On December 7th, the City Attorney Jan Goldsmith released a three-page memo in response to Councilmember Kevin Faulconer’s request for a ruling by his office on the City Development Services granting variances on floor area ratios to Ocean Beach developers. This all stems from an on-going controversy about whether it is proper and legal for the City to grant FAR variances on the fly, as it were, and not through the legal procedure the City has set up to change zones, etc. The memo to Faulconer, signed by Keith Bauerle, a Deputy City Attorney, is as follows:
Office of The City Attorney – City of San Diego
MEMORANDUM MS 59
This memorandum responds to your memorandum of September 1, 2011, in which you stated that the Ocean Beach Planning Board has expressed Concerns to you regarding Floor Area Ratio (FAR) Variances being granted in the Ocean Beach RM 2~4 zone. You have asked “whether the cumulative effect of granting multiple development variances has the same effect as a rezone, and Whether this process legally adheres to City rezoning procedures.” As discussed below, the cumulative effect of granting multiple development variances does notl1aVethe_sa111e effect as a rezone.
To answer your question, it is necessary to define and provide background concerning rezoning and Variances. “Zoning is a separation of the municipality into districts, and the regulation of buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land.” O’Loane v. O ’R0urke, 231 Cal. App. 2d 774, 780 (1965). The Zones and their requirements that govern land use in Ocean Beach, and the City generally, are found in Chapter l3 of the San Diego Municipal Code.
A “rezoning” of a property involves a reclassification of zoning applicable to the property, which changes the use or intensity of use allowed on the property. Rezoning is governed by the zoning and rezoning provisions of the San Diego Municipal Code. See SDMC 123.0101 through 123.0111. Rezoning a property requires that the City Council adopt an ordinance approving the rezoning. See SDMC l23.0l05(a). For example, the City Council on November 15, 2011 adopted an ordinance rezoning a property in Mira Mesa from one Multi-family residential Zone to another multi-family residential zone that allows for higher density. See 0-201 12, Rezoning 4.5 Acres from Zone into RM-3-7 Zone Mira Mesa Rezone Project No. 158201.
A variance is issued to allow a property owner to deviate from development regulations otherwise applicable to the property. The procedures and requirements for granting a variance are provided in Chapter 12, Article 6, Division 8 of the Municipal Code. Section 126.0804 provides that a decision on an application for a variance is made under Process Three, which necessitates a noticed public hearing before a Hearing Officer. The decision of the Hearing Officer can then be appealed to the Planning Commission, unless otherwise specified by the Municipal Code. Id. As with other land use decisions, if a. request for a variance is combined with other permits that require Process Pour or Process Five decisions, the Planning Commission or City Council respectively would be making the decision on the variances. See SDMC 112.0103.
Under the Municipal Code, Variances may be granted only if the decision maker is able to make the following four findings:
(a) There are special circumstances or conditions applying to the land or premises for which the variance is sought that are peculiar to the land or premises and do not apply generally 1:0 the land or premises in the neighborhood, and these conditions have not resulted from any act of the applicant after the adoption of the applicable Zone regulations;
(b) The circumstances or conditions are such that the Strict application of the regulations of the Land Development Code would deprive the applicant of reasonable use of the land or premises and the Variance granted by the City is the minimum variance that will permit the reasonable use of the land or premises;
(C) The granting of the variance will be in harmony with the general purpose and intent of the regulations and will not be detrimental to the public health, safety, or welfare; and
(d) The granting of the variance will not adversely affect the applicable land use plan. If the variance is being sought in conjunction with any proposed coastal development, the required finding shall specify that granting of the variance conforms with, and is adequate to carry out, the provisions of the certified land use plan.
SDMC 126.080È. As with all findings, these must be supported by substantial evidence. Topanga Association For a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506, 514 (1974).
The granting of FAR variances for properties in the RM 2-4 Zone therefore does not have the same effect as a rezone. The granting of FAR variances does not reclassify the Zoning applicable to the specie properties receiving the variances because it does not change the use or intensity of use allowed on the properties.
This office understands that you are also concerned that the proper level of public input is being provided in the decisions to grant variances in Ocean Beach. As stated above, the Municipal Code requires that variances be granted only after a noticed public hearing before a Hearing Officer, Planning Commission, or City Council, depending on the approvals sought. It is our understanding that all officially recognized planning groups receive notices of all public hearings for projects within their respective planning areas. If you have additional questions, please do not hesitate to contact our office.
JAN I. GOLDSMITH, City Attorney
By Keith Bauerle
Deputy City Attorney