Malibu’s Most Wanted:
Redefining Neighborhood Development

Synopsis-After the city of Malibu Planning commission denied the application for an estate home at 6701 Portshead, Schmitz and Associates was retained by the owners to represent the project on an appeal to the City Council. Our firm completed a comprehensive planning review, which was presented to the Council with an effective power point presentation. After a dynamic public hearing, where three of the planning commissioners testified in opposition to the project to defend their denial, the City Council overturned the Commission’s actions and approved the house design with no changes.

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 includes a sizeable structure to fulfill the coastal living lifestyle—large living spaces, hosts of accessory structures, and a spacious backyard with breathtaking ocean views. While collaborating with a wide-range of consultants to produce our client’s vision, we have consistently conformed to the regulations of the City’s General Plan, Municipal Code, and Local Coastal Program. Section 3.6(K) of the Malibu Local Implementation Plan (LIP) provides 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, which includes, guest houses, garages, barns, sheds, gazebos, and cabanas. The formula is based upon the size of the property owner’s lot area, so the larger the lot the more TDSF. 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 LCP, 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.

Recently, a few members of the Planning Commission desire to further restrict the size of a home by limiting TDSF to an average of the surrounding homes in the neighborhood. Consequently, some Commissioners are trying to apply 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 allows 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

Before the City was first incorporated, residences were built as large as 20,000 square feet, or more. Consequently, the City made a calculated assessment that the house size should never exceed 11,172 square feet, and that residence size should be controlled by 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 examined our client’s subject property located at 6701 Portshead Road which is located in a developed residential neighborhood, where the surrounding development consists of one and two-story single-family residences with accessory structures. 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 5: View of Subject Property from Portshead Road (Looking West) with Architect Rendering. Courtesy of Burdge & Associates, Inc.

View of Subject Property from Portshead Road (Looking West) with Architect Rendering. Courtesy of Burdge & Associates, Inc.

 

Our client’s main residence was proposed at 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). 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 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 front of the building and cannot be seen from the street (Figure 7).

In their denial of the application, the Commission argued that the home is inconsistent with the “Mansionization” policies of the General Plan; yet, the house was consistent with all development standards which were adopted to implement these anti-mansionization policies (Figure 8). Therefore, those development standards are clearly 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. 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 the development standards. 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 the LIP. This new application would provide a ceiling or new maximum TDSF that does not take into account the size of the applicant’s lot relative to its neighbors lots as is provided for by code.

 

Figure 8: Conformance Review with Departmental Approvals.

Figure 8: Conformance Review with Departmental Approvals.

 

Furthermore, there was no evidence in the record, substantial or otherwise, that the client’s proposed home would have negative secondary land use impacts on the neighborhood in any form. It was consistent with the maximum allowable TDSF, yard setbacks, height envelope, 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 was found by the Council to be without merit (Figure 10).

Figure 9: Proposed Development with Conformance to Applicable City Standards. Source: City of Malibu, City Council Staff Report.

Figure 9: Proposed Development with Conformance to Applicable City Standards. Source: City of Malibu, City Council Staff Report.

Figure 10: Resolution No. 17-39, Pg. 3. Source: City of Malibu, Planning Commission Staff Report.

Figure 10: Resolution No. 17-39, Pg. 3. Source: City of Malibu, Planning Commission Staff Report.

Policies and Procedures: The Site Plan Review

Because the proposed residence exceeded 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 had 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. Two additional findings are required pursuant to Malibu Municipal Code Section 17.62.050.

 

Figure 11: Site Plan Review for Building Height.

Figure 11: Site Plan Review for Building Height.

 

For our client’s application, the Commission did not adequately 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, without a basis in law or policy, and runs contrary to years of precedent by the City Planning Commission and the City Council. Although proposed projects comply with the overall maximum structure size requirements, the Commission has recently 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 particular 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 did 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 was more than the average allowable TDSF based on 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). As, our client’s project as designed was consistent with all development standards in the LCP and the MMC, evaluation of the project plans, and substantial evidence in the record from our research and presentation, the Council found that the project was consistent with and will not have an adverse impact upon neighborhood character.

 

Figure 12: Figure Ground Study of Surrounding Development within 500-feet.

Figure 12: Figure Ground Study of Surrounding Development within 500-feet.

In applying this new test, the Commission has departed from the explicit development standards, 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 had 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. Our research and graphic presentation documented to the satisfaction of the Council that the proposed home that was visible from the street, and correctly subject to the discretionary authority of the city, was not out of character for the neighborhood.

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 applying such a new regulation, the City must process an LCPA/. The City Council has recently discussed this possible regulation change, and the City Attorney have acknowledged publicly that the regulation modification would likely require legislative review and action before it could be applied to development applications. It is the City Council’s sole prerogative, as the legislative body for the City, to adopt new law or regulations. As the Council has not adopted this either as law or policy, the Commission’s adoption and use of this “test”, is beyond their authority. 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 regulations, and this was the very first project that the Commission had denied on the basis that the home is not consistent with the “Neighborhood Standards” provisions of the code. We are pleased that the council listened to our presentation, and voted to overturn the Commission and approve the project.

Conclusion

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%. Any applicant should be cognizant of the fact that the City will closely scrutinize any proposed development as it pertains to neighborhood character, and you cannot rely solely on TDSF. 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 interpretations are still in flux, and applicants should be well prepared to address neighborhood character in their designs and presentation. The project can be reviewed at the City Council Public Hearing on January 10th, 2018 (please look at Item #4C).

Please don’t hesitate to reach out to us should you have any questions or comments regarding this issue, or any of your land use planning needs.