ITEM 7-A
Council Mtg: April 14, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Appeal of Planning Commission Denial of Tenant
Participating Conversion 190, 1133 15th Street
Applicant: Valery Vekshtein
Appellant: Valery Vekshtein
INTRODUCTION
This report recommends that the City Council review the facts and
hear the applicant's testimony regarding the appeal to overturn
the Planning Commission's denial of TPC 190 and TTM 50953 for a
six-unit Tenant-Participating Conversion at 1133 15th Street.
BACKGROUND
On March 11, 1992, the Planning Commission denied Tenant
Participating Conversion No. 190 and Tentative Tract Map No.
50953 for a six-unit apartment building at 1133 15th Street.
On March 23, 1992, an appeal was filed by the applicant, Valery
Vekshtein. The applicant/appellant bases the appeal on three
primary arguments. First, the applicant/appellant argues that
the Commission did not take action on the proposal within 50 days
of the deem complete date of the application, and therefore the
application must be deemed approved pursuant to Government Code
Section 66452.4 (the Subdivision Map Act) and certain sections of
the Zoning Ordinance and Article XX. This argument is based on
the claim that the Commission's tie 2-2 vote, which resulted in a
technical denial, was equivalent to no action being taken. The
March 11, 1992 date of the Commission's vote was prior to the
Subdivision Map Act deadline of March 21, 1992.
The City Attorney's office states that the Commission's vote does
in fact constitute an "action" under Subdivision Map Act
guidelines. The Planning Commission voted on a motion for denial
of the application, and the motion received a 2-2 vote. Rule 2
of the Planning Commission's Rules of Order states: "...Action
granting approval of any substantive matter must be taken by a
majority of four Commissioners voting in favor, and a failure to
so approve results in automatic denial of the pending matter."
There has been no failure to act on the part of the Planning
Commission, and the application is not to be deemed approved
automatically under the provisions of the Subdivision Map Act.
Secondly, the applicant/appellant claims that a mistake made by
the applicant regarding the number of months of tenancy is not a
material mistake and therefore does not justify denial of the
application. The original application listed the following
participating tenants and lengths of occupancy:
UNIT PARTICIPATING TENANT MONTHS OF OCCUPANCY
1 Vekshtein 48
2 Movsesian/Sadoiana 24
3 Savarovsky 48
4 Kogan & Kogan 48
5 Finaman & Finaman 48
6 Aliman 48
The applicant/appellant now states that the lengths of tenancy
are as follows:
UNIT PARTICIPATING TENANT MONTHS OF OCCUPANCY
1 Vekshtein 35
2 Movsesian/Sadoiana 26-27
3 Savarovsky 34
4 Kogan & Kogan 41
5 Finaman & Finaman 36
6 Aliman 41
By providing utility bills for the subject property, the
applicant/appellant has demonstrated that all of the subject
building's occupants resided there for at least 6 months prior to
the filing of the TORCA application, and therefore qualify as
cosigning tenants under Article XX, even if an error was made
regarding their length of tenancy on the "tenant information
sheet" of the TORCA application. Therefore, the
applicant/appellant argues, the error is not material.
The City Attorney states that the misrepresentation as to length
of tenancy is material if the Council finds that it was made
intentionally.
Thirdly, the applicant/appellant argues that the Commission
denied the application, without factual evidence, based on the
finding that Ellis Act evictions had occured at the property
within five years prior to the application. However, based on
statements prior to and after the motion for denial, those
Commissioners voting in favor of the motion to deny did not do so
based on a conclusion that an Ellis Act eviction had occurred.
The Commissioners could not make the finding of eviction pursuant
to the Ellis Act because the Rent Control Administration could
not verify that such an eviction took place, as shown in
Attachment B of this report.
The record reveals that Commissioners Gilpin and Nelson voted to
deny the application because of intentional misrepresentations in
the application as to the length of residence at several of the
units. Based upon the evidence before the Commission (the
application, the letter from the applicant's attorney, and the
testimony at the public hearing), Commissioners Gilpin and Nelson
found that the misrepresentations were intentional. They did not
find, nor has staff found, that the length of residency of any of
the cosigning tenants was below the minimum of 6 months required
under the provisions of Article XX.
Commissioners Pyne and Rosenstein indicated that they did not
feel that there was a material or intentional misrepresentation
shown in connection with the application, nor was there factual
evidence presented that there had been Ellis Act evictions.
Based on these conclusions, Commissioners Pyne and Rosenstein
voted against denial.
Additional claims by the applicant/appellant are contained in
Attachment C of this report.
In conclusion, the length of residency in a unit is a material
element of the TORCA process. The application may have contained
an intentional misrepresentation as to that element and therefore
may be fraudulent. Further, it is within the inherent power of a
public agency reviewing an application before it to deny an
application which is fraudulent or contains an intentional
misrepresentation. The denial of the application by the Planning
Commission may be upheld by the Council.
BUDGET/FINANCIAL IMPACT
The recommendation presented in this report does not have any
budget or fiscal impact.
RECOMMENDATION
It is respectfully recommended that the Council review the facts
and hear the applicant's testimony. If the Council elects to
deny the appeal to overturn the Planning Commission's denial of
TPC 190 and TTM 50953 for a six-unit Tenant-Participating
Conversion at 1133 15th Street, it is recommended that the
appeal's denial be based on the findings contained herein. If
the Council elects to approve the appeal, the standard findings
and conditions required by Article XX may be made.
FINDINGS
1. Article XX, Section 2004(a) of the City Charter of the City
of Santa Monica provides that a Tenant-Participating Conversion
Application, along with any required tentative subdivision map or
tentative parcel map, shall be denied if the Tenant-Participating
Conversion Application fails to meet any of the requirements of
this Article; was the result of fraud, misrepresentation, threat
or similar coercion; or fails to meet any mandatory requirement
of the Subdivision Map Act of the State of California.
2. This Tenant-Participating Conversion does not meet the
requirements of Article XX of the City Charter along with all
mandatory requirements of the State of California, in that the
application contains an intentional misrepresentation that
applicants Vekshtein, Savarovsky, and Finaman were residents of
units 1, 3, and 5 for 48 months at the time the application was
prepared. A letter from the applicant's attorney indicates that
those units were in fact occupied by Max Difray, Avi Dadoun and
Phil Zukof 48 months prior to the preparation of the application.
3. A witness for the applicants stated during the public hearing
that she had misread the applicant's writing and that the
applicants were residents of the units for 40 months. Despite
the witness's statements, the letter from the applicant's
attorney reveals that the applicants were not residents for
either the 48 month period reflected in the application or the 40
months which allegedly should have been stated in the
application.
Prepared by: D. Kenyon Webster, Principal Planner
Drummond Buckley, Assistant Planner
Planning Division
Land Use and Transportation Management Department
ATTACHMENTS
A. Planning Commission Statement of Official Action
B. March 9, 1992 Memo from Rent Control Regarding Ellis
Eviction at 1133 15th Street
C. Appeal Form and Attachments