From: Jeff Levinsky
To: Council, City
Subject: Item 16: Appeal of Director’s Interpretation regarding 3886 Magnolia Drive Date: Sunday, August 17, 2025 4:28:00 PM
Dear City Council Members:
Here’s a different way to evaluate this situation.
In essence, the appellant proposes to remove floor area on their second floor and expand the first floor, ending up with 11 fewer square feet of floor area, which is still in excess of the current legal amount on their lot.
Let’s think about the order of these two steps.
If they first remove the second floor portion and then seek to expand their first floor, that’s clearly not allowed. The removal of the second floor portion would decrease their non- compliance with their floor area limit and then the later expansion would increase their non- compliance and thus be disallowed.
If they instead plan to first expand their first floor and then seal off their second floor space, that too would not be allowed. Again, that’s because the first floor expansion would increase their non-compliance.
No two actions of this complexity can actually be simultaneous, even if they overlap. So under both practical scenarios, the appellant’s proposal does not comply with the municipal code.
That’s it in a nutshell.
The appellant doesn’t address this way of thinking about their proposal.
The appellant also somewhat incorrectly claims that “the term ‘relocation’ appears nowhere in the text of Section [18.70.]100.” While the word “relocation” itself doesn’t appear, the concept of relocation is in 18.70.100(c), which allows excess floor area to be relocated in a building in specific zones but not R-1. As staff note, why would such a rule exist if the section already allowed relocation, as the applicant claims?
However, staff’s argument about reconfiguration of non-compliant space being disallowed by
18.70.080 is also not compelling. Staff doesn’t seem to explain what actual non-compliant aspect would increase due to the proposed reconfiguration. Staff talks about “form, massing, and presentation,” but the proposed remodel would not be out of compliance with any of those. So the appellant appears to be correct that their proposed remodel would not increase by any measure their degree of non-compliance according to the staff's logic.
But it doesn't matter. I recommend you uphold staff’s position for the reason that in whatever order the remodel occurs, it will at some point increase non-compliance and thus isn't legal.
That said, clearly our laws could be improved. But we should do it the right way. Staff recommends a new rule that would include the terms “consider”, “de-minimis”, “minor,” “not impactful,” and “public realm.” Such subjective notions muddy rather than clear up the law.
The staff recommendation also doesn’t address which zones would be affected and relies on individual discretionary approval rather than impersonal application of the law. It’s better to have crisp rules that spell out exactly what you want. So I recommend you reword the staff recommendation to request the amendment allow for relocated floor area in specific circumstances that are determined objectively, not subjectively.
Thank you,
Jeff Levinsky