STRUMWASSER & WOOCHER LLP FreoeieD. Woocire 0940 wise BOULEVARD, SUITE 2000 Feasoone:(310)5761283 isis.) Smuanessen Los ANGELES, CALIFORNTS 90024 acs (10) 11.0156 October 10, 2016 Armen Melkonians Residocracy.org Via email to armen@residocracy.org Re: LUVE Initiative and reconstruction of damaged structures Dear Armen: At your request, I have analyzed the provisions of the Land Use Voter Empowerment (LUVE) Initiative and the relationship between its voter approval requirements and the reconstructions of structures that are damaged or destroyed in a fire, earthquake, or other natural disaster. [tis my conelusion that the provisions of the LUVE Initiative would not apply and that voter approval would not be required for the reconstruction of a damaged or destroyed existing structure. The statutory scheme established in the municipal code for the reconstruction of damaged buildings would apply to such structures so that voter approval would not be required for the mere reconstruction, with the same density, parking, building footprint and envelope, and height, of a structure that is damaged or destroyed in a natural disaster. LUVE Initiative's Voter Approval Requirements for Development Projects In brief, the LUVE Initiative requires a vote of the people of Santa Moniea prior to construction of two classes of projects: projects that have been approved by Development Agreement, and projects that require a Major Development Review Permit. The LUVE Initiative establishes that a Major Development Review Permit is required for projects that exceed the Tier 1 zoning limits, subject to enumerated exceptions for single unit dwellings, 100 percent affordable housing, and projects that exceed Tier 1 limits because of the inclusion of affordable housing on site. The LUVE Initiative establishes that “no Development Agreement [or] Major Development Review Permit... shall be effective until the majority of voters of the City of Santa Monica voting in a general or special election approve the Development Agreement [or] Major Development Review Permit.” The LUVE Initiative exempts a number of projects from voter approval, including 100 percent affordable and moderate income projects, 100 percent senior citizen housing projects, and projects consistent with the certified Local Coastal Program or projects which are consistent with the currently effective Housing Element. In addition to the new Major Development Permit and voter approval requirements, the LUVE Initiative amends, the General Plan Land Use and Circulation Element as well as several chapters of the Santa Monica Municipal Code (9.40; 9.60; and 9.52).October 10, 2016 Page 2 Santa Monica Municipal Code Provisions on Reconstruction The Santa Monica Municipal Code provides specific procedures for the reconstruction of non-conforming structures that are “damaged or destroyed by a non-voluntary fire or explosion, earthquake, or other natural disaster. . ..” (§ 9.27.040.) Such a structure “may be restored or replaced to its density (including square footage and number of rooms or dwelling units, as applicable), parking, building footprint and envelope, and height that existed prior to the destruction. ” (Ibid.) These provisions are established for the express purpose of “providfing] for the continuation of uses, continued occupancy and maintenance of structures, and development of parcels that were lawfully established but do not now comply with all of the standards and requirements of this Ordinance. . . .” (§ 9.27.010.) The term “nonconforming” is broadly defined: “Any lawfully established use or structure that is in existence on the effective date of this Ordinance but does not comply with all of the standards and requirements of this Ordinance or subsequent amendment, including, but not limited to, the lack of an approved permit or other required authorization shall be considered nonconforming.” (§ 9.27.020.) A “lawful nonconforming structure” is “a building or structure that was erected in compliance with the standards and requirements in effect when it was constructed but does not comply with all of the applicable provisions of this Ordinance including, but not limited to, density, floor area, setback, usable open space, and other development standards.” (Jd., subd. (B).) Under the provisions of section 9.27.040, a building that is destroyed or damaged may be restored to the same size and for the same use as prior to its destruction. For structures with less extensive damage (ess than 50 percent replacement cost and less than 50 percent of the walls being replaced), the process is essentially ministerial, unless significant design changes are included, in which case the Architectural Review Board must review the proposal. When the cost of repair exceeds 50 percent of the replacement value and 50 percent or more of the walls are replaced, Tier one properties are approved administratively with architectural review. For projects where “development on the parcel is above the development review threshold for the District in which it is located, a Development Review Permit is required prior to plan check.” (§ 9.27,040 2(c).) The required Development Review permit is set out in section 9.27.040, subdivision 3(c). The findings for the Development Review Permit are as follows: . The structure’s architectural design is substantially similar to the pre- damage design; or, if a significant design change is involved, the structure’s architectural design is compatible with the general area in which it is located; ii, ‘The plan for the proposed building or structure is expressive of good design and in general contributes to the image of Santa Monica as a place of beauty, creativity and individuality; iii, The proposed building or structure is not of inferior quality such as to cause the nature of the local neighborhood or environment to materially depreciate in appearance and value; andOctober 10, 2016 Page 3 iv. Ifthe structure is a Historie Resource, the repair will meet the Secretary of the Interior’s Standards and will not compromise the architectural or historical integrity of the structure or potential district; or, if reconstruction is involved, based upon an estimate from a professional experienced in rehabilitation of historic structures, it is not economically feasible to repair the structure.” ‘These findings are fairly general and largely foc little consideration of the impact of reconstruction on the demand for city serv’ neighboring environment. sed on the design of the structure. There is or on the Analysis: The LUVE Initiative Does Not Alter the Existing Legal Scheme for Reconstruction ‘The LUVE Initiative does not modify, amend, alter, or affect any of the municipal code provisions governing the reconstruction of nonconforming structures. There is no discussion in the LUVE Initiative of any intent to regulate existing development. The measure is focused on imposing voter approval requirements for new development. (E.g., p. 9, IV. Zoning Ordinance and Map Revisions, “Incorporate [sic] of special rules for new development that requests to build above the base height or intensity; such new development will be subject to a Major Development Review permit or its equivalent or a Development Agreement, subject to voter approval as established by ordinance, with those additional requirements consistent with the ‘community’s broader social and environmental goals.” (emphasis added).) Similarly, the sections of the municipal code that are modified by the LUVE Initiative pertain to new construction. (See, ¢.g., § 9.40.020, Applicability of Development Review Permit to “all new construction and new additions to existing buildings.”) Existing structures that did not receive voter approval under the LUVE Initiative are legal nonconforming structures under chapter 9.27. ‘The current law provides that any lawfully established structure that “does not comply with all of the standards and requirements of this Ordinance or subsequent amendment, including, but not limited to, the lack of an approved permit or other required authorization shall be considered nonconforming.” The LUVE Initiative is a subsequent amendment of the zoning code, amending the same Article of the municipal code in which the reconstruction provisions are found (Article 9). Because the structures would likey lack either a Major Development Review Permit or Development Agreement, and would also not have obtained the approval of the voters, the structures would be legally nonconforming buildings, because they would not have permits or other required authorizations. The structure could therefore be rebuilt in accordance with the procedures of section 9.27.040. The reference to a Development Review Permit in 9.27.040 does not suggest a contrary interpretation. The municipal code contains two distinct approvals, both with the name “Development Review Permit.” The LUVE Initiative amends chapter 9.40, Development Review Permit, to require that any project that exceeds Tier | standards must obtain a new Major Development Review Permit, which is set out in new chapter 9.51. The chapter 9.40 Development Review Permit for new construction requires a much more robust set of findings than the chapter 9.27 Development Review Permit for reconstruction. As just one example, theOctober 10, 2016 Page 4 chapter 9.40 findings require a determination that a project “provides Community Benefit consistent with Chapter 9.23.” (§ 9.40.050.) The findings under chapter 9.40 also require consideration of rights-of-way for pedestrians and bicycles, that health and safety services are sufficient to accommodate the new development, and that the project has undergone environmental review. (Jbid.) No such findings are required under chapter 9.27 for reconstruction of existing structures. There is no basis to conclude that the requirement in chapter 9.27 to obtain a Development Review Project is in any way amended by the LUVE Initiative to require a Major Development Review Permit for reconstruction of an existing building. ‘Any other interpretation of the interplay between the LUVE Initiative and the existing municipal code provisions regarding reconstruction of damaged buildings would run afoul of a number of canons of statutory interpretation. Voter initiatives are interpreted to apply the will of the voters. There is no indication in the LUVE Initiative that it is intended to address or limit in any way the ability to reconstruct after a disaster. It is very significant that none of the provisions of chapter 9.27 are amended by the LUVE Initiative. An initiative must contain the full text of all the provisions it amends, and the LUVE Initiative very comprehensively includes much of the Land Use and Circulation Element and full chapters of the municipal code wherever ‘a change is included. There is no textual support for an interpretation that LUVE applies to anything other than new construction. Moreover, it would be an absurd result if buildings that were non-conforming because they do not meet the requirements of the zoning code could rebuild without a vote of the peopie, but buildings that do otherwise meet zoning code requirements but simply lack voter approval would require a vote of the people to reconstruct. A statutory interpretation that leads to absurd results is highly disfavored. Finally, specific provisions control over more general provisions. While both the LUVE Initiative and the municipal code provisions on reconstruction are fairly specific, in the situation of a natural disaster, the current municipal code contains the only provisions that discuss reconstruction, and therefore these specific provisions would prevail over the more general development review provisions established for new development in the LUVE Initiative. In conclusion, the city’s existing law on reconstruction of non-conforming structures would apply to any structure damaged in a fire, earthquake, or other natural disaster. Because there is no voter approval requirement included in these provisions, reconstruction of an existing structure could take place without voter approval, regardless of the structure’s relationship to the existing code. Of course, the new structure could not be enlarged over the footprint of the damaged or destroyed structure, as set forth in chapter 9.27. Sincerely, Fe SGae Beverly Grossman Palmer