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Resolution 12751CITY OF ALAMEDA RESOLUTION NO. 12751 UPHOLDING THE PLANNING BOARDS'S DECISION THAT THE SUBMITTAL FOR CONSTRUCTION OF A FOURPLEX IN THE MIDDLE OF THE TENNIS COURT AREA LOCATED AT 1514, 1516 AND 1518 BROADWAY IS SUBSTANTIALLY IDENTICAL TO A 1986 PROPOSAL OF A TRIPLEX ON THIS PARCEL AND THAT NO NEW DECISION WILL BE MADE ON THIS PROPOSAL WHEREAS, an application was made on November 14, 1995 requesting zoning compliance determination regarding the proposed construction of a fourplex on the existing tennis courts located at 1514, 1516, and 1518 Broadway; and WHEREAS, the subject property is designated Medium Density Residential on the General Plan Diagram; and WHEREAS, the subject property is located in a R-4 (Neighborhood Residential) Zoning District; and WHEREAS, On December 18, 1995 the Planning Director provided a written determination that construction of the fourplex in the middle of the tennis courts is substantially identical to a 1986 proposal of a triplex on this parcel and that no new decision would be made; and WHEREAS, On December 28, 1996, the applicant appealed the Planning Director's determination; and WHEREAS, the Planning Board held a public hearing on this application on February 5, 1996, and examined pertinent maps, drawings, and documents; and WHEREAS, On February 5, 1996, the Planning Board unanimously upheld the Planning Director's decision that the proposal for construction of a fourplex in the middle of the tennis court area located at 1514, 1516 and 1518 Broadway is substantially identical to a 1986 proposal of a triplex on this parcel and that no new decision will be made; and WHEREAS, On February 8, 1996 the applicant filed an appeal of the Planning Board's decision; and WHEREAS, the City Council held a public hearing on March 19, 1996, heard all public testimony, considered all pertinent information and concurs in the findings of the Planning Board's Decision; and WHEREAS, the City Council has consideretl the appellant's bases of appeal as contained in a letter dated January 19, 1996 from Joseph Wood on behalf of Edward Murphy, each of which is set out in bold in the following paragraphs and the City Council makes the following findings regarding each basis of appeal; a) Mr. Murphy has applied for a determination that his proposed development is in compliance with zoning requirements. It is unclear whether the Planning Director has, in her present decision: (1) refused to process that application on the grounds that it is "substantially identical" to a prior already determined application; (2) processed that application and denied it; or (3) done something different from either of those two things. the Planning Director should be required to clarify the nature and effect of her present decision. b) If the Planning Director has refused to process Mr. Murphy's application, the Planning Director and the Planning Department have violated their statutory duty to process, and accept or reject on the merits, any application for a determination of zoning compliance for which, like the application in question, proper forms have been filled out and proper fees have been paid. The appellant is correct that generally the Planning Department must process any application that is properly filed with the City, even though the Planning Director may believe that the application will ultimately be denied on its merits. The key issue here is that a project can be evaluated on its merits and that there is a possibility that the project can be approved. This is not the case with the project proposal submitted by Mr. Murphy. Because Murphy's proposal does not comply with Measure A, it cannot be in compliance with the City of Alameda City Charter. Mr. Murphy was so advised in 1986 by the then Planning Director (See Attachment # 9). The Planning Director in 1986 determined that no multiple dwelling structure could be constructed on this property, whether the multiple dwelling structure was a triplex or some greater number of dwelling units. The current proposal which is the subject of appeal, is in essence the same proposal which was rejected in 1986. Furthermore, the Planning Director's decision is not an issue of judgement, but one of interpretation of the Municipal Code and the applicant/appellant does not assert in the appeal that the application can be found consistent with Measure A. It is not reasonable that the City must accept and process repetitious applications that are clearly inconsistent with the City's regulations and cannot be revised to comply. c) If the Planning Director has processed Mr. Murphy's application and denied it, the Planning Director has arbitrarily and unreasonably deprived Mr. Murphy of the use of his property, in that: (1) The 1986 decision of the prior Planning Director has no legal effect on the present application, because applicable law has 2 since 1986 changed in a manner requiring the City of Alameda to make a factual showing of necessity that it has never made and cannot make; (2) the project in question is in any event not the same project proposed in 1986; (3) the phrase "substantially identical," on which the Planning Director seeks to rely, is vague and arbitrary, both on its face and as applied to Mr. Murphy's application; and The applicant asserts that since the 1986 Planning Director's decision applicable law has changed in such a manner to require the City to make a factual showing of necessity before rejecting a development proposal. This is simply untrue. The law that the applicant asserts has changed is Evidence Code Section 669.5. However, this section is only applicable to a judicial proceeding and only relates to the presentation of evidence at a trial. It has no application to the matters under consideration here. The Planning Director continues to support the 1986 decision. In 1986, the applicant proposed the demolition of two residential structures located at 2611 and 2615 Santa Clara Avenue and an accessory building located at 2617 Santa Clara Avenue to accommodate construction of a triplex. The Planning Director has found this Zoning Determination to be substantially the same to the 1986 proposal for the following reasons: 1) Both projects were proposed to be developed on parcel held by the applicant; and 2) Both applications involve the construction of dwellings in contravention to Measure A. the same multiple Because of these identical aspects of the proposal, the Planning Director determined that the application is substantially the same as the 1986 request which the Planning Director denied in 1986. Furthermore, Mr. Murphy's assertion that we denied his application is incorrect. A request for a zoning compliance, determination provides an opportunity for the Planning Director to give an interpretation of the Alameda Municipal Code and give the applicant information about the compliance of a proposal with zoning regulations. The determination, "substantially identical" is not vague and arbitrary. Mr. Murphy and his attorney freely admit that they are attempting to establish standing to refile the legal challenges to Measure A (Charter provision 26-1) . They are seeking a new decision to provide that standing. They are not seeking information about a proposed project that is not already provided by the 1986 Planning Director determination. This property owner, Edward Murphy, for the parcels located at 1514-1518 Broadway and 2609-2619 Santa Clara Avenue, also known as Assessor Parcel # 70- 156-44-4, has been advised that multiple units could not be 3 permitted. The proposal is identical in all pertinent facts - same property owner, same property, same proposal to construct multiple units. (d) The provisions of the Alameda Zoning Ordinance relied upon by the Planning Director in denying Mr. Murphy's application herein, were and are illegal and unenforceable, both on their face and as applied to Mr. Murphy. The applicant has not demonstrated that the provisions of the Alameda Zoning Ordinance is illegal and unenforceable. That type of determination is the purview of the courts. WHEREAS, the City Council has considered the appellant's bases of appeal as contained in a letter from Mr. Murphy dated February 8, 1996, each of which is set out in bold in the following paragraphs and the City Council makes the following findings regarding each basis of appeal; 1) The Planning Board abrogated its responsibility to require that the Planning Director afford me the same treatment as she would afford any other applicant seeking to build on his property. I am being singled out both for having once challenged the validity of Measure A and also for intending to challenge it again. The Planning Director is discriminating against me for doing what I, as an American citizen, have an absolute right to do. Mr. Murphy's assertion that the Planning Board did not meet its responsibility when they upheld the Planning Director's determinations and that the Planning Director is discriminating against Mr. Murphy for previous and present actions is incorrect. The purpose of a Zoning Compliance Determination is to provide written information and interpretation of zoning provisions in response to a written request. Mr. Murphy did receive a response to his Zoning Compliance Determination and has been clearly advised that the 1986 Planning Director's determination that multiple dwelling units could not be approved still applies and that it applies to the proposal to construct a fourplex. 2) Much reference has been made to the former Planning Director, Arnold B. Jonas. The record clearly shows that Mr. Jonas did not create special planning department rules which applied only to Ed Murphy. And Carter Stroud, who was the Alameda City Attorney in 1986, did nothing to restrict my right to challenge Measure A in the courts. Neither of them would have sanctioned the type of treatment that I am currently receiving. The present Planning Director and, obviously the present City Attorney, have a far different view of how the City laws should be defended. In their view, to violate a citizen's rights is acceptable means of defending Measure A. And that's exactly what is taking place. 4 Mr. Murphy's assertion that the City has violated his rights as a citizen is not correct. Mr. Murphy requested a Zoning Compliance Determination and has been given an interpretation by the Planning Director. The issue is that Mr. Murphy is not seeking information about his proposed project but is seeking a new decision to provide legal standing with respect to Measure A. 3) The Planning Director has put great reliance on the term "substantially identical". She is using it as a standard to judge my building applications. "Substantially identical" is no standard at all. It is pure sophistry. The Planning Director refuses to clarify it because it can not be clarified. By her reasoning a fourplex is substantially identical to a triplex though it contains one more dwelling unit. If we extend the reasoning, a triplex would be considered substantially identical to a duplex and finally a duplex to a single. Measure A itself would be a ban on the construction of certain structures that were substantially identical to other structures which Measure A allows. There is no justifiable reason to use so ridiculously vague a standard in zoning matters. Citizens of normal intelligence are forced to guess as to its meaning. The Planning Director is using the term "substantially identical" for an unjustifiable reason. She wishes to obfuscate the issues raised in a simple application to build a triplex so that she can refuse to process it and thereby make the task of challenging Measure Amore difficult. Obfuscation is often effective in the short run, but obfuscation is not part of the due process to which citizens are entitled. The Planning Director clearly states the basis for her finding of substantially identical as set out in response to Basis of appeal (c) of this resolution. 4) I challenge the Planning Director to find one application, other than mine, which she has refused to process because it was substantially identical to some other application. I also challenge the Planning Director to make known the occasion when she first used the term in dealing with an application, and to reveal one instance of someone, other than me, being charged for an application the director had refused to process. The Planning Director has not refused to process the appellant's application. The Planning Director has provided a written determination in response to the applicant's request for a zoning compliance determination. 5) Members of the Planning Department staff at the behest of their director, have deliberately misinformed me as to what I could expect from filing various applications. I made it perfectly clear from the beginning that I wanted to build one or more multiple dwelling units on my property and that I believed I had a legal right to do so. I made it equally clear that I wanted any application I was paying for to be processed and, when processed, 5 to result in either a definitive "Yes, current Alameda law allows you to build your triplex" or "No, it does-not." The applicant is incorrect. Upon original request by the appellant to process a development request, staff met with his attorney and provided him with all the necessary forms and regulations with respect to Mr. Murphy's property. Once the materials were submitted staff found the application materials to be incomplete. Mr. Murphy was then notified at which time he informed staff that he had no intention of actually building the project. Staff informed Mr. Murphy there was a mechanism to receive a determination from the Planning Director as to whether or not a particular proposal meets Municipal Code requirements through the Zoning Compliance Determination application which would not require the submission of all necessary development plans required for Design Review. Subsequently, Mr. Murphy withdrew his Preliminary Design Review application and applied for several Zoning Compliance Determinations. 6) Firstly, I was advised by staff to file a "major design review" application for a triplex. After considerable time and expense, I filed the application. The Planning Director refused to process it, something I believe staff knew would happen from the outset. Then staff advised me to file using the zoning compliance determination format. I have, to date, submitted two such applications. The Planning Director refused to process one of them and maintained that refusing to process was not a denial of the application. Whatever a refusal to process means, it either means "current law allows you to build your triplex" or "current law does not allow you to build a triplex." The Planning Director did not refuse to process a Zoning Compliance Determination and did provide a written response in a letter dated December 18, 1995. 7) The Planning Director did process the second zoning compliance determination application but refused to answer whether the processing constituted a denial of the application to build, in other words, refused to clearly state, "Current law does not allow you to build your triplex, (in this case, a fourplex)". I have received what amounts to a run-around, and staff has been party to it. The Planning Director's responsibility is to provide information and interpretation, which she has done. It is not to assist Mr. Murphy in establishing a basis for a new lawsuit. 8) Now staff is advising me to file a preliminary design review application, or a building permit application, or a preliminary major design review application. When will the City Council say that enough is enough. It is a misguided legal strategy to attempt to protect Measure A by denying a person equal treatment under the 6 law. In the final analysis Measure A will stand or fall on the basis of well reasoned argument, not chicanery. The Planning Director is not aware of any additional direction provided to Mr. Murphy for filing of his proposals. NOW, THEREFORE, BE IT RESOLVED that the City Council upholds the Planning Board's decision that the submittal for construction of a fourplex in the middle of the tennis court area located at 1514, 1516 and 1518 Broadway is substantially identical to a 1986 proposal of a triplex on this parcel and that no new decision will be made on this proposal. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the 19th day of March , 1996, by the following vote to wit: AYES: NOES: ABSENT: Councilmembers Arnerich, DeWitt, Lucas, Mannix and President Appezzato - 5. None. None. ABSENTENTIONS: None. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 20th day of March , 1996. /fre Diane . Felsch, City Clerk City of Alameda