When does the city-wide voter approval requirement in Santa Monica’s Measure LV apply to an existing building? I’ve heard people say that LV would apply for everything from repair after an earthquake to replacing a toilet.
First of all, it’s important to know that LV would by design trump other sections of city code that may be in conflict with LV. From Section XV of Measure LV:
So now that we know that LV takes precedence over other portions of the municipal code, let’s look how the measure relates to other sections of municipal code.
First, Measure LV would create a requirement for a citywide vote to approve a “Major Development Review Permit” for projects that exceeds the Tier 1 maximum limit of 32 feet in height. There are more than a handful of people in Santa Monica who think that everyone in the city should get a chance to vote on any new building that’s over 32 feet in height, even if it’s next to buildings that are 45 or 50 feet in height. However, the language LV proposes for Santa Monica Municipal Code (SMMC) 9.51.020(A) states that it “shall be required prior to issuance of any building permit for any project.” (emphasis added)
So LV applies to “building permits” for “projects.”What does that mean? LV doesn’t define either term, so there’s no potential conflict with other portions of the SMMC.
It’s useful to know that while there are many types of “permits” in Santa Monica (SMMC 9.52.020.1870 lists them all). “Building Permit” is defined in SMMC 8.08.020: “an official document or certificate issued by the Building Officer authorizing performance of a specified activity” in a “structure used or intended for supporting or sheltering a use or occupancy.”
SMMC 9.52.020.1980 defines “project” as: “Any proposal for a new or changed use or for new construction, alteration, or enlargement of any structure…”
It would appear to apply not only to new buildings but also the change in use or any alterations of an existing building. Changes in use, sometimes known as adaptive reuse, is any change in a building’s classification under the zoning code. For instance, converting an office building into housing lofts would be a change in use.
But what constitutes an alternation? SMMC 9.52.020.0150 defines alteration:
9.52.020.0150 Alteration. Any change, addition or modification that changes the exterior architectural appearance or materials of a structure or object. Alteration includes changes in exterior surfaces, changes in materials, additions, remodels, demolitions, and relocation of buildings or structures, but excludes ordinary maintenance and repairs.
Alteration, as defined here, excludes ordinary maintenance and repairs, but includes changes in exterior surface materials. Measure LV wouldn’t apply to replacing a toilet– but it would apply to replacing a pre-existing building’s exterior siding.
While proponents of LV may point to other sections of Santa Monica Municipal Code to explain why LV’s citywide-voter approval requirement doesn’t apply to repair or reconstruction after an earthquake, those proponents are not the ones who get to interpret measure LV. It’s up to the City and, if anyone disagrees with the City’s implementation, then the courts. From the measure’s impartial analysis:
Portions of this measure potentially conflict with existing law and might not be enforceable if adopted…
A court would decide how to implement this if the measure was successfully challenged.
You might think the City, both the government and the people, would grant leeway to interpret LV to allow more liberal reconstruction and repair after an earthquake–but it only takes one person to sue to prevent or delay that from happening. And while it might be hard to get 50% + 1 of Santa Monicans to agree on anything related to buildings and development, it’s even harder to unanimous consent that no one will sue.
Does LV apply to solar panels? SMMC 9.21.150 allows city staff to issue a building permit for solar panels extending no higher than 5 feet above the roof surface, even for a building that exceeds the maximum height for its district. Is measure LV in conflict? Ask the judge when one is assigned to the case after someone sues.