Malibu’s Most Wanted:
Redefining Neighborhood Development
Over the past two decades, Schmitz & Associates, Inc. have engaged in the permitting and development of numerous Single-Family Residences in the City of Malibu. Property owners in Malibu desire an eclectic design style that often demands a sizeable structure to fulfill the coastal living lifestyle—large living spaces, hosts of accessory structures, and a formidable back yard with breathtaking ocean views. While collaborating with a wide-range of consultants to produce our client’s vision, we have all tried to succeed in conforming to the by-laws of the City’s General Plan and Municipal Code. According to Section 3.6(K) of the Malibu Local Implementation Plan (LIP) describes a formula for determining the appropriate allowable Total Development Square Footage (TDSF) for a parcel. By definition, TDSF is the calculated area of interior space of primary and accessory structures. Accessory structures include, but not limited to, guest houses, garages, barns, sheds, gazebos, and cabanas. The formula is based upon the size of the property owner’s lot area. For example, the larger the lot would allow a larger Total Development Square Footage. The TDSF formula was adopted as part of the City’s Zoning Ordinance in 1994 and was later codified in 2002 when the California Coastal Commission adopted the City’s Local Coastal Program, the LIP component of which implements the policies of the Program and the City’s General Plan. Since 1994, the City has applied this formula on every project that has been reviewed and heard before the Planning Commission and the City Council until recently.
Today, a few members of the Planning Commission adhere to compact development by limiting TDSF consistent to the context of the neighborhood. Consequently, Commissioners have applied a new formula that would, in effect, replace and supersede Section 3.6(K) of the LIP and its counterpart, the Malibu Municipal Code 17.40.040(A)(13), which undermines the investment backed expectations of all property owners in the City. The Commission’s “self-developed formula” requires the applicant and the City to utilize the “Neighborhood Standards” provision of the Code (Section 17.40.040(A)(16) and LIP Section 3.6(L)). This provision grants the Commission to deny a project that is larger than the average of all surrounding developed parcels within 500 feet of the applicant’s property. However, the City’s “Neighborhood Standards” provision only applies to application requests for “increases” in Total Development Square footage, building height and decreased yard setbacks. This section is intended to provide applicants with a relief from unique hardships and to provide parity in treatment for applicants with difficult lots and hardships, similar to a variance. Nothing in this section states or implies that it is intended to be applied to restrict or otherwise thwart the development rights afforded to applicants.
A Planner’s Perspective to the City’s Residential Development
At the time the City was first formed, residences were built with more than 20,000 square feet. Consequently, the City made a calculated assessment that the house size should never exceed 11,172 square feet and that residence size should be allotted on the basis of a Floor Area Ratio (FAR), which was incorporated into the TDSF development standard (Section 3.6K). While certain Commissioners argue that the allowed 11,172 square feet home is still considered “too big” for the neighborhoods in Malibu, this question was answered by the City Council when it adopted the development standards implementing the General Plan policies. To argue this case in context, Schmitz & Associates, Inc. conducted a Neighborhood Character study approach.
Our case study examines our client’s subject property located at 6701 Portshead Road which is located in a developed residential neighborhood and surrounding development consists of one and two-story single-family residences with accessory structures (i.e. pool and guest houses, cabanas, and garages). A majority of the existing homes surrounding the project are two stories and taller than 18’ in height. Additionally many of the residences along Portshead Road, specifically to the south of the Property, are sited very close to the street with legal non-conforming front yard setbacks. The topography along Portshead descends from the roadway through the applicant and the neighbor’s properties towards the west. The descending topography allows for new residences to be sited outside the front yard setback (65’ from property line) and well-below road grade, thereby minimizing the bulk and massing of new residences as viewed from Portshead Road or Selfridge Drive (Figure 1 and Figure 2).
Our client’s main residence is proposed with 7,314 square feet with a proposed 62.5 set back from the front property line sited below road grade, thus, minimizing the residence’s visibility from Portshead Road and reducing the perceived size and bulk of the front facade (Figure 3 and Figure 4). The residence is designed in an “L” shaped formation with most of the massing of the residence trending from east to west, thereby further minimizing the visibility of a large portion of the residence when viewed from Portshead Road, which trends north-south (Figure 5). The ground elevation at the street is at 225’ above sea level (msl) while the finished floor of the garage is sited 6’ lower at 219’ msl (ff) and the finished floor elevation for the main living area sited 8’ below adjacent road grade at 218 msl (grades measured at face of front elevation). From the front elevation, the home steps down to a finished floor elevation of 205 msl. (20’ below road grade at lower level). This design allows the front (Street-facing) elevation to maintain the appearance of a predominantly one-story home (Figure 6). To further minimize the bulk and massing of the home, the applicant has proposed a second story element which is limited to 35% of the area of the first floor (2,252 square feet), rather than attempting to max out the allowable second story square footage at 66.67% (4,228 sq. ft.). Of that 2,252 square feet only 992 square feet appears, from the street, to be a second story element (guest bedroom and Study above the garage). This is due to the fact that the structure steps down to the west and the mass of the lower level beneath the master bedroom suite (Media room & gym) cannot be seen from the street (Figure 7).
The Commission argues that the home is inconsistent with the “Mansionization” policies of the General Plan; yet, the house is consistent with all development standards which were adopted to implement these anti-mansionization policies; a lackluster inference by the Commission (Figure 8). Therefore, Section 3.6(K) is, indisputably, consistent with the City’s General Plan inasmuch as the Council made those findings in adopting both Title 17 (Zoning Code) and the City’s LCP. The Maximum allowable development square footage per the City’s TDSF formula (Section 3.6K & Section 17.40.040(A)(13)) is 11,172 square feet. At the time when the City of Malibu adopted its Zoning Code, it made a conscious determination that, on parcels equivalent to our client’s size (2.54 acres), a larger home would be proportionate to the parcel size as long as it adheres to all General Plan policies. Arguably, the application of the Commission’s new “test” is without basis in code and is completely inconsistent with the plain language and intent of Section 3.6(K) in that it creates a completely new “formula” to replace the formula provided in Section 3.6(K) of the LIP. This new application provides a ceiling or new maximum TDSF that does not take into account the size of the applicants lot relative to its neighbors lots as is provided for in Section 3.6(K).
Furthermore, there is no evidence in the record, substantial or otherwise, that the client’s proposed home will have negative secondary land use impacts on the neighborhood in any form. It is consistent with the maximum allowable development square footage formula, yard setbacks, height envelope permitted, and other development standards; it follows then that the home is consistent with the City’s General Plan (Figure 9).The General Plan is a policy document, not an implementation plan, it cannot be used as a general “Catch All” or “Backstop” argument to support a project’s denial where the facts on the record amply demonstrate that the project meets all the development standards in the zoning code and local coastal program. A project may only be found inconsistent with the City’s General Plan where that project has been found to be inconsistent with the zoning ordinance that implements it. To this end, the finding 3.C.2. on page 3 of Resolution 17-39 is entirely without merit (Figure 10).
Policies and Procedures: The Site Plan Review
Because the proposed residence exceeds 18’ in height, the Code requires that the City process and approve a Site Plan Review (SPR). SPR requires the City to make a finding that your proposed home will not have an “Adverse effect on neighborhood character.” The SPR No. 15-037 has been requested to allow portions of the proposed home to exceed 18’ in height up to a maximum of 24’ in height with a flat roof (Figure 11). In making the “adverse impact” assessment, the City has historically looked at the size, bulk and massing of the area over 18’ in height, including its proximity to viewing areas, and compared that “portion” of the structure (over 18’ in height) to nearby surrounding residences to determine if, that portion of the project, might have an adverse impact on neighborhood character. This is logical since the “neighborhood character” finding applies only to site plan reviews and the purpose of the site plan review is to assess whether that aspect of the project requiring the SPR is consistent with the neighborhood. LIP Section 13.27.5(A) requires that the City make four findings in the consideration and approval of a site plan review for construction in excess of the City’s base 18 feet in height up to 24 feet for a flat roof. Two additional findings are required pursuant to Malibu Municipal Code Section 17.62.050.
For our client’s application, the Commission did not consider the bulk, massing or visibility of the proposed residence as viewed from the street or adjacent residences in accordance with established practice and policy. Instead, the Commission opted to simply “average” the total development square footage of all developed lots within 500 feet in the neighborhood. In so doing, the Commission determined that the proposed residence, being larger than the average of these surrounding homes, ipso facto, had an adverse impact upon neighborhood character. This finding was made arbitrarily and capriciously, without a basis in law or policy and runs contrary to all past actions of the City Planning Commission and the City Council. Although the proposed project complies with the overall maximum structure size requirements, the Commission has been denying or modifying projects that exceed the average square feet by more than 30 to 40% of the surrounding homes within 500’ of the applicant’s property.
For this study, we tabulated the Total Development Square Footage (i.e. the sum of all garage, accessory structure, and single-family residence square feet) of all surrounding development within a 500’ radius of our clients’ properties. We do this in order to determine the average size of nearby homes in or clients’ neighborhoods, as this is relevant to the findings required for approval of Site Plan Review Projects. In doing so, we compiled our research from the L.A. County Assessor’s office and Building Permit records from City of Malibu to evaluate consistency with this new City policy. We reviewed 24 properties and revealed that 35 percent of the residences were developed over 18 feet (Figure 12). Building Permit records from the City revealed that neighboring development consisted more than the average TDSF on per the owner’s lot size (Figure 13a and Figure 13b). Furthermore, we quantified and reviewed the surrounding neighborhood through aerial images and building records in the Greater Point Dume area and our results revealed that single-family residences were built with a greater square footage area (Figure 14). Lastly, our project as designed is consistent with all development standards in the LCP and the MMC and based upon site visits and story pole inspections conducted by staff, evaluation of the project plans, and substantial evidence in the record, the Council should find that the project is consistent with and will not have an adverse impact upon neighborhood character.
In applying this new test, the Commission has violated our client’s Equal Protection rights and treated them disparately without legal justification. As noted, the Commission did not follow the City’s past practice of assessing the impact of the Site Plan review aspect of the project, and instead, the Commission has opted simply to cap the maximum allowable square footage of our client’s proposed residence based upon the average size of all homes in the neighborhood. This approach is, again, completely arbitrary and patently inconsistent with the current code, adopted Council policies and past practice.
This new “test” was applied to our client’s application without passing new legislation in the form of a Local Coastal Program Amendment (LCPA) or Zone Text Amendment (ZTA). Prior to its application, the City must process an LCPA/ ZTA to provide the requisite notice and opportunity to be heard required by the MMC, LCP, California Coastal Act, and the Constitution, to all landowners in the City. Additionally, the City Council has recently discussed this “test” and the Council and City Attorney have acknowledged publicly that application of such a test would likely require legislative review and action before it could be applied to development applications. The Commission’s decision runs completely afoul of this and fails to heed the Council and the City attorney’s warnings that the new “test” would likely require a Zone Text Amendment and Local Coastal Program Amendment. Additionally, it is the City Council’s sole prerogative, as the legislative body for the City, to adopt new law or policy. As the Council has not adopted this either as law or policy, the Commission’s adoption and use of this “test”, “Policy” or what have you, is beyond their authority as a quasi-judicial body. Their sole function and power is to evaluate the facts of an existing application under the existing law and policies adopted by the Council. Their actions to deny our client’s project, based upon this new neighborhood standards “test” is contrary to current law and policy. This is the very first project that the City has denied on the basis that the home is not consistent with the “Neighborhood Standards” provisions of the code.
It is important that the Planning Commission applies the proper standards and consistent with current codes, policies, past practices and the General Plan in determining that there is no adverse impact to Neighborhood Character. Our client’s lot is one of the largest parcels in the neighborhood, totaling 2.54 acres (110,882 sq. ft.). It follows that their investment-backed expectations would be materially greater than that of their neighbors with smaller lots and that the ultimate size of the home built thereon would be greater. The City Council has become very stringent on limiting square footage and height requirements for any proposed development. Recently, we have gone through multiple hearings where the Council has been amenable for development within 30% – 40% than the average development, but nothing more than 40%. Although, we do not want to take a conservative approach, but the Council will closely scrutinize any proposed development. The City’s current practice of evaluating neighborhood character includes an analysis of the visual impacts of the project from the adjacent street, neighboring properties, and public viewing areas. In doing so, it is important to note that the City Council is still in the process of formalizing their policy for evaluating neighborhood character, and therefore, the rule is currently not “black and white.”
We have successfully represented several projects over the past few months in obtaining approvals for Site Plan Review; however, it should be noted, that some of these projects were revised by the Planning Commission and City Council at hearing to reduce the size, massing or overall square feet in order to make the finding that the project is consistent with Neighborhood Character. This policy is very new and in flux and we wanted you to be aware of the potential issues involved so that you can make informed decisions moving forward. The project can be reviewed at the City Council Public Hearing on January 10th, 2018 (please look at Item #4C). We would recommend that you watch at least portions of these hearings so that you can better understand the issues involved: