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.