ITEM 7-A
Council Mtg: June 16, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Appeal of Planning Commission Approval of Tenant
Participating Conversion 183, 2110 Fourth Street
Applicant: HR Capital-Rossmore
Appellant: D. Longstreet, L. Auker, M. Hale, L. Gale,
L. Privo
INTRODUCTION
This report recommends that the City Council deny the appeal to
overturn the Planning Commission's approval of TPC 183 and VTTM
50638 for a 27-unit Tenant-Participating Conversion at 2110
Fourth Street.
BACKGROUND
On March 14, 1991, HR Capital-Rossmore filed Tenant Participating
Conversion (TPC) 154 for the conversion of a 27-unit apartment
building into condominiums at 2110 Fourth Street. On August 26,
1991, TPC 154 was withdrawn by the applicant after claims were
raised regarding the actual tenancy of two co-signers, Ron Kane
and Sam Rondazzo, and after tenant Ludmilla Privortskaya (spelled
"Privo" in the appeal) withdrew her support for the project. The
current application for the same building, TPC 183 and Vesting
Tentative Tract Map (VTTM) 50683, was submitted by HR
Capital-Rossmore on September 13 1991, and approved by the
Planning Commission on May 13, 1992.
On May 22, 1992, an appeal was filed by five residents of the
subject apartment building, D. Longstreet, L. Auker, M. Hale, L.
Gale and L. Privortskaya. The appellants base their appeal on
several claims which were also made at the the Planning
Commission public hearing. (Attachment A.)
The appellants question the validity of Ron Kane's tenancy, who
signed Agreement to Conversion ("Agreement") and Intent to
Purchase ("Purchase") forms on July 30, 1992. The appellants
claim that Mr. Kane did not begin residency until May of 1991,
less than the required six months before signing the Agreement
and Purchase forms. Furthermore, the appellants believe that Mr.
Kane has not paid rent for the apartment, which would disqualify
him as a "Participating Tenant" under the provisions of the
Tenant Ownership Rights Charter Amendment (TORCA). If Mr. Kane's
signature were found to be invalid, the number of tenants signing
the Purchase forms would fall below the minimum of 50%, thereby
requiring denial of the application.
In response to questions about Mr. Kane's tenancy, the applicant
has provided staff with a sworn affidavit by Mr. Kane, a letter
from a neighboring tenant, a lease agreement, and records from
Southern California Edison Company (SCE). (Attachment D.) In
the affidavit, Mr. Kane states that he "had possession of unit #
23 for six months prior to signing" the Agreement and Purchase
forms. A neighboring tenant, Stephanie Gordon, affirms Mr.
Kane's affidavit by stating that she has "witnessed occupancy in
apartment #23 since the beginning of 1991." The
applicant-provided lease agreement calls out a starting date of
January 15, 1991.
The SCE documentation provided by the applicant casts an element
of doubt on the date Mr. Kane began to reside at unit no. 23
because it indicates a service start-up date of February 14,
1991, 15 days after the earliest day Mr. Kane must have begun
residency for a valid signature, and almost a full month after
the January 15, 1991, date of the lease agreement provided by the
applicant. The applicant was also unable to provide canceled
check statements from Mr. Kane, stating that he had paid his rent
in cash which is a violation of the apartment management policies
stated in a September 5, 1990, letter included as an attachment
to the appeal statement. Although these issues raise doubts
regarding the validity of Mr. Kane's tenancy, the Planning
Commission concluded that the applicant has provided enough
evidence to find that Mr. Kane resided in his unit the minimum
time required to be a cosigning Participating Tenant.
The appellants have also provided a withdrawal of support from
Ludmilla Privortskaya, a tenant who signed the Agreement and
Purchase forms. Ms. Privortskaya stated she signed in order to
get her apartment painted and carpeted, and, in a further
explanation filed with the appeal, that she did not understand
what she was signing. The City Attorney's office states that,
because unit improvements such as painting and carpeting are
customary bargaining points when negotiating tenant approval, Ms.
Privortskaya has not demonstrated that she was coerced into
signing, and that her support at the time the application was
filed should therefore stand. A subsequent change of heart does
not invalidate the application.
Prior to the Planning Commission public hearing, two of the
appellants also brought to staff's attention a question regarding
the validity of a statement signed by Gary Murakami. Mr.
Murakami initially signed the Agreement and Purchase forms,
withdrew his support for the project on October 10, 1991, and
subsequently reinstated his support for the project on January
22, 1992. (Attachments C and D.) The appellants informed staff
that Mr. Murakami's letter reinstating support was written after
he had vacated his unit. However, because he had not
demonstrated coercion, misrepresentation or fraud by the owner in
his original letter of withdrawal, staff believes that Mr.
Murakami's original support for the project should stand.
Finally, the appellants claim that the the owner threatened
tenants with eviction pursuant to the Ellis Act if they would not
support the conversion, which would be in violation of TORCA.
However, this claim is contradicted in the correspondence of one
of the appellants, David Longstreet, who states that "...Ellis
was never threatened by the Applicants, [although] it was
mentioned by the former owner and in meetings for the former
owner if her efforts to dispose of the property to the Associates
failed." (Attachment C, Correspondence dated October 10, 1990,
page 10.) With the exception of the appellants, no other tenants
have reported the threat of Ellis eviction, and the applicant has
made a sworn declaration that the tenants were not so threatened.
A transcript provided by the appellant of a July 2, 1990 meeting
contains no reference to the Ellis Act. Staff believes there is
insufficient evidence to deny the application based on the claim
that signatures were obtained based upon threat of Ellis
evictions.
In another sworn affidavit, the applicant claims that, at a
meeting held prior to the Planning Commission hearing,
appellants attempted to make a "deal," offering their support for
the project only if he would sell their units to them for prices
in the $30,000 to $50,000 range, and if the applicant would
guarantee permanent tenancy to Beverly Longstreet. Furthermore,
the applicant stated that Mr. Hale said that "$200,000 would buy
[the applicant] four votes." If the applicant's statements are
true, they may have a bearing on the Council's decision in
weighing each side of the case. TORCA provides an opportunity
for tenants to negotiate the price of units, improvements, etc.,
before the application is filed and Agreement and Purchase forms
are signed. However, TORCA does not provide a mechanism for this
type of negotiation after an application has been filed.
Conclusion
The appellants have failed to demonstrate that there was any
fraud, misrepresentation or coercion on the part of the owner.
Furthermore, the applicant provided sufficient evidence of Mr.
Kane's tenancy. Therefore, staff recommends that the City
Council deny the appeal and uphold the Planning Commission's 5-1
vote to approve the TORCA conversion at 2110 Fourth Street.
Public Notification
Pursuant to Municipal Code Section 9131.5, notice of the Planning
Commission and, upon appeal, City Council public hearings was
mailed to all owners and residential and commercial tenants of
property located within a (300 foot) radius of the project at
least ten consecutive calendar days prior to the hearing. A copy
of the notice is contained in Attachment F.
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 appellants' and applicant's testimony, and, barring
any evidence which may be presented indicating a violation of
TORCA by the applicant, staff recommends that the Council uphold
Planning Commission's approval of TPC 183 and VTTM 50638 for a
27-unit Tenant-Participating Conversion at 2110 Fourth Street
based on the findings and conditions contained in the Planning
Commission Statement of Official Action. (Attachment G.)
Prepared by: D. Kenyon Webster, Principal Planner
Drummond Buckley, Assistant Planner
Planning Division
Land Use and Transportation Management Department
ATTACHMENTS
A. Appeal Statement
B. Planning Commission Staff Report
C. Correspondence in Opposition to the Application
D. Correspondence in Favor of the Application
E. Staff Correspondence
F. Public Notice
G. Planning Commission Statement of Official Action