ITEM 7-B
Council Mtg: November 17, 1992
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Appeal of Planning Commission Interpretation of Section
9044.3(e) Regarding Parking Requirements for Changes of
Use
Appellant: Mayor Ken Genser
Introduction
This report sets forth an interpretation of Zoning Ordinance
Section 9044.3(e) regarding parking requirements for changes of
use. Essentially, the interpretation relates to the following
question: In situations where an existing building which does
not have adequate parking under the present Zoning Ordinance
undergoes a change of use, when must the property owner increase
the amount of parking to meet the standards of the present Zoning
Ordinance for the entire property?
The interpretation has broad application to a variety of
situations, but was specifically generated in relation to an
Administrative Approval and Occupancy Permit for 1620 Broadway.
The interpretation affects numerous changes in land use, and
adoption of a contrary interpretation would have significant
effects on numerous land uses, including residential uses.
The Zoning Administrator and the City Attorney's Office do not
concur in how Section 9044.3(e) of the ordinance should be
interpreted; action on this interpretation is intended to provide
resolution of the matter. The Attorney's Office provided their
own interpretation of the section to the Planning Commission
which is attached to this report.
The Planning Commission concurred with Planning staff's
interpretation of the section by a four to two vote with one
Commissioner absent; the Commission's action has been appealed to
the Council.
Appeal Issues
In making the appeal, the appellant indicated that he believed
that "The interpretation of the Zoning Administrator is contrary
to the applicable provisions of the Municipal Code." A detailed
explanation of this contention was not provided on the appeal
form. However, at the Planning Commission hearing on the matter,
the appellant indicated that he supported the reasoning of the
City Attorney as set forth in an August 12, 1992 memorandum (see
attached). These issues are addressed below.
Background
Section 9044.3(e) is part of the introductory provisions of that
section of the Zoning Ordinance which sets forth parking
requirements. The section establishes when the parking
requirements of the ordinance apply to buildings if the buildings
were developed under different parking standards and when there
is a change of use. The section states as follows:
(e) For any new use of an existing building or structure
such that the new use will require parking spaces, parking
spaces in the number specified in Section 9044.4 shall be
provided for the entire parcel.
A copy of the Section is included as Exhibit A.
Zoning Administration staff believes that there is wording
missing from this section. Specifically, staff believes the
section was intended to read "...such that the new use will
require more parking spaces, parking spaces in the number
specified in Section 9044.4 shall be provided for the entire
parcel." [wording in bold added], and that the section is not
logical unless it is interpreted that such a policy was intended.
This interpretation has long standing in the Planning and Zoning
Division. In December 1988, shortly after the Zoning Ordinance
became effective, the Principal Planner for current planning
issued a written statement to the current planning staff of how
this section should be interpreted (see Exhibit B). This
interpretation has been employed since that time in numerous
situations. Although this interpretation does not have the same
legal status as one filed with the Planning Commission, it has
been consistently applied by the Planning staff in numerous
situations, and is also consistent with prior practice under the
previous Zoning Ordinance, and with common practice in other
jurisdictions. Staff believes that the consistent practice in
interpreting this section should be given weight by the Council.
The 1988 interpretation was based on the premise that the section
was intended to apply to cases where the change in use resulted
in a higher parking requirement (such as a change in use from
retail to restaurant). A copy of the memorandum containing the
interpretation was provided to the City Attorney's Office in 1988
for their information, at which time no response was given.
Zoning Administration staff believes that the section is not
complete unless it applies in situations when there is a change
of use which results in a higher parking requirement. If read
without this intent, the section language is redundant. All uses
require parking spaces under the Zoning Ordinance, thus the
phrase "...such that the new use will require parking spaces..."
is unnecessary if the intent was to require a parking upgrade for
any change of use where existing parking is inadequate. This
language would not be redundant if the intent is understood as
recommended in this interpretation. The appellant has argued
that since the Zoning Ordinance does not require parking in the
Downtown Parking Assessment District, there are uses which do not
require parking, and therefore staff's reasoning is invalid.
This arguement is flawed for two reasons: first, there is no
parking exemption for the Downtown Assessment District in the
Zoning Ordinance (the provisions of the District are expressed in
a separate ordinance), and second, parking is required in the
Assessment District--but the Parking Authority, rather than the
property owner, is required to provide adequate parking.
The fact that parking spaces are required for any given use would
not seem to be critical in determining when an entire parcel
should be brought up to present-day parking standards. Such a
requirement would be substantial in the case of the numerous
(probably hundreds) of properties which do not provide as many
parking spaces as would be required for new development under the
present Zoning Ordinance. If one suite in a building with
inadequate parking changed tenants to a different use, parking
for the entire site would have to be upgraded, regardless if the
parking intensity as measured by the Zoning Ordinance is not
changing.
Zoning Administration staff believes that the intent of the
section was that parking requirements should change when the
intensity of the use (as measured by parking standards for the
old use versus the new use) increases, and that the objective of
the requirement was to discourage changes of use which
exacerbated parking problems (such as conversion of a retail
space to a restaurant). At the time the section was written,
this was of particular concern on Montana Avenue and Main Street.
The penalty for such a change of use (which intensifies parking
demand) is that parking for the entire site must be upgraded to
current standards, which in the case of numerous older
properties, would effectively preclude such a change of use since
land for added parking spaces would not be available.
Supporting the interpretation that the section is intended to
apply to situations where the change of use results in a higher
parking requirement is the wording of Section 9044.2., which is
the "Applicability" section of the Off-Street Parking
requirements, preceding Section 9044.3(e). This section states:
Every use or change of use resulting in a higher parking
requirement...shall provide permanently maintained
off-street parking areas pursuant to the provisions of
this Subchapter. [Emphasis added]
This section, which immediately precedes the section in question,
clearly establishes the principle that changes of use which
result in a higher parking requirement must meet current parking
requirements, and not that any change of use results in such a
requirement.
Adding further weight to the interpretation is the non-conforming
use Section 9080.4(d)(3), relating to when commercial parking
lots on residential land may remain. This section states in part
as follows:
...For purposes of this requirement, a change of use shall
be defined as any new use which requires more intense
parking standards than exists on the effective date of
this Chapter.
This section again sets forth the concept of requirements
applying when the change of use involves more intense parking
standards, as recommended in this memorandum. City Attorney
staff have correctly stated that this section is independent of
Section 9044.3(e), but Planning staff believes that the concept
of this section is directly pertinent to the interpretation
before the Council.
Staff reviewed various drafts of the Zoning Ordinance as
background to this interpretation. In the Second Draft of the
ordinance, the section read as follows:
For any new business that intensifies the use of an
existing building or structure, parking spaces in the
number specified in Section 9044.4 shall be provided for
the entire parcel.
It is unclear what the word "intensifies" in this version means.
In the Third Draft of the ordinance issued in January 1987, the
Applicability section wording is identical to that ultimately
adopted. However, the wording of subsection (e) is as follows:
For any new business that intensifies the use of an
existing building or structure such that the new use will
require additional parking under this section. parking
spaces in the number specified in Section 9044.4 shall be
provided for the entire parcel.
Without the language which was lined out, the wording of the
section is incomplete, and clearly the section did not make sense
and needed revision.
In the Fourth Draft of the ordinance, the section read:
For any new use of an existing building or structure such
that the new use will require parking spaces in the number
specified in Section 9044.4 shall be provided for the
entire parcel.
This section also is incomplete and does not make sense as
written.
By the time the Fifth Draft of the Zoning Ordinance was
developed, the wording of the section had evolved to the adopted
language. Zoning Administration staff believes that in the
process of refining the language of the section, the final
wording did not adequately express the City Council's intent,
which was to apply the requirement when the new use had higher
parking requirements.
An alternate interpretation would be that the Council
deliberately adopted the language in question, and that the
legislative history illustrates their intent. However, Zoning
Administration staff believes that this section needs to be read
in conjunction with the other sections of code cited in this
memorandum (the "Applicability" section, and the "Non-conforming"
section), as well as with an understanding of the planning
principles which motivate the section, and when this kind of
broad view of the section is taken, the most logical
interpretation is that the section applies when the change of use
involves a new use with higher parking requirements.
A contrary interpretation of this section to that offered by the
Zoning Administration staff would have significant implications.
As applied currently, changes of use involving permitted uses
which have identical parking requirements as compared to the
former use do not trigger the requirement that the entire parcel
be brought up to current parking requirements. This seems
appropriate, since the parking intensity of activity on the
parcel would not change, as measured by code requirements.
For example, under Zoning Administration staff's interpretation,
a change of use in one suite of a building from office
(requirement of 1 space/300 sq. ft. of floor area) to retail
(also 1/300 requirement) would not trigger upgrading of parking
for the entire parcel. Likewise, a change of use from industrial
to art gallery space would not trigger the requirement, since
both uses have the same 1/300 parking standard.
Under the Zoning Administrator interpretation, a change of use to
a business with a higher parking standard (for example from
retail at 1/300 to restaurant at 1/75) would trigger the upgrade.
The City Attorney would apply the parking upgrade requirement to
any change of use at a site where there is inadequate parking.
This would penalize changes of use which actually reduce parking
demand, for example, a change of use from bar use (at 1/50) to
restaurant use (at 1/75), requiring upgrade of parking on the
entire parcel when parking demand is decreasing, and in effect
discouraging such a de-intensification of use. This seems
contrary to general planning principles and the objectives of the
Zoning Ordinance. If adopted as an interpretation, this would
likely force the maintenance of higher-intensity uses, the
redevelopment of the property and the removal of older buildings,
or the need to apply for a parking variance.
The interpretation of this section likely affects hundreds of
properties in Santa Monica, since most existing buildings were
not developed under current parking standards, and in the
non-residential zones, a multiplicity of uses are permitted. The
range of situations affected would depend upon the meaning given
to "change of use." If the "change of use" term is no longer
interpreted on the basis of parking intensity, an interpretation
would be needed as to what types of changes were "changes of
use." For example, changes of use could include such broad
categories as "commercial", "residential", and "industrial", or
there could be finer-grained distinctions such as "retail",
"office", "restaurant", "single-family residential",
"multi-family residential", etc.
If a broad interpretation of "change of use" were adopted, the
section would fail to apply to a change of use involving a change
from retail to restaurant, since both are "commercial" uses. In
that particular example, this would facilitate the change to a
more parking-intense use, which Zoning Administration staff
believes is contrary to the section's intent. If a finer-grained
approach to defining "change of use" is employed, and if one 1000
sq. ft. suite in a 50,000 sq. ft. building not meeting current
parking standards changed from an office to a store, parking for
the entire parcel would have to be upgraded to current standards,
even though the change of use would not change parking demand, as
established by the Zoning Ordinance. This would seem to be
contrary to the general principle of "grandparenting" since the
parking demand of the new use is the same as the former use,
resulting in no change in the parking needs at the site.
Related to the issue is how Subchapter 9, "Nonconforming
Buildings and Uses" of the Zoning Ordinance interacts with this
interpretation. Section 9080.3 of the Ordinance defines "legal,
nonconforming" uses, and subsection (b) of that section indicates
that:
If a legal, nonconforming use ceases operation for a
continuous period of six months or more, that use shall
lose its legal, nonconforming status, and the premises on
which the conforming use took place shall from then on be
used for conforming uses only...
The appellant and City Attorney staff have indicated that they
believe this section requires a parking upgrade if a use within a
building with inadequate parking spaces is ceased for six months
or more. Planning staff does not concur, and believes that this
section governs uses, and not the physical elements of buildings,
such as parking, floor area, or setbacks. There are separate
sections, in some cases with timelines for compliance with
current standards, governing nonconforming buildings. This
section has never been interpreted by Planning staff to require
buildings which have been empty for six months or more to meet
current physical development standards (i.e., a residential
building with sideyards one foot short of current requirements
having to be demolished or remodeled to meet current standards
where such building has been unoccupied for six months or more).
Following through with the appellant's and City Attorney's
interpretation would result in potentially devastating
consequences to all types of land uses in the City, including
housing. For example, a single family home with less than two
parking spaces which was unoccupied for six months or more could
not be reoccupied without current code parking being provided, or
an apartment in a residential building with inadequate parking
which was empty for six months or more could not be occupied
unless code parking was provided for the building. Similarly, if
a retail space in a building lacking full code parking was empty
for six months or more, the space could not be leased to any
business unless code parking were provided. Particularly in a
difficult economy, it is not unusual for residential or other
types of properties to be unoccupied for six months or more while
an appropriate buyer or tenant is sought. The results of
following the City Attorney's and appellant's interpretation on
this issue would likely reduce the availability of housing as
well as places where business could be conducted, in addition to
having significant adverse impacts on property owners, and
potentially the City itself through reductions in revenues from
utility taxes, business license fees, sales taxes, and other
sources. Planning staff believes that these outcomes would be
undesirable, are not consistent with the overall intent of the
Zoning Ordinance, and that the interpretation which would lead to
these consequences is inconsistent with the specific provisions
of the ordinance.
In discussion of this issue at the Planning Commission, the
appellant indicated that someone in this situation could apply
for a variance from having to provide full code parking in these
types of situations. However, the variance process typically
takes two to three months to complete (assuming no appeal, which
would add two to three additional months to the process), and can
entail not insignificant expense (for the filing fee, preparation
of notification lists, and in some cases legal and architectural
services). Finally, employing the interpretation adopted by the
Planning Commission would eliminate the need for any such
variance.
Council Authority
Under Section 9100.3 of the Zoning Ordinance, the Zoning
Administrator may file a written interpretation with the Planning
Commission. The interpretation becomes effective 14 days from
the date the item appears on the Commission's agenda unless
changed by the Commission by its own action or on appeal. Any
person may, within the 14 day period, appeal the interpretation
to the Commission. If such appeal is filed, it is required to be
heard within 60 days. Any action of the Commission on
interpretations may be appealed to the City Council. In this
case, an appeal has been filed and a final determination on the
interpretation may be made by the City Council.
Budget/Financial Impact
The recommendation of this report would not have budget or
financial impacts. A contrary conclusion could have an unknown
financial impact on the City by making unuseable, except at
considerable expense, buildings which do not meet current parking
standards.
Recommendation
It is respectfully recommended that the City Council reject the
appeal, and adopt the Planning Commission's interpretation that
Section 9044.3(e) applies when the change of use involves a new
use with a higher parking requirement than the former use.
Prepared by: Paul V. Berlant, LUTM Director
D. Kenyon Webster, Acting Zoning Administrator
Exhibit A: Municipal Code Section 9044.3(e)
Exhibit B: December 29, 1998 Principal Planner Memorandum
Exhibit C: Municipal Code Section 9080.4(d)(3)
Exhibit D: August 12, 1992 City Attorney Opinion
Exhibit E: August 26, 1992 Appeal
Exhibit F: August 19, 1992 Letter from Donald Nelson
Exhibit G: August 17, 1992 Letter from Christopher Harding
Exhibit H: Planning Commission Minutes, August 19, 1992