Reader Responds to Planning Commission Discussion

by on May 31, 2014 · 6 comments

in Culture, Environment, History, Ocean Beach, Organizing, Politics, San Diego

Editor: There has been an entire discussion occurring in the comments to Friday’s post “Planning Commission Approves OB Plan Update But With New Language that Guts its Teeth on Variances“.  Seth Connolly – a current member of the OB Planning Board – shared his thoughts and we liked them for their clarity so much that we  repost it here.

By Seth Connolly

Speaking as a private citizen, I think there are a number of issues here beyond blanket terms such as “property rights” or “gentrification”. Property owners have the right to develop their properties within the bounds of the codes that everyone else has to adhere to, and hopefully, with strong consideration to policy documents such as the OB Precise Plan. Understand that while some of this is discretionary, this code is the *law* and not some arbitrary guideline to follow. Whether or not one likes the 0.7 FAR with 25% dedicated to enclosed parking or finds it too restrictive is about as relevant as thinking a 0.08 blood-alcohol content is too low for one to get a DUI.

The variance process exists to address special circumstances, and not to provide an end-around for some to buy their way out of the law. In other parts of this zone in OB, property owners have met the requirement for the 25% of FAR for enclosed parking by putting it all or partially underground. With a finished floor 6 feet or more below, it is not included in the FAR calculation and provides the property owner with more options within their “buildable space” that is otherwise largely defined by setbacks and the 30-foot height requirement. Whether that is a great idea in a coastal area that will likely face sea level rise and increased flooding is debatable, but it is something allowed within the existing code, aka law.

The homeowners in question are not eligible for this type of underground parking arrangement because they are in a floodplain. Not an arbitrary one resulting from a lack of municipal infrastructure, as Mr. Stebbins recently wrote in a letter to City Council, but an officially-designated FEMA Zone A floodplain – one that has determined that there is a 1% annual chance these properties will experience flooding during major storm events from either the San Diego River or Pacific Ocean. As an aside, considering that this floodplain was determined from 1978 data that did not really take climate change into account, it’s probably much higher than a 1% annual risk.

These property owners have argued that because of this, and because they have officially-designated “substandard-sized” lots of 6,000 sqft or less that lack alley access, that the FAR code/law is more restrictive to them than to others within the same zone. There is some degree of merit to this argument, to be sure. Some of the property owners have been vocal about threatening litigation, which I believe the City takes quite seriously, and is motivating them granting these variances to a large degree.

But here’s the thing… the same conditions that exist on these properties (substandard lot in a floodplain with no alley access), exist for another 100-200 parcels in that same zone and part of OB. The City has also granted a recent FAR variance for a property on Cable and Niagara that is substandard with no alley access, and not in the floodplain, conditions which exist for another 400 or so parcels in OB.

Using the variance process in this manner is no longer addressing special circumstances as intended, but systematically setting up precedent for up to 600 property owners within a square mile of each other to buy their way out of the rules that everyone plays by, which again, are law. Personally, it is hard for me to fathom another context where this would be legally acceptable. To revisit my previous analogy, if you get a 0.10 on the breathalyzer, can you offer the court $2,000 to drop the case because it’s only a “little bit” illegal?

If putting language into the community plan that is predisposed against granting future variances isn’t the means to address this issue, I can understand that. If the solution lies in some sort of compromise that clarifies the zoning code in an equitable manner than prevented homeowners from having to jump through all these hoops at their own expense, I can understand that too.

But what I think the decision-makers need to understand here is that enforcing your own laws is not an arbitrary or discretionary process. Even accounting for the gray areas of land development and variances, what is being done here has little to do with addressing special circumstances, and equates to a de facto rezone and skirting of the existing law by those who can afford to pay the City for it. This is almost certainly completely illegal, and it if takes going above their heads with a well-chosen and well-crafted citizens lawsuit that reminds them of their obligation to enforce the law of the land, that’s probably what needs to happen here.

{ 6 comments… read them below or add one }

avatar Seth May 31, 2014 at 6:01 pm

Thanks, Frank. Linked is an article that explains this in legal terms far better than I could ever do. There is substantial case law that has been established within California with regard to variances.

http://www.lacba.org/showpage.cfm?pageid=10959

Again, only speaking as a private citizen and not in the capacity of an OBPB member, which is only an advisory board to the City on matters of land use and development. If I were to offer any advice to the City as a private citizen, it would be to ask them to consider how solid their legal footing is here.

The article demonstrates rather well that it is probably not very solid at all.

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avatar John June 1, 2014 at 5:27 am

If I’m reading this right your point is that the 4 variances granted on W. Pt. Loma were fair because of actual legitimate factors (flood plain negating their option for underground parking) and would be fair to extend to the other 100-200 parcels with the same conditions- that seems to be common sense.
However it’s a mystery why the other variance was granted, and forgive my ignorance, how the owner could “pay the city” for it. Is there an additional permit process they had to go through to do this and is it that lucrative for the city? Or are you suggesting greased palms? If it’s simply an issue of special privilege for the rich, why can’t they get the same thing by building a house with underground parking (which raises the build cost substantially but allows more floor space)?
Is our owner on Cable and Niagara really just trying to get the same size house he’d get with underground parking but trying to do it cheaper by paying for extra permits/variances instead of a costlier build? If that’s the case maybe he’s not rich but smarter?
Do we really think that fighting this one issue will matter that much in the end? A block of 3 story Stebbins McMansions doesn’t really look much bigger than a block of 3 story homes with the same sq. footage but underground parking, does it? Heck when you factor in the additional complexity of digging a floor down, dewatering the soil, the instability that will be introduced to surrounding properties when their foundations settle, and other environmental factors, I’m not sure that blocking variances in those situations won’t be the worst thing you could possibly do!
Not trying to argue but clarify and you as always seem objective.
***it was noted by the Engineer of Stebbins’ original design that when the underground garage was excavated the foundation of my rental unit next door would be expected to settle and the slab possibly crack***
Even if forcing owners to build underground garages doesn’t harm adjacent properties all you might accomplish is to raise the bar for the level of gentrification you end up with- the new OB will have residents twice as rich as Stebbins, LOL.

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avatar Seth June 1, 2014 at 1:02 pm

I am saying that the rules are being circumvented in order for the City to duck a lawsuit by the homeowners in question. I should elaborate here that the decision-makers do have *some* degree of discretion here. They can amend the code in a public process, and they can grant variances provided certain legitimate criteria exists. Neither is happening here.

The necessary findings for granting a variance are listed here:
http://docs.sandiego.gov/municode/MuniCodeChapter12/Ch12Art06Division08.pdf

Two of these findings essentially equate to a property having “special circumstances” or an unreasonable “hardship” being created for the property owner if a variance is not granted. I am saying that there is nothing inherently special about circumstances that exist for another 100-200 nearby neighbors in the same floodplain with substandard lots with no alley access, or as many as 600 neighbors if we are just talking about substandard lots with no alley access not in the floodplain. I am also saying that a hardship would be defined as depriving the homeowner to build *any* structure, and not simply denying them the ability to add a 3rd or 4th bedroom.

Certainly not alleging any greased palms or bribes or the like. But as any of these homeowners could tell you, getting a variance is an expensive and time-consuming process – and yes, it does supply extra revenue to the City, however marginal. Not everyone can afford to do this.

My personal preference here is to see the rules applied fairly to all, and if the rules are inherently unfair, then let’s work together to amend them in a public and transparent manner. Again, this is not what is happening here.

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avatar John June 1, 2014 at 2:55 pm

Okay thanks for the clarification. I fully agree though I think that the 4 WPL homeowners have utilized the public process in a fair and transparent manner, (even if the city on their part were not) not sure why the Cable/Niagara homeowner sought a variance at all.

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avatar Jane June 5, 2014 at 5:06 pm

If any of the owners of the Mausoleums, sorry McMansions, on W. Pt. Loma Blvd. cared about the floodplain, why is the total surface of their properties solid concrete or tile? Not one with any permeable surface. The next El Nino will likely flood adjacent properties. And speaking of ugly and pedestrian un-friendly — why don’t they have any landscaping? Not a tree, shrub, bush, weed, flower pot or window box anywhere on the properties. Nothing to see but walls of stucco and concrete – including their back yards. The sterility is most un-OB-like.

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avatar Aging Hippie June 5, 2014 at 6:27 pm

So they can illegally shed rainwater on their neighbors’ property!

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