|
Club93108.net
APPEALS OF
MONTECITO PLANNING COMMISSION
The
attachments to the below appeals contain the substantive content of
the two appeals
Attachment of appeal by the CCPC (Coral
Casino Preservation Committee):
REASONS FOR THIS APPEAL
ATTACHED DOCUMENTATION FOR APPEAL TO
THE BOARD OF SUPERVISORS, COUNTY OF SANTA BARBARA
- The approval violates the Montecito
Community Plan (relevant page attached):
Policy CR-M-1.2: Improvements to the Coral
Casino recreation club shall be designed in a manner to protect and
enhance the historic use and architectural integrity of the
property. Any
renovations or new development on this property shall be constructed
at heights that do not exceed the height of existing
structures.
The historic use of the Coral
Casino has been as a private beach club, with limited hotel guest
access and community use of the assembly space. With the approval of the
proposed project, the Coral Casino will no longer be operated as a
private club, as the conditions contain no limit on hotel guest use,
and add other categories of non-member use, whereas the existing
As-Built Development Plan, under which the Club currently operates,
does contain limits.
Approval of the proposed project will
not protect and enhance the architectural integrity of the
Coral Casino. The
County’s independent architectural historian, San Buenaventura
Research Associates’ Mitch Stone, correctly determined that the
proposed project would have a Class I Impact (unavoidable,
significant, adverse impact) on the building and does not conform to
the Secretary of the Interior’s Standards for Rehabilitation, the
nationally-recognized criteria for assessing proposed alterations to
landmark structures.
The proposed project exceeds the
height of existing structures.
This restriction means quite literally what it says. The proposed project
includes a large restaurant addition on the rooftop of the
landmark. The height
of the existing structure where the restaurant is proposed to be
constructed is the roof level of the first floor.
Policy CR-M-2.1: Significant cultural
archaeological, and historic resources in the Montecito area shall
be protected and preserved to the extent
feasible.
The Historic Resource represented by
the landmark Coral Casino can be protected and preserved by
the adoption of a feasible alternative. The EIR deems two
alternatives to the project as Environmentally Superior
Alternatives. These
alternatives meet most of the applicant’s stated objectives without
harming the landmark.
- There is no substantial evidence
that the Environmentally Superior Alternatives are infeasible.
Feasibility is defined in the Coastal
Act and in CEQA as:
capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic,
environmental, social and technological factors. Pub. Res. Code Section
21061.1; See also Pub. Res. Code Section 30108.
The statement that “according to the
applicant, the proposed plan is necessary to provide the type of
amenities the owner and Coral Casino members ‘desire’”, (Staff
Report,
p. 21) is not evidence of
infeasibility. The
threat to allow this landmark to deteriorate, “the building could
face increasing deferred maintenance” (Staff Report, p. 21) if every
single ‘desire’ is not approved, is not evidence of
infeasibility. The
disputed amenity in question is the extent of the view from the
proposed roof top restaurant and an adequate view could be provided
by an Environmentally Superior Alternative. The Montecito Planning
Commission did not seriously consider either Environmentally
Superior Alternative.
- The Statement of Findings and
Overriding Considerations are not supported by
evidence.
There is no substantial evidence to
support a finding that the environmentally superior alternative is
infeasible. There is no
evidence to support the statement of overriding considerations: The enhanced private view
from the private restaurant—which is the source of the Class I
Impact under CEQA—does not create any benefit that would outweigh
the unmitigated impacts to historic resources, especially since the
impact to resources would not exist if the restaurant were located
on the first floor.
- Modifications, Variances and
Exceptions are Required to Permit this Proposed
Project
The Setback modification is not
supported by substantial evidence.
- Because the project is inconsistent
with the policies of the Montecito Community Plan and will have a
Class I Impact to historic resources, the project violates the
following provisions of the County zoning
ordinance:
- CZO Section 35-65 (requires
preservation of cultural sites if possible), and
- CZO Section 35-174.7
(requires that all adverse impacts be mitigated to the
maximum extent
feasible)
- The EIR is inadequate under CEQA
because it fails to identify all of the impacts to historic
resources, including the creation of a second entrance, and other
impacts set forth in correspondence to the Montecito Planning
Commission and the Historic Landmarks Advisory Commission, which
are contained in the County’s files and are incorporated by
reference herein.
_________________________________________________________________________________________________
Second
Appeal
|
ATTACHMENT - Appeal, Montecito Planning
Commission
It is
undisputed that the Coral Casino is the most architecturally
significant building in Santa Barbara with a style that is not
Hispanic or Mission Revival. Gardner Dailey
considered the Coral Casino to be one of his favorite
buildings. If our
architectural heritage is to have true meaning, exceptions
should not be given to zoning and other land use laws to allow
the compromise of the architectural integrity of buildings
with historic importance. There is even more
reason not to make these exceptions for designated
landmarks.
This
appeal is based upon the grounds set forth below, some of
which are set forth in the attached letters to the Montecito
Planning Commission (“MPC”), dated April 15, 20 and 27, 2005
and the Historic Landmarks Advisory Commission (“HLAC”), dated
April 20 and May 9, 2005. The letters to the
HLAC are relevant to this appeal because the determination of
the MPC was based on recommendations of the HLAC and the
content of the May 9 letter was previously presented to the
HLAC at its meeting on April 11, 2005. Some of the grounds
are set below.
1. THE MODIFICATIONS
GRANTED ARE PROHIBITED BY STATE PLANNING LAW. Zoning is the most
basic and fundamental of all land use restrictions. Zoning has been
accorded primacy by the California State Planning and Zoning
Law (Government Code Code Section 65000 et seq.) State law only permits
deviations from zone requirements in very limited
circumstances. California Government Code § 65906
states:
“Variances from the terms of the zoning
ordinances shall be granted only when, because of special
circumstances applicable to the property, including size,
shape, topography, location or surroundings, the strict
application of the zoning ordinance deprives such property of
privileges enjoyed by other property in the vicinity and under
identical zoning classification.
Any
variance granted shall be subject to such conditions as will
assure that the adjustment thereby authorized shall not
constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and zone in
which such property is situated.” (Adopted by Added by
Stats.1965, c. 1880)
Any
governmental authorization to deviate from the setback
requirements established by legal zoning is a
variance. It
does not make any difference if it is called a variance,
modification, deviation, reduction, waiver or anything
else. It still
must comply with the strict requirements for a variance.
2. THE NECESSARY FACTS DO NOT
EXIST TO JUSTIFY THE GRANT OF A VARIANCE FOR THIS
PROJECT.
3. THE EASTERLY ELEVATION OF THE CORAL
CASINO IS NOT MINOR.
Closing the enclosed alley or runway is a significant
addition. Moreover, Gardner Dailey’s architectural detailing
of the easterly elevation would be been eliminated.
4. ARTICLE II ALLOWS
BUILDINGS/STRUCTURES TO CONTINUE TO BE USED AFTER ZONING
CHANGES, BUT PROHIBITS ENLARGEMENTS,
EXTENSIONS
OR
EXPANSIONS OF NONCONFORMING STRUCTURES/BUILDINGS
There is
no showing in the Staff Report that this Project qualifies to
receive an exemption as a nonconforming use. The Staff Report only
refers to definitions and includes conclusionary statements
about authorization as a non-conforming use.
It is
undisputed that the Coral Casino’s building is a legal
nonconforming use.
(See Staff Report, p. 32, discussion of setback
requirements and reference to definition in Article II,
Section 35-58).
CONCERNING SETBACKS, THE STAFF REPORT STATES THAT
“PORTIONS OF THE BUILDING [THE CORAL CASINO
BUILDING/STRUCTURE] ARE CONSIDERED NONCONFORMING.” The Building does not
comply with the requirements of existing zoning law.
The
relevant portions of Article II are as follow:
DEFINITIONS (Article II, Section 35-58)
“NONCONFORMING STRUCTURE: A building or
structure, the setbacks, height, or location of which was
lawful prior to the adoption of this Article or any amendments
hereto, or previously adopted County Zoning Ordinances and
which does not conform to the present regulations of the
zoning district in which it is
situated.”
NONCONFORMING STRUCTURES AND USES, DIVISION 10,
Article
II, Sec. 35-60 (Purpose and Intent) states in, relevant part,
that:
“It is
further the intent of this Article, subject to only very
limited exceptions as specified to prevent nonconforming uses
and structures from being enlarged, expanded or extended, or
being used as grounds for adding other structures or uses
prohibited elsewhere in the same district.”
Sec.
35-162 (Nonconforming Buildings and Structures) states, in
relevant part, that:
“
If a building or structure is conforming as to use but
nonconforming as to setbacks, height, lot coverage, or other
requirements concerning the building or structure, such
structure may remain so long as it is otherwise lawful,
subject to the following
regulations.”
1.
Structural Change, Extension, or Expansion. A
nonconforming building or structure may be enlarged, extended,
moved, or structurally altered provided that any such
extension, enlargement, etc., complies with the setback,
height, lot coverage, and other requirements of this
Article.”
The
County has very limited exceptions, if any, which allow
nonconforming buildings and structures to be enlarged or
extended. ARTICLE
2 REQUIRES THAT THE EXCEPTIONS FOR A NONCONFORMING BUILDING OR
STRUCTURE BE CONSTRUED VERY NARROWLY. The proposed
reconstruction will enlarge the nonconforming
building/structure. The
reconstruction of the portions of the building/structure
within the setback areas will not comply with the setback
requirements.
The
existing Tower does not comply with the height limit in
35-81.9 (See Staff Report, p. 32), but the Staff Report states
that it is considered nonconforming. However,
additional facilities will be constructed within the portions
of the Tower located within the Setback area (stairs,
etc.). This will
also be an enlargement within the setback area.
Leading
authorities on Land Use and Zoning have discussed the
principles underlying nonconforming uses. It has been stated
that the provisions of most local ordinances allow repairs,
but extensive repairs are not usually allowed. Nonconforming
structures represent conditions which should be reduced to
conformity as is compatible with justice. In other words,
continued use of a nonconforming structure is permitted with
the goal of eventually making the property conforming. This is because the
presence of any nonconforming structure endangers the benefits
to be derived from a Comprehensive Zoning Plan. California law
contemplates the eventual termination of nonconforming
structures. If
the County had wanted to do so, it could have established a
time period to eliminate (amortize) nonconforming uses. Instead, it allowed
them to be continued, but not expanded or given an extended
life.
THE
ADDITIONS CONTEMPLATED FOR THE PROPOSED PROJECT ARE
INEXTRICABLY INTERWOVEN WITH THE NONCONFORMING PORTIONS OF THE
BUILDING.
MOREOVER, IT IS NOT CLEAR WHAT NONCONFORMING PORTIONS
OF THE STRUCTURE WOULD HAVE TO BE RECONSTRUCTED TO ALLOW THE
ADDITIONS. ANY
SUCH RECONSTRUCTION WOULD EXTEND THE LIFE OF THE NONCONFORMING
PORTIONS OF THE BUILDING WHICH WOULD BE A SEPARATE VIOLATION
OF ARTICLE II AND UNIVERSALLY RECOGNIZED PRINCIPLES RELATING TO
CONTINUANCE NONCONFORMING USES.
5. THE PROPOSED PROJECT
IS INCONSISTENT WITH THE MONTECITO COMMUNITY PLAN. The Montecito
Community Plan was adopted in 1992. Montecito Community
Plan Goal CR-M-1.1 states:
“Preserve
and Protect Properties and Important Structures With Historic
Importance to the Montecito Community to the Maximum Extent
Feasible.”
The Coral
Casino is specifically designated as one of those
structures. The
proposed second story restaurant violates Montecito Community
Plan Policy
CR-M-1.2 which states:
“Improvements to the Coral Casino
recreation club shall be designed in a manner to protect and
enhance the historic use and architectural integrity of the
property. Any renovations or new development on this property
shall be constructed at heights that do not exceed the height
of the existing structures.”
Policy
CR-M-1.1 uses the plural when it states “ heights that do not
exceed the height of the existing structures.” This means
all heights along each point of the
structure.
In essence, it establishes a vertical building envelope
where the existing structure is located. To decide otherwise,
would render that section meaningless. If one is to select
points higher than the vertical building envelope, why not
select the top of the tower as the height of the building?
This absurd example shows the unrealistic interpretation by
County staff.
If the
Montecito Community Plan intended a simple height limitation,
it could have selected a specific single height limitation but
it did not elect to take a simplistic solution. It wanted to
protect the entire building by not allowing it to be expanded
outside of the vertical building envelope that existed in
1992which was primarily designed by Gardner Dailey.
6. FAILURE TO COMPLY WITH
THE MINIMAL STATE REQUIREMENTS FOR CONFLICTS OF INTEREST
SHOULD INVALIDATE PREVIOUS APPROVALS. Failure of the
County to comply with the state law (statutory, regulations
and case law) have so tainted this project that it cannot be
approved.
7. COUNTY’S FAILURE TO
COMPLY WITH REQUESTS MADE PURSUANT TO THE PUBLIC RECORDS ACT
REQUIRE DENIAL OF THIS PROJECT. The Appellant made two
requests for documents relating to the proposed project
pursuant to the California Public Records Act, but the County
did not comply.
That failure to comply has limited the ability of the
appellants and others to respond adequately to assertions made
by the Applicant.
|
|
JAMES O.
KAHAN
ATTORNEY AT LAW
3709 Dixon
Street telephone
(805) 682-2972
(formerly Magnolia
Lane) FACSMILLE
(805) 682-8914
Santa Barbara,
California
E-MAIL jok@kahan.sb.com
93105
April 15, 2005
Montecito Planning
Commission
County of Santa
Barbara
123 East
Anapamu Street
Santa Barbara,
CA 93105
Re:
April 20 Agenda, Item 6
The Four
Seasons Biltmore and Coral Casino
Case No.
03DVP-00000-00002
Chair Robert
Meghreblian and Planning Commissioners
I want to
praise Ty Warner for his commendable work to restore the tower
and its light at the Coral Casino. The Coral Casino is a
unique property that Santa Barbara Architectural Historian
David Gebhard described as one of the most architecturally
significant buildings in Santa Barbara. As much as I would
like to discuss its special architecture and see Mr. Warner
use his resources to restore Gardner Dailey=s
AGem
of the Pacific@
to its original design of primarily a one story building with
a horizontal line, the focus of this letter will be on land
use issues.
The proposed
project should be denied for many reasons. First, it will not be
in compliance with the applicable zoning laws. It can only be
constructed if special exceptions are given for compliance
with the Zoning ordinance by issuance of substantial
variances.
Second, good planning principles do not permit the
continuance of non conforming uses and the Zoning Ordinance
does not countenance the use of the concept of non conforming
uses to permit a major demolition and reconstruction as
proposed with the proposed project. Third, the proposed
project conflicts with the Montecito Community Plan. Fourth, the proposed
project conflicts with the Local Coastal Plan. Fifth, the (Proposed)
Final EIR is not adequate. Numerous
legitimate comments to the Draft EIR were not answered. Adverse impacts were
not properly analyzed.
Many Class One Impacts were not recognized. And there were
numerous other inadequacies. Sixth, in light of the
major new information and the inability of project opponents
to comment on voluminous information submitted by the
Applicant and its agents, the (Proposed) Final EIR should be
re-circulated as required by the California Public Resources
Code, the regulations adopted pursuant thereto and the case
law. Finally, the
(Proposed) Final EIR and the Staff Report are tainted by
apparent non-compliance with the Fair Political Practices
Act. I AM NOT
ASSERTING THAT THERE IS ANY CONFLICT, BUT THERE HAS NOT BEEN
COMPLIANCE WITH THE LAW.
If this were a
good project, it would have been approved years ago and the
Applicant would have saved millions of dollars in development
costs. However,
it has been fraught with so many design defects that it could
not gain an easy approval. This project could not move
forward without the improper granting of zoning modifications,
an abuse of the non conforming use concept in a manner that
violates good planning principles and an unreasonable
interpretation of the Montecito Community Plan.
INTRODUCTION
I believe in
keeping things simple and focusing on a limited number of
arguments. If I
did not do so in this letter, it would have been much larger
by many magnitudes.
The lengthy
Staff Report obscures major problems. I could not locate
findings on the Modification issue or even criteria for
granting the modifications in the Staff Report. Unfortunately, there
were only conclusionary statements about the non-conforming
use issue.
Moreover, there was no discussion of the rationale to
justify ignoring the clear height limitation set forth in MCP
Policy CR-M.1.2.
Therefore, I sent the attached e-mail on April 13 to
Laura Bridley, Steve Goggia and Jennifer Klein which noted
these glaring admissions and asked for their
clarification.
(See Attachment A)
BACKGROUND
The Coral
Casino was designed by renowned Bay Area architect Gardner
Dailey and was constructed in 1937. The County of Santa
Barbara was one of the first local governments in the United
States to adopt a zoning ordinance when it did so in 1930.
Miller v.
Board of Supervisors (1981) 122 Cal. App. 3d 539, 541, 176
Cal. Rptr. 136 In
order to construct the Coral Casino in 1937, the Owner had to
obtain a variance (NOT MODIFICATION) from the setback
requirements. (EIR, Appendix I, p.12, par. 3) The setbacks for
the Coral Casino are 50 feet along its easterly property line
(Bonnymede) and 20 feet along Channel Drive. I sometimes refer to
the area within those limits as the horizontal building
envelope.
It should also
be understood that there is no entitlement to construct the
proposed project which has to be located on one of the
most regulated pieces of property in the United States. It is located in:
(1) Santa Barbara which
has given special considerations to planning, zoning and
historic preservation,
(2) Montecito
special zoning (Article IV), and
(3) Santa
Barbara=s
Coastal Zoning Ordinance (Article II).
It is further
regulated by:
(4) the
Montecito Community Plan,
(5) the Santa
Barbara County Coastal Plan and
(6) the
Montecito Architectural Guidelines and Development
Standards.
The Coral
Casino:
(7) was
formally recognized as architecturally significant by the
County in 1992,
(8) it now
qualifies for designation on the National Register of Historic
Places, but might if the proposed project is constructed and
(9) has been
designated as an historic Landmark by the County of Santa
Barbara.
The proposed
project has been considered by the County Historic Landmarks
Advisory Commission (HLAC) and the Montecito Board of
Architectural Review (MBAR). It is also appealable
to the Board of Supervisors and the Coastal Commission.
1. THE
STATE LAW SEVERELY RESTRICTS DEVIATIONS TO SETBACK
REQUIREMENTS IN ZONES
TO VERY LIMITED CONDITIONS
THAT REDUCE OF SETBACKS
Zoning is the
most basic and fundamental of all land use restrictions. Zoning has been
accorded primacy by the California State Planning and Zoning
Law (Government Code Code Section 65000 et seq.) State law only permits
deviations from zone requirements in very limited
circumstances. California Government Code '
65906 states:
AVariances
from the terms of the zoning ordinances shall be granted only
when, because of special circumstances applicable to the
property, including size, shape, topography, location or
surroundings, the strict application of the zoning ordinance
deprives such property of privileges enjoyed by other property
in the vicinity and under identical zoning classification.
Any variance
granted shall be subject to such conditions as will assure
that the adjustment thereby authorized shall not constitute a
grant of special privileges inconsistent with the limitations
upon other properties in the vicinity and zone in which such
property is situated.@
(Adopted by Added by Stats.1965, c. 1880)
Any
governmental authorization to deviate from the setback
requirements established by legal zoning is a
variance. It
does not make any difference if it is called a variance,
modification, deviation, reduction, waiver or anything
else. It still
must comply with the strict requirements for a variance.
The necessary
findings cannot be made to justify this project.
The land use of
the Biltmore property has been the subject of significant
litigation.
Hamilton v. Board of Supervisors (1969) 269 Cal.
App. 2nd 64, 75 Cal. Rptr. 106 involved a situation
wherein the Court set aside a variance that had been granted
to the Biltmore by the County.
In my comments
on the draft EIR, I raised the issue that there was no description of all
the discretionary decisions that are needed to permit this
project. There
should be one place in the EIR that listed and described all
necessary discretionary approvals (Development Plan,
modification or variance for zoning requirements, MBAR
approval, local coastal permit, etc.) that would be needed to
permit the proposed project and all the alternatives. The requirements for
obtaining those discretionary decisions should also have been
listed and described in the EIR. [EIR Appendices, Comment E,
p. 7, No.8 and County response No. 14 referred me to the Staff
Report (p. 47) which did not contain an adequate description.]
2. THE CONCEPT OF NON-CONFORMING USE DOES NOT JUSTIFY
THIS PROJECT
There is no
showing in the staff Report that this Project qualifies to
receive an exemption as a non-conforming use. The Staff Report only
includes conclusionary statements about authorization as a
non-conforming use.
Non-conforming uses are not intended to last forever.
They are merely intended to allow existing buildings to exist
for their lifetime.
THE PRINCPLE BEHIND NON-CONFORMING USES DOES NOT ALLOW
FOR THE EXPANSION OF A NON-CONFORMING USE, IN THIS MATTER THE
RECONSTRUCTION OF THE CORAL CASINO WITH A LARGE SECOND STORY
ADDITION.
3. MONTECITO COMMUNITY PLAN VIOLATIONS
The Montecito
Community Plan was adopted in 1992. Montecito Community
Plan Goal CR-M-1.1 states:
APreserve
and Protect Properties and Important Structures With Historic
Importance to the Montecito Community to the Maximum Extent
Feasible.@
The Coral
Casino is specifically designated as one of those
structures. The
proposed second story restaurant violates Montecito Community
Plan Policy
CR-M-1.2 which states:
AImprovements
to the Coral Casino recreation club shall be designed in a
manner to protect and enhance the historic use and
architectural integrity of the property. Any renovations or
new development on this property shall be constructed at
heights that do not exceed the height of the existing
structures.@
Policy CR-M-1.1
uses the plural when it states A
heights that do not exceed the height of the existing
structures.@ This means all heights
along each point of the structure. In essence, it
establishes a vertical building envelope where the existing
structure is located.
To decide otherwise, would render that section
meaningless. If
one is to select points higher than the vertical building
envelope, why not select the top of the tower as the height of
the building? This absurd example shows the unrealistic
interpretation by County staff.
If the
Montecito Community Plan intended a simple height limitation,
it could have selected a specific single height limitation but
it did not elect to take a simplistic solution. It wanted to
protect the entire building by not allowing it to be expanded
outside of the vertical building envelope that existed in 1992
which was primarily designed by Gardner Dailey.
MCP Policy
VIS-M-1.1 is also violated by the proposed project. Expanding the second
story toward the Pacific will impact the public=s
view of the landmark and mountain from certain locations for
those walking along the beach.
In my comments
on the draft EIR, I raised the issues about consistency with
MCP. (EIR
Appendices, Comment E, pp. 6-7, No.7 but County response No.
11 (p. 46) did not answer the consistency defect. .
4. THE
PROPOSED PROJECT CONFLICTS WITH THE LOCAL COASTAL PLAN
The
proposed project also conflicts with the Santa Barbara County
Coastal Plan, the policies, goals and objectives of the MCP
because they were incorporated into the Santa Barbara County
Coastal Plan. (See p. 182)
5. THE
(PROPOSED) FINAL EIR IS NOT ADEQUATE
The
(Proposed) Final EIR is not adequate. Numerous
legitimate comments to the Draft EIR were not answered. Adverse impacts were
not properly analyzed.
Many Class One Impacts were not recognized.
There were
numerous other inadequacies.
6. THE
(PROPOSED) FINAL EIR SHOULD BE RE-CIRCULATED
The
California Environmental Quality Act (ACEQA@)
requires that the (proposed) Final EIR be re-circulated for
many reasons, especially all of the new information that had
been submitted by the applicant to which the public was not
given a right to respond. (CEB, Practice Under
the California Environmental Quality Act, '16.13,
Public Resources Code '21092.1,
14 California Code of Regulations '
15088.5).
7. THE (PROPOSED) FINAL EIR AND THE STAFF REPORT ARE
TAINTED BY
APPARENT
NON-COMPLIANCE WITH THE FAIR POLITICAL PRACTICES ACT
The
(Proposed) Final EIR and the Staff Report are tainted by
apparent non-compliance with the Fair Political Practices
Act. I AM NOT
ASSERTING THAT THERE IS ANY CONFLICT, BUT THERE HAS NOT BEEN
COMPLIANCE WITH THE LAW.
The
County did not comply with the California Political Reform Act
(Government Code Sections 81000-91015). Government Code
Section 87100 states:
ANo
public official at any level of state or local government
shall make, participate in making or in any way attempt to use
his official position to influence a governmental decision in
which he knows or has reason to know he has a financial
interest.@
The
Act requires every public official to disclose his/her
economic interests that could foreseeably be affected by
his/her duties. (Sections 87200-87313). Moreover, there are
specific restrictions relating to members of non profit
organizations.
Section '
82048 defines a public official and it states: "Public official"
means every member, officer, employee or
consultant of a state or local government
agency.@
(Emphasis added)
Regulation Section 18701 clarifies some important
definitions of Public Official and states as follows:
A(a)
For purposes of Government Code Section 82048, which defines
>public
official,=
and Government Code Section 82019, which defines >designated
employee,=
the following definitions apply:
(1)
>Member=
shall include, but not be limited to, salaried or unsalaried
members of committees, boards or commissions with
decisionmaking authority. A committee, board or commission
possesses decisionmaking authority whenever:
(A) It may make a final
governmental decision;
(B) It may compel a
governmental decision; or it may prevent a governmental
decision either by reason of an exclusive power to initiate
the decision or by reason of a veto that may not be
overridden; or
(
C) It makes substantive recommendations that are, and over an
extended period of time have been, regularly approved without
significant amendment or modification by another public
official or governmental agency.
(2)
>Consultant=
means an individual who, pursuant to a contract with a state
or local government agency:
(A) Makes a governmental
decision whether to:
***
3. Issue,
deny, suspend, or revoke any permit, license, application,
certificate, approval, order, or similar authorization or
entitlement;
***
(B)
Serves in a staff capacity with the agency and in that
capacity participates in making a governmental decision as
defined in Regulation 18702.2 or performs the same or
substantially all the same duties for the agency that would
otherwise be performed by an individual holding a position
specified in the agency's Conflict of Interest Code under
Government Code Section 87302.
Deputy
County Counsel Jennifer Klein stated in writing that the
County does not require Consultants of the Planning and
Development Department to comply with the Fair Political
Practices Act and disclose financial interests. (Klein letter,
dated April 6, 2005, to James Kahan in response to request for
Public Records pursuant to the California Public Records Act,
p.3, Request 13 -14).
CONCLUSION
There
is no justification to set aside the limitations contained the
Zoning laws and the Montecito Community Plan to allow a
commercial expansion into an area that had a relatively
limited use.
The burden is on the Applicant to justify the
proposed project and the Montecito Planning Commission
should not undermine the Zoning laws and the Montecito
Community Plan which have helped enhance and preserve the
quality of life in Montecito.
Sincerely,
James
O. Kahan
Attachment
A (E-mail to Laura Bridley, dated April 13, 2005)
JK:ac |
____________________________________________________________
James O.
Kahan
ATTORNEY AT
LAW
3709 DIXON
STREET
formerly
Magnolia Lane)
SANTA BARBARA,
CALIFORNIA 93105-2419
April
20, 2005
Montecito Planning Commission
County of Santa Barbara
123
East Anapamu Street
Santa Barbara, CA 93101
Re:
April 20 Agenda, Item 6
The
Four Seasons Biltmore and Coral Casino
Case No. 03DVP-00000-00002
Clarification, Non conforming uses and
modification
Chair Robert Meghreblian and Planning
Commissioners
The
Coral Casino is a
nonconforming building.
There are long established land use principles and laws
that should be fatal to this project. The proposed Coral
Casino project is so inconsistent with the law that it should
never have gotten to this stage and should have been dismissed
years ago.
Because of new information that has been raised by
County staff and the failure to release information until late
yesterday, it is necessary for the record to file this
supplemental letter which supplements my previous letter,
dated and submitted on April 15, 2005.
1.
VARIANCES - CLARIFICATION
In
my letter, dated April 15, I wrote that A[T]he
necessary findings cannot be made to justify this
project. That
sentence should have read:
AThere
are not adequate facts in this matter to support the issuance
of a variance from the zoning restrictions.@
In
any event, Article II (Santa Barbara County Coastal Zoning
Ordinance) does not contain a provision to grant variances and
portions of Article II do not comply with State Law. If there is no
provision to grant variances, a variance cannot be granted.
Article II
only contains provisions for modifications (Section
35-179 of Article II) and its criteria for issuance do not
comply with California law (Government Code '
65906). Section
35-174.8 does not exempt compliance with the California Zoning
and Planning Law (Government Code Section 65000 et seq.) and
the requirements of Government Code Section 65906. There is no
exemption from compliance with State Law.
There must be facts to support any deviation from
the Zoning Law.
Moreover, those facts must be legally sufficient to
support the deviation from the Zoning Law and there must be a
connection between those facts and the deviation. The California Courts
have repeatedly required the enunciation of legally sufficient
facts to support variances and deviations from zoning laws as
well as in other land use matters. These principles have
been repeatedly upheld in California case law. The California Supreme
Court most clearly enunciated these principles in
Topanga Association For A Scenic Community v.
Los Angeles County (1974) 11 Cal.3d 506, 113 Cal.Rptr.
836, 522 P.2d 12 and it has been followed in hundreds of
cases.
2. ARTICLE II
ALLOWS BUILDINGS/STRUCTURES TO CONTINUE TO BE USED
AFTER ZONING CHANGES, BUT PROHIBITS ENLARGEMENTS,
EXTENSIONS
OR EXPANSIONS OF NONCONFORMING STRUCTURES/BUILDINGS
There is no showing in the Staff Report that this
Project qualifies to receive an exemption as a nonconforming
use. The Staff
Report only refers to definitions and includes conclusionary
statements about authorization as a non-conforming use.
It
is undisputed that the Coral Casino=s
building is a legal nonconforming use. (See Staff Report, p.
32, discussion of setback requirements and reference to
definition in Article II, Section 35-58). CONCERNING SETBACKS,
THE STAFF REPORT STATES THAT APORTIONS
OF THE BUILDING [THE CORAL CASINO BUILDING/STRUCTURE] ARE
CONSIDERED NONCONFORMING.@ The Building does not
comply with the requirements of existing zoning law.
The
relevant portions of Article II are as follow:
DEFINITIONS (Article II, Section 35-58)
ANONCONFORMING
STRUCTURE: A
building or structure, the setbacks, height, or location of
which was lawful prior to the adoption of this Article or any
amendments hereto, or previously adopted County Zoning
Ordinances and which does not conform to the present
regulations of the zoning district in which it is
situated.@
NONCONFORMING STRUCTURES AND USES, DIVISION 10,
Article II, Sec. 35-60 (Purpose and Intent) states
in, relevant part, that:
AIt
is further the intent of this Article, subject to only very
limited exceptions as specified to prevent nonconforming uses
and structures from being enlarged, expanded or extended, or
being used as grounds for adding other structures or uses
prohibited elsewhere in the same district.@
Sec.
35-162 (Nonconforming Buildings and Structures) states, in
relevant part, that:
A
If a building or structure is conforming as to use but
nonconforming as to setbacks, height, lot coverage, or other
requirements concerning the building or structure, such
structure may remain so long as it is otherwise lawful,
subject to the following regulations.@
1.
Structural Change, Extension, or Expansion. A
nonconforming building or structure may be enlarged, extended,
moved, or structurally altered provided that any such
extension, enlargement, etc., complies with the setback,
height, lot coverage, and other requirements of this
Article.@
The
County has very limited exceptions, if any, which allow
nonconforming buildings and structures to be enlarged or
extended. ARTICLE
2 REQUIRES THAT THE EXCEPTIONS FOR A NONCONFORMING BUILDING OR
STRUCTURE BE CONSTRUED VERY NARROWLY. The proposed
reconstruction will enlarge the nonconforming
building/structure. The
reconstruction of the portions of the building/structure
within the setback areas will not comply with the setback
requirements.
The
existing Tower does not comply with the height limit in
35-81.9 (See Staff Report, p. 32), but the Staff Report states
that it is considered nonconforming. However,
additional facilities will be constructed within the portions
of the Tower located within the Setback area (stairs+*,
etc.). This will
also be an enlargement within the setback area.
Leading authorities on Land Use and Zoning have
discussed the principles underlying nonconforming uses. It has been stated
that the provisions of most local ordinances allow repairs,
but extensive repairs are not usually allowed. Nonconforming
structures represent conditions which should be reduced to
conformity as is compatible with justice. In other words,
continued use of a nonconforming structure is permitted with
the goal of eventually making the property conforming. This is because the
presence of any nonconforming structure endangers the benefits
to be derived from a Comprehensive Zoning Plan. California law
contemplates the eventual termination of nonconforming
structures. If
the County had wanted to do so, it could have established a
time period to eliminate (amortize) nonconforming uses. Instead, it allowed
them to be continued, but not expanded or given an extended
life.
THE
ADDITIONS CONTEMPLATED FOR THE PROPOSED PROJECT ARE
INEXTRICABLY INTERWOVEN WITH THE NONCONFORMING PORTIONS OF THE
BUILDING.
MOREOVER, IT IS NOT CLEAR WHAT NONCONFORMING PORTIONS
OF THE STRUCTURE WOULD HAVE TO BE RECONSTRUCTED TO ALLOW THE
ADDITIONS. ANY
SUCH RECONSTRUCTION WOULD EXTEND THE LIFE OF THE NONCONFORMING
PORTIONS OF THE BUILDING WHICH WOULD BE A SEPARATE VIOLATION
OF ARTICLE II AND UNIVERSALLY RECOGNIZED PRINCIPLES RELATING TO
CONTINUANCE NONCONFORMING USES.
CONCLUSION
The
present Coral Casino is primarily a one story building with a
two story tower, but the proposed project will completely
alter its size, bulk, scale and proportions by transforming it
into a two story building with a one stump. In order to
approve this project, very tortured arguments must be used to
create many exceptions.
The
County Code permits the nonconforming buildings and structures
to remain.
However, it severely limits expansion or extension of
nonconforming buildings and structures. Moreover, generally
accepted principles related to nonconforming uses do not
justify the use of a nonconforming continuation or expansion
in this case, especially when the degradation of the
authenticity of an historic landmark is involved.
There is no justification to set aside the
limitations contained the Zoning laws and the Montecito
Community Plan to allow a commercial expansion into an area
that has had a relatively limited use. The burden is on
the Applicant to justify the proposed project and the
Montecito Planning Commission should not undermine the Zoning
laws and the Montecito Community Plan which have helped
enhance and preserve the quality of life in Montecito.
Sincerely,
James
O. Kahan
JK:ac
|
James O.
Kahan
ATTORNEY AT
LAW
3709 DIXON
STREET
(formerly Magnolia Lane)
SANTA BARBARA,
CALIFORNIA 93105-2419
TELEPHONE
(805) 682-2972
FACSIMILE
(805) 682-8914
E-Mail
jok@kahansb.com
April 27, 2005
Montecito Planning
Commission
County of Santa Barbara
123 East Anapamu
Street
Santa Barbara, CA
93101
TRANSMITTED BY PERSONAL DELIVERY
AND E-MAIL VIA CINTIA MENDOZA (cintia@co.santa‑barbara.ca.us)
AND TERRY CONTRERAS ( tcontre@co.santa-barbara.ca.us
)
Re:
April 27 Agenda, Item 2
The Four Seasons Biltmore and
Coral Casino
Case No.
03DVP-00000-00002
Chair Robert Meghreblian and
Planning Commissioners
The proposed project does
not comply with the law, sound planning principles or
generally accepted principles relating to historic
preservation.
During his career, Santa
Barbara=s late David Gebhard was universally
recognized as one of the two leading California architectural
historians. He
wrote extensively about architectural history and Gardner
Dailey. (see http://www.gardnerdailey.org/
) David Gebhard
considered the Coral Casino to be one of the most
architecturally significant buildings in Santa Barbara. Gardner Dailey
considered the Coral Casino to be one of his favorite
buildings. If our
architectural heritage is to have true meaning, exceptions
should not be given to zoning and other land use laws to allow
the compromise of the architectural integrity of buildings
with historic importance. There is even more
reason not to make these exceptions for designated
landmarks.
I previously explained my
objections in three letters [two letters addressed to the
Montecito Planning Commission (AMPC@), dated April 15 and April 20, 2005, a
third letter to the HLAC, dated April 20 and the attachments
to those letters] which were filed with the MPC. Some of the objections
can be summarized as follows:
1. The proposed project
can only be approved if a modification (exception) from
compliance with the Article II is granted.
2. State law restricts
variances (exceptions) from zoning laws to very few
situations.
California Government Code
' 65906 states, in relevant part,
that:
AVariances from the terms of the zoning
ordinances shall be granted only when, because of special
circumstances applicable to the property, ... the strict
application of the zoning ordinance deprives such property of
privileges enjoyed by other property in the vicinity and under
identical zoning classification.@
AAny variance granted ... shall not
constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and zone in
which such property is situated.@
In the past, Avariances@ were the only deviations from zoning
laws that have
been granted for the Coral Casino and Biltmore to permit
special exceptions.
There is no justification to deviate from the strict
standards required for variances.
3. For the proposed
project, facts do not exist to support the granting of a
variance, modification or whatever name is given for a
deviation or exception from zoning laws.
4. The principles
and law (Article II) allowing continuation (not enlargement,
expansion or extension) of nonconforming uses are being
ignored and erroneously interpreted to permit the proposed
project. Article
II, Sec. 35-160 (Purpose and Intent) recognizes limitations
about expanding nonconforming uses and states in, relevant
part, that: AIt is further the intent of this
Article, subject to only VERY LIMITED EXCEPTIONS as specified
to prevent nonconforming uses and structures from being
enlarged, expanded or extended.@
(Emphasis added)
5. The proposed
project is inconsistent with the Montecito Community
(AMCP@) Plan. Its Goal CR-M-1.1
states:
APreserve and Protect Properties and
Important Structures With Historic Importance to the Montecito
Community to the Maximum Extent Feasible.@
The proposed project does
not preserve a historic landmark, much less to the
AMaximum Extent Feasible.@
However, it grants exceptions inconsistent with
preservation of the Coral Casino, a landmark (more than a
historic property).
The proposed second story
restaurant violates Montecito Community Plan Policy CR-M-1.2 which
states:
AImprovements to the Coral Casino
recreation club shall be designed in a manner to protect and
enhance the historic use and architectural integrity of the
property. Any renovations or new development on this property
shall be constructed at heights that do not exceed the height
of the existing structures.@
There are at least two
sets of height limitations that are relevant to the proposed
project. The height limitations contained in the MCP are in
addition to the height limitations contained in Article
II. My comments
on the draft EIR raised the height inconsistency with
MCP. (EIR
Appendices, Comment E, pp. 6-7, No.7) but County
response No. 11 (p. 46) referred me to a method for
calculating the Abuilding height limitation ... as more
fully described in the FEIR Aesthetics section.@
However, there is no need for calculation to
override the constraints (limits) in Policy CR-M-1.2 which
established actual maximum heights specifically for the Coral
Casino when the Montecito Community Plan was adopted in
1992. The answer
on the height issue is very simple, i.e. determine the heights
of the structures at the Coral Casino as they existed in 1992
and those heights establish the limits and constraints. This is a counting
exercise that does not require complex calculations.
6. The proposed project
is inconsistent with the Santa Barbara County Coastal
Plan.
7. The (Proposed) Final
EIR is not adequate.
Numerous legitimate comments to the Draft EIR were not
answered. When
there was a written reply, the most frequent reply was a
brief
Acomment noted,@ i. e. there was no reason or
explanation supporting a conclusion. The most
egregious error was the incomplete and misleading
characterization of Class I impacts. Removal of
Ahistoric building fabric@ is definitely a Class I impact but to
limit Class I Impacts to (1) a non-existent Astone@ bench (FEIR, p.3. That is one of many
errors in the FEIR.
I believe that the reference is actually to concrete,
not stone.) and (2) second floor cabanas trivializes
significant adverse environmental impacts of the proposed
project. Some of
the other significant adverse impacts upon historic resources
include (1) alteration of the proportions of
Dailey=s design, (2) altering
Dailey=s design that emphasized a horizontal,
low lying structure to something that is more vertical, (3)
removal of original exterior railings, (4) removal of the
railings on the rooftop deck which outlined the original open
courtyard, (5) removal of the columns in the interior which
showed the outline of the original courtyard and the wrap
around dining room that surrounded it and (6) installation of
another entrance in the tower. (One of
Dailey=s design characteristics was the main
entrance for his buildings, but the split entrance detracts
from this major Dailey characteristic).
Dailey designed a low
intensity beach club, not hotel conference facilities as are
now proposed.
8. The California
Environmental Quality Act (ACEQA@) requires that the (proposed) Final
EIR be re-circulated for many reasons, especially all of the
new information that had been submitted by the applicant to
which the public was not given a right to respond.
9. The determination of
the HLAC that the (proposed) FEIR was adequate should be
ignored because of a fundamental inconsistency. The members of the
HLAC spent more than two hours discussing inadequacies of the
FEIR and
prioritized a lesser number of problems with the FEIR, but found that
the FEIR was adequate.
Problems with the FEIR and a determination of adequacy
are irreconcilable and completely inconsistent.
10. The recommendations of
HLAC should also be discounted and ignored because it did not
conduct an open meeting concerning the adequacy of the
(proposed) Final EIR.
The Applicant was given virtually unlimited time to
makes its presentation and participate, but the proponents of
historic preservation were not permitted to make complete
short presentations and were not recognized for any reply,
rebuttal or for anything else.
The County=s Ahistorical consultant@ gave information that raised
significant questions, but the historical proponents were not
allowed to raise questions about his statements at the HLAC
meeting.
Moreover, when some of these questions were submitted
to the historical consultant after the meeting, both he and
the County staff refused to answer. (see letter sent to the
HLAC, dated April 20, 2005, and its attachments.)
The HLAC ignored
information that architect Russell Levikow (the sole surviving
partner of Gardner Dailey) submitted in which he wrote that he
did not believe that Dailey approved Porter=s 1950 sketch of a restaurant on the
second story.
Levikow worked with Dailey and his letter cited facts
supporting his belief.
This is in contrast to the unsupported speculation that
Dailey had approved the sketch.
The HLAC made its decision
on adequacy after questionable statements were made that the
proposed project would not adversely impact the Coral
Casino=s eligibility for listing on the
National Register and a statement that Dailey had approved the
1950 sketch for a second story restaurant.
11. There is no evidence
that Gardner Dailey approved the covering of the open
courtyard at the Coral Casino in 1958. I have seen a
semi-legible copy of an Application for a Permit, dated 1958,
that mentions a roof, but I have not seen any plan or plans
prepared by Dailey for a covering over the courtyard. I searched the
County=s records for a plan or plans but had
no success.
Therefore, on October 3, 2004 and March 28, 2005, I
made separate formal requests pursuant to the Public Records
Act (Government Code Section 6250 et seq.) to the County to
inspect plans of the Coral Casino between dated between 1950
and 1960, but I did not receive any requested plan or plans
from the County.
The County=s response was that I should search the
records myself.
Case law requires the County to search its records in
response to a Public Records request. I would have preferred
if the County had advised me that there were no such
plans. Hence, it
is reasonable to assume that the County does not have plans
prepared by Dailey for covering the courtyard. Further consideration
of this project should be tolled until the County complies
with the minimal requirements contained in the Public Records
Act. In fact, I have not seen any evidence that Gardner Dailey
approved the any plans for the Coral Casino since his initial
designs in the 1930s.
12. The (Proposed) Final
EIR, the Staff Report and recommendations of the HLAC are
tainted by non-compliance with the Political Reform Act. I AM NOT ASSERTING
THAT THERE IS ANY CONFLICT, BUT THERE HAS NOT BEEN COMPLIANCE
WITH THE MINIMAL REQUIREMENTS OF THE LAW.
The California Political Reform
Act (Government Code) Section 87100 states:
ANo public official at any level of
state or local government shall make, participate in making or
in any way attempt to use his official position to influence a
governmental decision in which he knows or has reason to know
he has a financial interest.@
The Act also requires every
public official to disclose his/her economic interests that
could foreseeably be affected by his/her duties. This includes
consultants and members of the HLAC. But the County has not
required any of them to file Statements of Economic Interests.
13. Finally, after making
every one of the many discretionary decisions in favor
Applicant, it is necessary to make discretionary statements of
overriding considerations to circumvent the numerous
significant adverse environmental impacts as a condition for
certification of the FEIR.
CONCLUSION
THE LAW DOES NOT GIVE AN ENTITLEMENT FOR
THIS PROJECT. The architectural
qualities of the landmark Coral Casino should not be
undermined by granting discretionary exemptions from the laws,
Montecito Community Plan and other regulations.
Sincerely,
James O. Kahan
JK:ac
xc: J. Russell Levikow
| |
