Faulconer requests legal review by City Attorney of City improperly granting variances to West Point Loma property owners.

The 5100 block of West Point Loma Boulevard.

The battle over gentrification in Ocean Beach has ratcheted up a notch and has entered a new phase.   The Ocean Beach Planning Board has wrestled with the manner in which the City has been granting variances to property owners along the 5100 block of West Point Loma Boulevard of late, and the OB Rag has blogged numerous times about the issue.

Against the votes and opinions of the Planning Board members, the City has  granted variances to two or three property owners along that stretch of West Point Loma which allow them to circumvent the OB Precise Plan and its requirements. Board members believe this is not only improper as it bypasses the very planning forum that has authority to enforce the Precise Plan, but that it is a way for the City to rezone an entire neighborhood without going through the City’s own procedures. This would make the variances illegal.

Now, City Councilmember Kevin Faulconer has requested that Jan Goldsmith, the City Attorney, step in and make a legal decision about the controversy, about “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.”

This is significant, because at the August 3rd OB Planning Board, Faulconer’s representative Michael Patton told Board members:

“You guys aren’t going to like what [Faulconer] has to say, because he is fine with what they [property owners] are doing.”

The front lines of OB's battle against gentrification: the Stebbins residence on the left was the first property to obtain improper variances from the City. Next door - to the right - the Cox residence - was also granted the same variances.

This was reported  in a recent article in the Peninsula Beacon by Tony De Garate, and that Faulconer is reportedly “satisfied the variances have been properly approved.”

So this new development is significant. In a September 1 memo, Faulconer wrote:

Recently, the Ocean Beach Planning Board expressed concerns to me regarding Floor Area Ratios (FAR) variances being granted in the Ocean Beach RM 2-4 zone. The Board believes that as individual variances are granted for different development projects, an effective rezone of the neighborhood could occur over time without adequate public review.

I would like to ensure that any development in OB is occurring with the proper level of public input. Therefore, I request your legal opinion as to 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.

 Faulconer was responding to a letter written to him and Mayor Sanders (and other officials) by the Chair of the OB Planning Board, Giovanni Ingolia.  Here is his undated letter – sent sometime in late July or early August – Ingolia lays out the basic problem that the Board was having with the City.

 Dear Mayor Sanders,

The Ocean Beach Planning Board disagrees with some recent decisions and actions of the San Diego Development Services Department, in regard to the property at West Point Loma Boulevard.

City staff has supported variances from Municipal Code “Based on the substandard lot size (2500 sq ft) combined with the limitation of FAR in the RM 2-4 zone. We believe those variances are improper for the parcel in question and others in the same general area.

It should be noted that all the lots in question are and have been perfectly buildable without variances. There are fourteen properties in a single row on West Point Loma Boulevard that have been given substantial variances. We believe that the support of FAR variances for  so many properties in one small area constitutes re-zoning of these lots without adhering to City procedures for re-zoning.

The second issue is loss of public ocean views. Construction of all of these buildings will obstruct public views. Those views are called out in the OB Precise Plan Revision and should be preserved.

The Ocean Beach Planning Boad would appreciate your review of these issues. We oppose re-zoning of one property at a time thru granting requested variances and without following proper procedures for re-zoning.

Giovanni Ingolia, Chair, OBPB

Part of West Point Loma's front line against gentrification.

Additionally, Giovanni Ingolia wrote a letter to the Beacon in response to the article quoted above:

At the June 1st meeting of the Ocean Beach Planning Board (OBPB) we voted to send a letter to Mayor Jerry Sander’s office in response to the City’s Development Services Departments (DSD) re-zoning through variances. These variances allow property owners to exceed their Floor Area Ratio (FAR) in Ocean Beach thereby increasing size and scale of the homes. Three property owners in the community were granted variances that would allow that increase and this a major concern of the board. The letter was also sent to DSD, the City Attorney’s office and members of the City Councils Land Use and Housing (LUH) committee. Our council member, Kevin Faulconer, sits on that committee.

Ocean Beach is very unique in the fact that we are zoned RM-2-4. 64% of city parcels with this zoning are located within Ocean Beach. The entire RM-2-4 zone includes all the residential zones west of Sunset Cliffs. This means for every 100 sq ft of land, 70 square feet is buildable space, and of that space, 25% must be dedicated to enclosed parking. This gives the property owner 52.5 sq ft of livable space per 100 square ft of land they want to build on. Recently DSD has been allowing variances to property owners that would allow them to not include the 25% dedicated toward parking, thus increasing the size and scale of the homes on these properties to a scale larger than the zone allows. Our letter from the board to city officials stated that:

“City staff has supported variances from the Municipal code “Based on the substandard lot size (2500 square feet) combined with the limitation of F.A.R. in the RM-2-4 Zone.” City Staff has failed to correctly identify the hardship condition necessary to grant the variances and we believe the variances are improper for the parcels in question and others in the same general area.” It should be noted that all the lots in question are and have been perfectly buildable without variances for over 30 years since our Precise Plan identified the community’s desire to maintain low and small scale homes and structures in Ocean Beach and set the FAR level to specifically accomplish that design intent.

This is where the Board is at odds with City Staff. Our concerns were stated in last week’s Beacon article titled “Faulconer, OB?Planners at Odds on Beachfront Variances, Demolitions.” It should be noted that Faulconer is the only City Official that has responded to the letter. In addition Matt Awbrey, Faulconer’s Communications Director, has assured me that Faulconer is aware of the issue and OBPB’s concern. Faulconer is also consulting with the City Attorney’s office to see if there is anything DSD has done illegally when it comes to the issue of re-zoning through variances. We would prefer that the City docket this for a City Council hearing (Process 5) in order to determine the Community’s will to either support or change the municipal code in a proper and democratic fashion.

The projects on West Point Loma Boulevard are not the only location where this FAR variance was allowed by the City and therefore this is not an issue limited solely to one specific area of the community.

In addition to voting against these projects, the OBPB also voted unanimously against removing the 25% FAR requirement from the RM 2-4 zone when the City requested that the OBPB discuss the issue in August of 2010. The City has requested we either increase the allowed FAR or remove the parking requirement a number of other times over the course of history – all requests were rejected by the Board. Re-zoning through variances is a significant concern for members on the board as it is counterproductive to the public process and also dishonors the purpose for maintaining the Community Planning Group system in the first place. Under California state law, variances should be granted only under unique hardships. We don’t agree this hardship exists.

I personally welcome Kevin Faulconer, along with other council members who sit on the LUH board, to look into this matter and help us ensure future development in our community remains consistent with the existing small scale character we have identified as our priority planning goal.

Giovanni Ingolia

Chair

Ocean Beach Planning Board