to increased penalties under the HAA including a minimum of $10,000 per unit.15 As the City is now aware of this clear HAA violation, further action to disapprove the Projects may subject the City to the statute’s enhanced “bad faith” penalties.16 These penalties do not only apply to the two applications listed above. The Staff Report, as stated above, concedes the zoning-compliant and ministerial nature of the other SRO Administrative Approval applications submitted by WS. Consequently, the City could not now purport to find any of those Projects inconsistent with objective LUCE, Downtown Community Plan, and zoning criteria, and the rejection of those applications and denial of those Projects exposes the City to similar liability. 4. The IZO Conflicts with the City Charter and Municipal Code. Section 615 of the City Charter requires certain findings for emergency ordinances; chief among those is a finding of necessity “for preserving the public peace, health or safety.” Section 9.46.090B of the Municipal Code mirrors State law, and further requires the City Council to find that the IZO is necessary to address a “threat to public health, safety and welfare.” (Emphasis added.) However, both the IZO and Staff Report ignore these mandatory findings. In fact, a new, mixed-income building in the Downtown area poses no plausible threat to public peace, health, or safety. That the City may simply prefer a particular bedroom count does not constitute a public peace, health, or safety emergency, particularly in the context of the low proportion of SRO units to larger units. As described above, the number of SRO units currently proposed represents approximately 16 percent of the proposed and approved units in the Downtown area. Compared to the housing stock City-wide, this proportion is even smaller. Further, the IZO and findings ignore the role and demand for SRO units. What the Staff Report characterizes as a “loophole” is in fact a housing type with significant demand. The IZO and 15 Govt. Code § 65589.5(k)(1)(B)(i). 16 Id., § 65589.5(l). Item 7-A 03/26/19 9 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 8 63581752v1 Staff Report deride the SRO units as catering to single occupants while ignoring that serving those household types is the precise purpose of such units. 5. The IZO and Staff Report Proffer Discriminatory Rationales for Rejecting SRO Units. Section 65008(a) of the Government Code invalidates any discriminatory action by a local agency if it denies enjoyment of a residence by reason of a number of factors, including income levels and marital or familial status.17 Here, as stated in the IZO, the City’s action is motivated at least in part by the apparent desire to discourage a housing type that “cater[s] to single-person households.” That discrimination is compounded by the evidence-free claim that buildings consisting of SRO units do not “promote[] social connectedness and community wellbeing.” Whether taken separately or together, these statements precisely target and stigmatize marital or familial status and therefore constitute an unlawful and discriminatory basis for the IZO. Additionally, section 815.6 provides that where a public entity is bound by a mandatory duty imposed by a law enacted to prevent a specific harm, the entity is liable for the injury caused by its failure to discharge that mandatory duty. Here, as alleged above, the HAA imposes upon the City a mandatory duty to approve the WS Projects and Maps, particularly because the Municipal Code categorizes those approvals as purely administrative. The City’s failure to discharge that duty represents the proximate cause of precisely the kind of harm the HAA and section 65008 of the Government Code were enacted to prevent—the continued erosion of housing opportunities and the increase in the severe market-rate and affordable housing shortfall throughout the State and in the City. Section 65008(a)(1) invalidates any planning action that denies the enjoyment of residence to any person because of factors that include marital status and household type. The statements in the Staff Report appear to indicate a preference for traditional families and a belief that such families are necessary for community-building: these discriminatory findings are similar to the actions of Huntington Beach and other jurisdictions currently facing State legal action by the State for manipulating housing and growth policies to maintain the demographic status quo. Consequently, the City would violate section 65008 by adopting the IZO and precluding construction of market-rate SRO units on any similar basis. 6. The City Wrongly and Intentionally Delayed Deeming Complete WS’s Applications for Vesting Tentative Tract Maps, and Those Maps are Therefore Deemed Complete by Operation of Law. The Map Act requires regulation of vested projects (as defined in the law) only by the ordinances, policies, and standards in effect at the time an application for a vesting map is 17 Section 65008(a)(1) by its terms incorporates the factors listed in section 12955(a). Item 7-A 03/26/19 10 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 9 63581752v1 deemed complete, pursuant to the Permit Streamlining Act (the “PSA”)18. The PSA deems an application complete by operation of law if the agency does not notify the applicant in writing of any deficiencies within 30 days of submittal.19 The City’s Municipal Code includes corresponding provisions.20 Santa Monica’s Subdivision Ordinance similarly requires the Director of Planning to accept or reject subdivision maps within 30 days of submittal.21 WS attempted to submit vesting maps for the six SRO Projects on January 31, 2019. However, the City Planning Department would not accept the vesting map applications for formal processing until the Engineering Department undertook a month-long “pre-review.” This “pre- review” period is not codified in the Map Act or the Municipal Code or, as far as we are able to discern, any written policy or procedure adopted by the City. Rather, the Engineering Department pre-review appears calculated to allow the City to circumvent the strict 30-day timelines of the Map Act and Municipal Code, in contravention of the mandatory times established by both. Even assuming the legality of this uncodified and undocumented “pre-review,” the Engineering Department completed its review of the maps and deemed them acceptable on March 7, 2019. The Map Act is clear that the “local agency” must respond to an applicant regarding the completeness of the application within 30 days, and the Map Act does not distinguish among departments within the agency.22 Similarly, the PSA describes a “public agency” as the entity responsible for processing an application, and does not distinguish among departments of that agency.23 Therefore, the purported “pre-review” and the City’s communication (through the Engineering Department) that the proposed maps were acceptable constituted an affirmative determination of completeness under State law. The six SRO Projects are therefore vested within the meaning of the Map Act, and the ordinances, rules, policies, and procedures as of March 7, 2019 must therefore apply. As these complete applications pre-date the IZO, and the IZO cannot apply retroactively, the City cannot construe the IZO to preclude processing those applications. 18 Govt. Code § 66474.2(a). 19 Id., § 65943(b). 20 SMMC § 9.54.030F5. 21 Id., § 9.54.030D. 22 Govt. Code § 66420. 23 Id., §§ 65943, 65932 (a “public agency” is “any state agency, any county, city and county, city, regional agency, public district, redevelopment agency, or other political subdivision.” [emphasis supplied]). Item 7-A 03/26/19 11 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 10 63581752v1 7. The City has Failed to Satisfy Its Burden of Proof that the IZO is Categorically Exempt from CEQA. The City purports to exempt the IZO from review under the California Environmental Quality Act (“CEQA”; Pub. Res. Code § 21000 et seq.) based on the “common-sense exemption,” which does not apply here. The so-called “common sense exemption” under CEQA, set forth in CEQA Guidelines § 15061(b)(3), may only be employed where it is certain that no possibility exists the project may cause significant environmental impacts. Importantly, the decision to proceed under CEQA Guidelines § 15061(b)(3) must be supported by substantial record evidence, and the agency relying upon the exemption bears the burden of proving its applicability. See Davidon Homes v. City of San Jose, 54 Cal. App. 4th 106 (1997) (Exemption for interim control ordinance determined void because it was not supported by substantial evidence). Here, the City has provided no evidence, let alone substantial evidence, that no possibility of environmental impact could result from the IZO. Among other effects, the proposed moratorium and potential ban has the effect of preventing construction of Tier 1 dwelling units. Yet neither the IZO nor the Staff Report contains any evaluation of the effects of the IZO or foreseeable follow-on regulations on the City’s ability to meet its housing demand or goals, or to accommodate the population growth assumed in the LUCE and the Downtown Community Plan. Further, to the extent the IZO would shift SROs and potentially other units away from Downtown and potentially away from transit would promote vehicle use to a greater degree, increasing both vehicle trips and miles travelled. Again, the City bears the burden of proving the applicability of the common-sense exemption, and supporting its findings with substantial evidence. The City has not done so here. 8. The City has Failed to Satisfy Its Burden of Proof, and the City Council Should Decline to Adopt the IZO. For all of the reasons described above, the IZO and Staff Report are wrong on the law and facts, and fall far short of the evidence and findings required to support the IZO. Because the City bears the burden of proof, and because the actual action at issue bears little relationship to the requirements of State law and the City’s own Charter, no evidentiary basis exists to adopt the IZO and reject WS’s Projects. Further, the application of the IZO to WS’s properties, is illegal, prejudicial, and unjustified. /// Item 7-A 03/26/19 12 of 14 Item 7-A 03/26/19 Santa Monica City Council Proposed IZO re SRO Units March 26, 2019 Page 11 63581752v1 Accordingly, we respectfully request that the City Council deny the proposed IZO or, at a minimum, acknowledge the vested status of applications for, and exclude the Projects currently proposed for, 1323 5th Street, 1338 5th Street, 1415 5th Street, 1437 5th Street, 1437 6th Street and 1557 7th Street from the requirements of the IZO. Sincerely, BENJAMIN M. REZNIK NEILL E. BROWER of Jeffer Mangels Butler & Mitchell LLP BMR:neb Attachment cc: Lane Dilg, Esq., City Attorney David Martin, Director of City Planning Item 7-A 03/26/19 13 of 14 Item 7-A 03/26/19 ATTACHMENT A 1323 5th 1338 5th 1415 5th 1437 5th 1437 6th 1557 7th AA Application - Planning Application #18ENT-0283 19ENT-0041 19ENT-0042 19ENT-0039 19ENT-0040 18ENT-0206 Submittal Date 9/18/2018 1/31/2019 1/31/2019 1/31/2019 1/31/2019 7/10/2018 VTTM Application - Civil Engineering Application #19PWMISC-0016 19WMISC-0019 19WMISC-0020 19WMISC-0018 19WMISC-0017 19WMISC-0021 VTTM #82575 82579 82580 82578 82577 82576 Submittal Date 1/31/2019 1/31/2019 1/31/2019 1/31/2019 1/31/2019 1/31/2019 VTTM Application - Planning Application #19ENT-0089 19ENT-0087 19ENT-0086 19ENT-0084 19ENT-0088 19ENT-0090 Submittal Date 3/7/2019 3/7/2019 3/7/2019 3/7/2019 3/7/2019 3/7/2019 Item 7-A 03/26/19 14 of 14 Item 7-A 03/26/19 Recommend adoption Urgency Interim Zoning Ordinance –Single-Room Occupancy (SRO) Uses •Te mporary 45-day prohibition on SRO uses •SRO Housing and Structures –Zoning Ordinance defined •Residential units that may, but are not required, to have kitchen or bathroom facilities – and are at least 150 SF but no more than 375 SF in size •Exempts 100% affordable housing projects •Exempts specialized housing uses •e.g., supportive housing, transitional housing, emergency shelters Policy Guidance •Ensure consistency with 2010 LUCE and 2017 DCP goals & policies •Develop range of quality housing options –part of a complete community •Va riety of housing types and sizes •Serving a wide range of household sizes and income levels •Create neighborhood setting that promotes social connectedness and community wellbeing •Consideration given to changing regional housing trends •Focus on livability via physical design & shared amenities plan for SRO uses Purpose of Temporary Prohibition •Consider regulations in light of proposed proliferation and overconcentration of SRO uses: •Six Tier 1 Administrative Applications filed •363 SRO units (219-373 SF in size) •345 market-rate units •18 affordable units (5%) •Supersedes 5 projects •2 approved; 3 previously-pending •Mix of studio, 1bd/2bd/3bd units •greater affordability (42% of units) Potential Next Steps If Council adopts urgency IZO, staff proposes consideration of new Interim Zoning Ordinance amendments within 45-day period: •Single-Room Occupancy uses, including but not limited to: •land use designations •development standards •standards for specific uses •use classifications •definitions •April 3 –Planning Commission conceptual discussion on interim ZO amendments •April 23 –Council consideration of proposed interim ZO amendments REFERENCE: Ordinance No. 2604 (CCS)