Resolution 12752CITY OF ALAMEDA RESOLUTION NO. 12752
UPHOLDING THE PLANNING BOARD'S DETERMINATION THAT THE
DEMOLITION OF AN EXISTING FOURPLEX AND THE PROPOSED
CONSTRUCTION OF A NEW FOURPLEX IS NOT IN COMPLIANCE WITH THE
ALAMEDA MUNICIPAL CODE
WHEREAS, an application was made on November 15, 1995
requesting Zoning Compliance Determination regarding the proposed
demolition of an existing fourplex and reconstruction of a fourplex
at 1514 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 demolition of a fourplex and
construction of a new fourplex is not in compliance with the
Municipal Code with respect to reconstruction of multiple
dwellings; and
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,.., WHEREAS, On December 28, 1995, the applicant appealed the
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Planning Director's determinations; and
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WHEREAS, the Planning Board held a public hearing on this
application on February 5, 1996, and examined pertinent maps,
drawings, and documents; and
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WHEREAS, On February 5, 1996, the Planning Board unanimously
upheld the Planning Director's decision that the demolition of an
existing fourplex and proposed construction of a new fourplex is
not in compliance with the Alameda Municipal Code; and
WHEREAS, On February 8, 1996, Mr. Murphy submitted 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, and considered all pertinent
information; and
WHEREAS, the City Council has considered 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;
1) The provisions of the Alameda Zoning Ordinance restricting
construction of any structure having more than two living units are
illegal and unenforceable, both on their face and as applied to Mr.
Murphy;
2) Those provisions cannot be applied in the absence of a factual
showing of necessity by the City of Alameda that the City has not
made and cannot make;
The appellant asserts that the Planning Department must determine
the legality of ordinances and provide factual basis to
substantiate the legality of the provisions limiting a structure to
2 units.
The appellant is incorrect about the responsibilities of the
Planning Director to provide the substantiation of the legality of
the zoning provisions as part of the decision on a permit
application. The Planning Director assumes adopted City ordinances
are valid and does not question City ordinances each time they are
applied as part of permit review because it would lead to a time
consuming and unproductive process. The applicant/appellant has
available other avenues which provide for the exercise of a
challenge to the legality of the ordinances. Such avenues do not
include that the Planning Department process repetitious
applications for projects that cannot be approved but that Mr.
Murphy may pursue appeals to the Planning Board, City Council and,
ultimately, to the courts. Mr. Murphy has already exercised such
avenues following the 1986 determination of the Planning Director
regarding the triplex proposal. The fact that he did not conclude
that process to his satisfaction is not a reason why the City
should undertake a second review of a question asked and answered.
3) There is no rational basis for the distinction between a
fourplex demolished by an earthquake and rebuilt to present seismic
standards, on the one hand, and a fourplex demolished by the owner
and rebuilt to present seismic standards, on the other; and
4) The provision of the Alameda Zoning Ordinance purporting to
create that distinction were in any event illegally promulgated by
the Alameda City Council and can have no legal effect.
The appellant is incorrect. There is rational basis for a
distinction between replacement of a fourplex destroyed by
earthquake and a fourplex destroyed by its owner. A planned
reinvestment of property such as a voluntary demolition and
reconstruction can be developed in compliance with the Alameda
Zoning Ordinance. Absent an ability to reconstruct noncomplying
multiple units which have been destroyed by earthquakes or other
natural disasters would make it impossible or difficult to insure
such properties resulting in the value of the property being
greatly diminished. Provisions allowing reconstruction allow such
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existing developments to retain value and encourage their owners to
reinvest in them and maintain them. The distinction between
permitting reconstruction of a structure to its current state which
was accidentally damaged versus redevelopment of a property which
has been voluntarily demolished is common for most jurisdictions.
NOW, THEREFORE, BE IT RESOLVED that the City Council uphold's
the Planning Board's decision to deny the appeal filed by Edward
Murphy and upholds the Planning Director's determinations.
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: Councilmembers Arnerich, DeWitt, Lucas,
Mannix and President Appezzato - 5.
NOES: None.
ABSENT: 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.
Di ne B. Felsch, City Clerk
City of Alameda