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HomeMy WebLinkAboutStaff Report 2303-108011.PUBLIC HEARING / QUASI-JUDICIAL. 2147 Yale Street [22PLN-00374]: Recommendation on Applicant’s Request for a Preliminary Parcel Map with Exceptions to Divide an Existing 5,770 Square Foot Parcel Into two Approximately 2,885 Square Foot lots, smaller than the minimum allowed by the Zoning Code. No changes are proposed to the existing residences. Environmental Assessment: Exempt per CEQA 15301. Zoning District: RND (NP) Two Unit Multiple-Family Residential District, Neighborhood Preservation Overlay. City Council Staff Report From: City Manager Report Type: ACTION ITEMS Lead Department: Planning and Development Services Meeting Date: May 1, 2023 Report #:2303-1080 TITLE PUBLIC HEARING / QUASI-JUDICIAL. 2147 Yale Street [22PLN-00374]: Denial of a Request for a Preliminary Parcel Map with Exceptions to Divide an Existing 5,770 Square Foot Parcel Into two Approximately 2,885 Square Foot Lots. Environmental Assessment: Exempt Pursuant to CEQA Guidelines 15270 and 15301. RECOMMENDATION It is recommended the City Council take the following action(s): 1. Deny the proposed project based on findings in Attachment C. EXECUTIVE SUMMARY The applicant requests approval of a preliminary parcel map with exceptions to subdivide one conforming property into two substandard lots. The property is zoned Two-Unit Multi-Family Residential with a Neighborhood Preservation Combining District, or RMD (NP). The existing development was constructed in 2010 with two detached single family homes in accordance with local zoning standards. The zoning regulations for this district permit a two-family development under single ownership. Based on this provision, the site cannot be converted into a condominium subdivision or the individual units sold separately. The current owners hold the property as a tenancy in common. This means the site is under shared ownership but restrictive agreements delineate which parties have access to each of the homes. Tenancy in common is an atypical ownership structure in Palo Alto but very common in San Francisco and some other jurisdictions. The applicant reports financing challenges associated with this type of ownership model and therefore seeks approval to split the property with one home on each lot that can be sold independently. Further, the applicant asserts the underlying lot configuration or tract map for this neighborhood created in the year 1891 shows there are two lots for this site and that the City’s approval of the project in 2007 (under address 586 College Avenue) was predicated on an error that the owner seeks to remedy with the subject application. Staff’s review of the administrative record finds the applicant’s reliance on the underlying tract map as justification to support the request is not valid based on the provisions of the state Subdivision Map Act and is not supported by California Supreme Court case law. Moreover, staff does not find any City errors associated with the project approved in 2007. BACKGROUND The applicant proposes to subdivide an existing 5,770 square foot lot with two dwelling units into two 2,885 square foot lots with one dwelling unit on each lot. The existing lot is zoned RMD (NP) which is intended to minimize incentives to replace existing single-family dwellings, maintain existing neighborhood character and increase the variety of housing opportunities available within the community. The existing lot and uses conform to the City’s standards for minimum lot size, development standards and permitted uses. The proposed new lots would not comply with the City’s standards for minimum lot width, depth or area. Additionally, the new lot lines would render the existing buildings nonconforming with respect to floor area (due to the smaller lot size) and setbacks (due to the changed distance of the existing structures to new property lines). It is staff’s understanding that one of the reasons the applicant is requesting this change is to address financial challenges experienced by the owners of the property, specifically transactional and financing. While the underlying zoning for the subject property permits two residential units, these units must remain in common ownership and cannot be sold individually. The ownership structure for the subject property is one that is held in a tenancy in common. A tenancy in common is a legal form of ownership where two or more individuals have an undivided ownership interest in the property. Ownership interests may be transferred or sold without the consent of the other tenant in common. The City has no role in the formation of a tenancy in common and cannot prohibit this ownership structure. The City can and does regulate conversions of three or more rental units on a lot to ownership housing, but that regulatory framework is not relevant in this instance. Tenancy in common is not an ownership structure typically seen in Palo Alto but it does exist in San Francisco and elsewhere. Given the infrequency of tenancy in common in Palo Alto, the applicant reports there is only one lender willing to provide financing options for this ownership model, which impacts lending costs. Another reason the applicant requests the change is to address a reported aversion buyers have about taking on a 50% undivided interest in a property with someone unfamiliar to the buyer and associated concerns about liability exposure for the neighboring owner. The applicant argues that the requested subdivision should be granted because it would be allowed under SB 9 if the property were zoned R-1. This property, however, is zoned RMD (NP) and not subject to state legislation or local implementation of SB 9. The Policy Implications section of the staff report expands upon this idea but for the purposes of the subject application, SB 9 is not relevant to the Council’s decision on this project. The applicant also asserts that the subdivision should be allowed due to the existence of an 1891 map showing the property divided into two parcels. Many of the lots in College Terrace have legal descriptions based on the 1891 map of the neighborhood showing numerous 25x115 parcels. This may contribute to a perception that the 1891 map created legally recognizable lots that are 25 feet wide. However, because the 1891 map predated the first Subdivision Map Act in California, it was not subject to approval by a government entity and does not, by itself, result in legal lots. Under relevant caselaw, lots shown on an antiquated map are only recognized when the lots have been separately conveyed to a purchaser. Most lots in College Terrace have not been conveyed as separate, 25-foot wide lots and very few exist in that configuration today. College Terrace contains 76 parcels zoned RMD (NP), not including an additional four parcels which currently contain condominiums. Of these 76, only 3 match the 1891 map’s 25 x 115 original dimensions. The majority contain two or more of the lots shown on the 1891 map, and many deviate from the map’s original lot lines entirely. In the case of 2147-49 Yale, the legal description describes the lot as being comprised of Lots 1 and 2 of Block 48 in the original map. However, there is no evidence that Lot 1 or Lot 2 of Block 48 was ever conveyed as a separate parcel. Without this evidence, the applicant’s argument about pre-existing lots is unfounded and cannot be relied upon to make a decision on the requested preliminary parcel map with exceptions. The applicant further asserts, based on the two lot argument above, that the City erred in its approval of the project in 2007. Staff has reviewed the administrative record and finds no error in the processing of the prior application. The subject property complies with all applicable development standards and minimum lot size requirements. As this argument is predicated on the unsubstantiated idea that subject property consists of two lots, staff is not able to validate the applicant’s claim the original permit was issued in error. Planning and Transportation Commission The subject project was presented to the Planning and Transportation Commission (PTC) on February 22, 2023. Staff recommended denial of the application because the proposed subdivision would result in the creation of two substandard lots and because the required findings for exceptions to minimum lot dimensions cannot be made. The PTC gave a recommendation of denial, in keeping with the staff recommendation. The PTC also gave guidance on modifying the Findings to better represent their views. The proposed findings (Attachment C) have been modified according to the PTC motion. The zoning compliance table (Attachment B) was also modified to correct minor typos. It is worth noting the PTC had a thorough and thoughtful discussion regarding the subject findings. Commissioners understood and appreciated the challenges associated with the tenancy in common and some considered this a compelling argument when making the required findings. However, as discussed below, the inability to make all required findings requires the project to be denied. The summary discussion of the PTC’s deliberation is available online: https://www.cityofpaloalto.org/files/assets/public/agendas-minutes-reports/agendas- minutes/planning-and-transportation-commission/2023/ptc-2.22.2023-summary- minutes.pdf#page=2. ANALYSIS A decision on a preliminary parcel map is subject to required findings. The municipal code requires the legislative body to deny the preliminary parcel map if it makes a finding that the map is inconsistent with the comprehensive plan; is not physically suitable for the type or density of the development; would likely cause substantial environmental damage or serious public health problems; or, conflict with easements. For the most part, staff and the PTC were able to make all but one of the preliminary parcel map findings. The finding that was not supported related to the suitability of development and a determination that the reduced lot area would render both homes non-compliant with respect to the maximum floor area ratio. By subdividing the one conforming lot into two substandard lots the total lot area dedicated to each home is less which would require a smaller building. The degree of variation, however, is relatively minor, approximately three percent over the standard. In addition to the floor area ratio, the new property line boundaries would result in the existing buildings being non-conforming for setback distances between the home and adjacent property lines. Because the subdivision proposes to create lots that do not comply with minimum lot area or lot dimensions, additional project findings, or exception findings are required. These findings require the legislative body to deny the project if it fails to make any of the following findings: 1. There are special circumstances or conditions affecting the property; 2. The exception is necessary for the preservation and enjoyment of a substantial property right of the petitioner; 3. The granting of the exception will not be detrimental to the public welfare or injurious to other property in the territory in which the property is located; or 4. The granting of the exception will not violate the requirements, goals, policies, or spirit of the law. The PTC was not able to make Findings 2 or 4. Specifically, the exception is not required for the preservation and enjoyment of the property as the petitioner retains the same rights and ability to sell their ownership interest in the property with or without the map. Moreover, the granting of the exception would conflict with established, objective zoning standard that regulates floor area and setbacks and rendering the now conforming homes as non-conforming with respect to those development standards. Attachment C includes draft findings for the City Council’s consideration. The applicant has also provided information in support of the required findings, which can be found in Attachment G. Staff and the PTC recommend the City Council deny the applicant’s request for the reasons provided in this report and supporting material. The City Council in its review, however, may, based on revised findings, reach a different conclusion. Staff is concerned that if the project is approved, it could set a precedent for other property owners to form tenancy in common ownership structures and subsequently seek preliminary parcel map exceptions similar to the subject application. If the Council were inclined to support the applicant’s request but cannot support the required findings, the following section provides some alternatives to consider. POLICY IMPLICATIONS While staff believe the subject application should be denied based on the City’s current regulatory standard, staff note that it does raise an important policy question regarding the role of the R-2 and RMD zone districts given the state ADU law and SB 9. While these two-family zones are intended to provide increased density over R-1 and a transition between R-1 and multifamily zones, they have arguably been surpassed by single-family zones in development potential as a result of recent state laws. The City Council may wish to consider, as part of a separate agenda item, rezoning of the RMD parcels in College Terrace to R-1, which would permit the applicants to achieve their goal. Alternatively, the Council may consider changing the zoning regulations for the R-2 or RMD districts to enable small lot subdivision and separate ownership similar to the applicant’s request. This policy may encourage redevelopment of these parcels for two-unit condominium or townhouse style development that can serve as starter homes and an opportunity to build equity. A third consideration is to consider up-zoning the R-2 and RMD districts to allow somewhat more density than can be achieved today. Again, any direction the City Council may want to give staff would need to be part of a separate agenda item and balanced with other work plan assignments recently approved the City Council. STAKEHOLDER ENGAGEMENT Prior to the PTC meeting, one neighbor has provided written comment expressing that she does not support the subdivision application. Prior correspondence is included in Attachment D. ENVIRONMENTAL REVIEW The subject project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the City. Specifically, the project is statutorily exempt from CEQA per Guideline 15270 (Projects Which Are Disapproved) and categorically exempt per Guideline 15301 (Existing Facilities). ATTACHMENTS Attachment A: 2147 Yale Location Map Attachment B: Zoning Comparison Table Attachment C: Denial Findings Attachment D: BEP0121 College Terrace County Recorded Map Attachment E: Project Plans Attachment F: Neighbor Comments Attachment G: Applicant‘s Memo APPROVED BY: Jonathan Lait, Planning and Development Services Director 137-01-125 137-01-104 137-01-102 137-01-103 137-01-034 137-01-035137-01-146 137-01-147 137 01 152 137-01-007 137-01-049 137-01-031 137-01-042 137-01-039 137-01-043 137-01-044 137-01-048 137-01-047 137-01-046 137-01-045 137-01-134 137-01-133 137-36-001 137-36-002 137-36-003 137-36-004 137-36-005 137-36-006 137-36-007 137-01-065 137-36-008 137-01-036 137-01-101 137-01-037 137-01-038 COLLEGE AVENUESTREET STAUNTON COURTOXFORD AVENUE 560 560 552 552 550 550 2172 2172 57 599 2270 2 2251 174 2110 2130 2130 560 570 2135 2139 580 580 2170 2170 2145 2145 2111 2111 589 589 587 587 575 575 2130 2130 2166 2152 2152- 2166 615 615 642 640 638 636 634 634- 642664 664 668 6682175 2175 2179 2179 2145 2145- 2153 2153 22111 657 657- 665 2264 659 666 2177 2147 2149 2151 2253 2255 2147 2147 564 564- 572 643 643 645 645 2260 2260 2262 2100 82 580 2095 95 2123 2178 2178 2172 2172 2166 2166 2160 2160 2150 2150 2140 2140 2139 2139 2133 2133 572 570 2164 2162 2160 2158 2156 2154 2137 2149 2149 545 545 555 555 PC-5069 This map is a product of the City of Palo Alto GIS This document is a graphic representation only of best available sources. Legend Assessment Parcel Palo Alto Assessment Parcel Palo Alto Assessment Parcel Outside Palo Alto abc Road Centerline Small Text (TC) Curb Face (RF) Pavement Edge (RF) abc Address Label (AP) Current Features abc Zone District Labels Zone Districts 0' 46' Attachment A: Location Map 2147 Yale CITY OF PALO ALTOINCORPORATED CAL I F ORN I A P a l o A l t o T h e C i t y o f AP R I L 1 6 1 8 9 4 The City of Palo Alto assumes no responsibility for any errors. ©1989 to 2016 City of Palo Alto efoley2, 2023-01-05 13:11:04 (\\cc-maps\Encompass\Admin\Personal\Planning.mdb) ATTACHMENT B ZONING COMPARISON TABLE 2147-2149 Yale Street, 22PLN-00374 Table 1: COMPARISON WITH CHAPTER 18.12 (RMD DISTRICT) Regulation Required/Allowable Existing Proposed Parcel 1 (2147 Yale) Proposed Parcel 2 (2149 Yale) Minimum/Maximum Site Area 5,000-9,999 sf 5,770 sf Non-conforming: 2,885 sf Non-conforming: 2,885 sf Minimum/Maximum Site Width (1) 6 6 50 feet 50.15 feet wide along College Ave. 57.53 feet wide along Yale St. 50.15 feet wide along College Ave. Minimum/Maximum Site Depth FD 100 feet 115.03 feet wide along Yale St. Non-conforming: 50.15 feet deep Non-conforming: 57.50 feet long along Yale St. Residential Density Two-Family use, under one ownership* Two units One unit One unit Front Setback 20 feet 20 feet 20 feet Non-conforming: 16 feet Interior Side Setback 6 feet 6 feet 6 feet Non-conforming: 3.6 feet right side 20 feet left side Street Side Setback 16 feet 16 feet 16 feet N/A Rear Setback 20 feet 20 feet Non-conforming: 3.2 feet Non-conforming: 6 feet Maximum Lot Coverage 40% 2,308 sf 33% 1,891 sf 32.77% 945.45 sf 32.77% 945.45 sf Maximum Floor Area 50% plus 200 sf for purposes of providing one required covered parking space (two- family use only, not applicable to single family) 3,085 sf 3,075 sf Non-conforming: 53.29% 1,537.5 sf Buildable: 50% 1,442.5 sf Non-conforming: 53.29% 1,537.5 sf Buildable: 50% 1,442.5 sf Maximum Height 35 Two stories Non-conforming: two stories Allowable: one story Non-conforming: two stories Allowable: one story * Note SB 9 does not apply in the RMD zoning district Table 2: CONFORMANCE WITH SECTION 18.10.060 and CHAPTER 18.52 (Off-Street Parking) for Two-Family RMD Use Type Required Existing Proposed 2147 Yale Proposed 2149 Yale Vehicle Parking Two Family 3 spaces total, of which at least two must be covered 3 spaces total: 2 covered spaces (1 assigned to each unit), plus 1 uncovered shared space N/A N/A Vehicle Parking Single Family Two spaces per unit, one of which must be covered N/A Non-conforming: 1 covered space only Non-conforming: 1 covered space only 1 ATTACHMENT C FINDINGS FOR APPROVAL 2147 Yale Street 22PLN-00374 Preliminary Parcel Map Findings A legislative body of a city shall deny approval of a Preliminary Parcel Map with Exceptions, if it makes any of the following findings (CGC Section 66474): 1. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451: The site does not lie within a specific plan area and is consistent with the provisions of the Comprehensive Plan as noted below. 2. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans: Staff is not able to identify any Comprehensive Plan policies or Programs directly relevant to the subject application. The existing structures and uses are consistent with the Comprehensive Plan and are not proposed to change. Therefore, staff recommends finding that on balance, the project is consistent with the policies in the Comprehensive Plan. 3. That the site is not physically suitable for the type of development: No change to the existing development is proposed, however by re-orienting the property lines, the existing building setbacks become non-conforming. The rear setback for the proposed 2147 Yale property would be 3.2 ft where 20 ft is usually required. For the proposed 2149 Yale property, the front setback would be 16 ft where 20 ft is usually required, the side setback would be 3.6 ft where 6 is required, and the rear would be 6ft where 20 ft is required. The existing lightwells would become non-conforming as well. Additionally both proposed lots would exceed allowable FAR by approximately 3%. The two created lots would not meet the minimum lot size requirement of 5,000 sf and would be considered substandard. As a result of these non-conformities, the proposed lots are not physically suitable for the houses in comparison to the existing lot. 4. That the site is not physically suitable for the proposed density of development: The subdivision application for the site will not change the existing residential density of two units. 2 5. That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat: The minor subdivision will not cause environmental damage or injure fish, wildlife, or their habitat. The project site has been fully urbanized and developed and is centrally located within the College Terrace neighborhood. There is no recognized sensitive wildlife or habitat in the project vicinity. 6. That the design of the subdivision or type of improvements is likely to cause serious public health problems: The creation of two individual parcels will not cause serious public health problems, as it does not substantially affect the existing conditions and overall function of the property as a site for single-family residences. 7. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision. It may be possible to retain the existing uncovered parking space by requiring an access easement between the two properties, however this is not currently part of the proposal. SECTION 5. Exception Findings. A legislative body of a city shall deny approval of a Preliminary Parcel Map with Exceptions, if it fails to make any of the following findings (PAMC 21.32.020): 1. There are special circumstances or conditions affecting the property. The existing property is a typical size for the RMD (NP) zoning district, and contains the allowed use of two-family use under one ownership. While the tenancy-in-common is not the most typical ownership arrangement, it is a private matter outside of the scope of the Zoning Code and does not constitute a special circumstance. The special circumstance in this case is that the houses already exist, so the setbacks are 3 unable to be changed compared to a subdivision application for new construction. 2. The exception is necessary for the preservation and enjoyment of a substantial property right of the petitioner. No property rights are affected by the current arrangement, as either or both sellers may sell their share of the property. Therefore, no property rights are preserved or recovered by subdividing. 3. The granting of the exception will not be detrimental to the public welfare or injurious to other property in the territory in which the property is situated. The use of the property would not be changing, and therefore will not be detrimental to the public welfare or injurious to other properties in the area. 4. The granting of the exception will not violate the requirements, goals, policies, or spirit of the law. Granting this exception would create violations of the Zoning Code for required setbacks and FAR, and render the existing units non-conforming. Furthermore, the permitted use of two-family use under one ownership was developed to allow and encourage this type of development. Allowing the requested exception would violate the spirit of the law by setting a precedent for other RMD-zoned properties with this land use and/or tenancy-in- common arrangement, as well as potentially discouraging similar projects from being built in the future. Attachment E Project Plans In order to reduce paper consumption, a limited number of hard copy project plans are provided to Commissioners for their review. The same plans are available to the public, at all hours of the day, via the following online resources. Directions to review Project plans online: 1. Go to: bit.ly/PApendingprojects 2. Scroll down to find “2147 Yale” and click the address link 3. On this project specific webpage you will find a link to the project plans and other important information Direct Link to Project Webpage: https://www.cityofpaloalto.org/News-Articles/Planning-and-Development-Services/2147-Yale- Street 1 Foley, Emily From:Pria Graves <priag@birketthouse.com> Sent:Friday, December 2, 2022 2:57 PM To:Foley, Emily Subject:Application 22PLN-00374, 2147 Yale Street CAUTION: This email originated from outside of the organization. Be cautious of opening attachments and clicking on links.  Dear Emily ‐      I am writing to urge you to deny approval of this request to divide the existing parcel with two Single‐Family Residences  into two lots.     This request is totally inconsistent with the RMD(NP) zoning which explicitly states:               " The RMD two‐unit multiple‐family residence district is intended to allow a second dwelling unit under the same ownership  as the initial dwelling unit on appropriate sites in areas designated for multiple‐family use by the Palo Alto Comprehensive Plan.”     When these two homes were built in 2010, it was made very clear that the entire lot  (parcel 137‐01‐038) was to remain under  one owner.  There was never any provision for subsequent subdivision.     One of the benefits of the RMD zoning is that it allows certain exceptions without requiring the applicant to obtain a variance.  The  original application included a minimum lot size exception and minimum depth exception and I believe that the setback at the rear  of the current structures is also slightly less than required.  Since the project took advantage of these exceptions, it is absurd that the  owners now wish to ignore the RMD zoning requirements that allowed the homes to be built!     This subdivision also may be the beginning of a slippery slope for the City. If this property, explicitly required to remain under one  owner, can be subdivided, what will the City’s answer be when the owners of homes with ADUs apply to subdivide their lots so they  can sell the ADU?  As I say, a slippery slope.     As the long‐time owner of a home in this zoning district, I really do not wish to see the zoning requirements eroded.  It is unfair to  those who choose to comply with the intent of the zoning and wish to retain our moderately dense housing area.     Regards,    Pria Graves  2130 Yale Street           You don't often get email from priag@birketthouse.com. Learn why this is important   Memo HANNA & VAN A1TA To: File — Gelman Griffith From: JPH Date: February 3, 2023 Re: 2147-2149 Yale Street/Response to Planning and Transportation Commission Staff Report The Staff Report begins by describing the project as the proposal to subdivide an existing lot into two lots with one house on each lot. In fact, there are two lots now because the original recorded subdivision map has never been amended and the current legal description of the property is referred to as Lots 1 and 2 in Block 48 of the subdivision map. It is inaccurate to describe the project as a proposal to subdivide an existing lot. The Staff Report also says that the two lots are not legally separate parcels. It is based, they say, on the fact that the lots were created in 1891 before the adoption of the first Subdivision Map Act, and that the lots are "only recognized" if they were separately conveyed, and since these lots were never separately conveyed they are not recognized. The fact remains that, whether the staff or the City recognizes lots as two lots, they are in fact two lots, have been from the beginning and to this day remain two lots. The staff does state that the existing structures and uses are consistent with a comprehensive plan and are consistent with the policies in the comprehensive plan. As the staff indicates, the site is compliant with the zoning code even though, or despite, the fact that the site includes two separate lots which have never been resubdivided, nor merged. The Staff Report says that the two proposed lots would not meet minimum lot size requirements. The two existing lots do not meet minimum lot size requirements and approving the proposed Parcel Map would not change that. The staff reports that both of the proposed lots would exceed the allowable floor area ratio by approximately 3%. Since the approval of the Parcel Map would not physically change anything on the site, if staff is correct about the 3% overage (which I should point out is a minor exception) the same is true of the existing situation, so the approval would not in any way change the existing floor area. T:\WPWIN60\JOHN\MEMOS\Gelman[02 03 23].doc Gelman Griffith February 3, 2023 Page 2 The Staff Report states that if the subdivision were approved that the lots would be out of compliance for parking. If viewed logically and with common sense, the approval of a Parcel Map would not have any effect on parking. The same situation would continue, which is that each parcel has its own garage, and there is one uncovered space which is and can continue to be shared by the two owners. In discussing findings that would result in denial of the approval, staff focuses on finding #3 which is that the site is not physically suitable for the type of development, stating that the two created lots would not meet the minimum lot size requirements. Logic and reasonable interpretation of statutory language would cause one to conclude that this particular finding is directed at a proposed new project. To say that the site is not physically suitable for the type of development is nonsense since the development is there and has been there for a number of years. Staff does agree that the subdivision application will not change the existing residential density, so the finding that the site is not physically suitable for the proposed density cannot be made. Staff also agrees that the design of the subdivision and the existing (rather than proposed) improvements will not cause environmental damage or injure fish wildlife or other habitat. Staff also agrees in connection with finding #6 that the design of the subdivision or the type of improvements is not likely to cause serious public health problems. In connection with finding #7, there is no finding that the approval of the project would conflict with any public easements. Turning to the findings required for exceptions, Staff asserts that special circumstances do not exist and are not necessary to preserve an existing property right. To the contrary, the special circumstances here are there are two existing legally created subdivision lots which are not in compliance with current standards. The current owners are not responsible for this fact. The lots were created a long time ago. The special circumstance is that whoever built these two homes, with the approval of the City, did not build the homes within the existing legal but non -conforming lots, but instead built them in such a way that the boundary line between the two lots bisects each of the two homes. T:\WPWIN60\JOHN\MEMOS\Gelman[02 03 23].doc Gelman Griffith February 3, 2023 Page 3 This is a special circumstance which can easily be created simply by moving the lot line so that it runs between the two homes instead of through the middle of each home. The existing tenancy -in -common agreement is not by any means the vehicle of choice for property ownership. It is dictated by the special circumstance, that being the action taken by the developer of these two homes, with the approval of the City, in failing to build the two homes within the boundaries of the existing subdivision parcels. In fact, the exception is necessary for the enjoyment of a substantial property right which is the right to own your own home and be at liberty to sell and transfer title to your home to a third party without the buyer having to sign on to a tenancy -in -common agreement, with the owner of the adjoining property. The Staff Report says no property rights are affected because either or both sellers may sell their share of the property. As any realtor will tell you, and as your own common sense will tell you, there is a really significant difference in property rights between the right to own and hold title to your own home and owning a half interest in your home and a half interest in your neighbor's home. Staff concludes by saying that the granting of the exception would not be detrimental to public welfare or injurious to other property owners, and that it will not violate the requirements, goals, policies or the spirit of the law. We do of course agree with that, but take exception to the staff conclusion that granting the exception would render the existing units non- conforming. The fact is that the existing situation is non -conforming and the moving of the lot line would not create any additional non -conformity, but would merely improve the existing situation without causing any detriment. The statement in the Staff Report which asserts that granting the exception would act against the City's goals to build more housing and increase density in lower density residential neighborhoods is simply wrong. It would do nothing of the sort. When the owners first approached the City staff with the proposal to take advantage of SB-9, which would enable them to create two legal lots, they were informed by the City staff that SB-9 is applicable only in single-family residential districts, and does not apply in the RMD (NP) zone. They were advised to apply for a Preliminary Parcel Map with exceptions. The original developer of the project acquired title to the parcel in an auction sale in 2010. The development ignored the boundary lien between the two lots and marketed the T:\WPWIN60\JOHN\MEMOS\Gelman[02 03 23].doc Gelman Griffith February 3, 2023 Page 4 two homes as separate single-family homes. The homes were first sold in 2011 and a tenancy -in -common agreement was entered into between the two owners. In the recent past, at least six buyers have made offers to purchase 2147 Yale Street, but in each case they refused to complete the sale because of the tenancy -in -common structure. In addition, a concern about the neighbors sharing a 50% interest in the home created a problem with lenders, most of whom were unwilling to work with tenancy -in - common properties. To say that in an R-1 District a lot can be divided into two parcels to allow two homes to be built and be separately owned, but that within the RMD District (which allows two separate single-family residences) separate ownership of each residence is not allowed, does not make any sense. This is particularly so here in this case where the two single- family homes, one on each lot, are already there. Approving the application would reconcile the existing situation with the past history of the property, which was in the beginning two parcels and is still, based on the record, two parcels (Lots 1 and 2). Approving the application would be totally consistent with the requirements of SB-9, the only obstacle being that the parcel is not located within a single-family residential zone. It remains to be seen whether the legislature will address that loophole in the SB-9 legislation, but the City should not wait for the legislature to make that change and the City has full authority to do that without waiting for Sacramento to act. What is simply involved here is a request to reorient the boundary line between the two lots so that it runs between the two homes rather than running through the middle of both homes. We had suggested to the City Attorney's office that the best procedure here would be to record a lot line adjustment map, followed by the issuance of a Certificate of Compliance, with the undersized lots being grandfathered in. The advantages of proceeding in that fashion include that it would be categorically exempt from CEQA, no survey would be required, no Parcel Map would be required, the Permit Streamlining Act applies to lot line adjustments, and it can be done by recording a deed and save everyone, including the City staff, a lot of time and expense. The City Attorney's office responded that because T:\WPWIN60\JOHN\MEMOS\Gelman[02 03 23].doc Gelman Griffith February 3, 2023 Page 5 the tract map which created these lots was recorded in 1891, before the adoption of the first Subdivision Map Act, the lots are only recognized if they were separately conveyed. Government Code Section 66412(d) provides that a lot line adjustment between four or fewer existing adjoining parcels does not require a Parcel Map where a greater number of parcels than originally existed is not created, and if the lot line adjustment is approved by the local agency. The local agency shall limit its review and approval to a determination whether or not the parcels resulting from the lot line adjustment will conform to the local General Plan and any applicable Specific Plan. The staff in this case states in attachment C (Findings for Approval) that the project is consistent with the policies in the comprehensive plan. The City Attorney has taken the position that Lots 1 and 2 of Block 48 should not be recognized because the map creating them was recorded in 1891, two years before the adoption of the first Subdivision Map Act. The authority for that statement is a 2003 case (Gardener v. County of Sonoma (2003)) decided by the Supreme Court of California. It should be noted that in that case, the map in question had been recorded in 1865 and consisted of 90 rectangular lots in a grid superimposed on over 1,000 acres of open land west of Sebastopol. The map did not show any interior roads or other subdivision infrastructure. On the other hand, the map of College Terrace which created Parcels 1 and 2 creates all of the streets in College Terrace, all of the infrastructure, each street being named for a different college, and the map remains as an accurate depiction of the streets, blocks and lots as they were originally created and as they remain today, as a matter of record. Lots 1 and 2 have continually been referred to in all legal descriptions as two separate lots. They have never been described as a single lot by a metes and bounds description. Moving the lot line so that it runs between the two homes rather than through the middle of the two homes is simply recognizing a situation that exists, is not creating a new rule of broad application, nor is it opening the door to a flood of new applications. It is simply correcting an existing anomaly by recognizing and accepting what is and what has been for 10 years and making sense out of an unfortunate situation which the current owners have nothing to do with creating in the first place. We believe that the City has the legal authority to approve the reorientation of the lot line, either by means of a Parcel Map or a lot line adjustment, and that it is the right thing to do. T:\WPWIN60UGHN\MEMOS\Gelman[02 03 23].doc