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Szilak 20ENT-0275
conformed copy
Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
1 Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard
This appeal relates to how the subject application for discretionary entitlements, if built, would violate the Santa Monica Municipal Code (“SMMC”) zoning ordinance. I also provide, herein, specific current and ongoing violations of conditions that the Carlthorp School (the “Applicant”) must abide by based on its already existing discretionary entitlement permit. One such requirement of the Carlthorp School’s existing discretionary entitlement permit is that it may not obtain approval of any additional entitlements so long as it is violating any such conditions. Therefore, the Planning Commission should not have approved the Carlthorp School’s Application for additional entitlements because it is in violation of at least one of such conditions.1 (It is actually in violation of multiple Conditions.) And, the Planning Commission should not have approved Carlthorp School’s application because the proposal violates SMMC zoning ordinances.
This appeal also relates to many other issues and concerns, including how the proposed project presents an unreasonable imposition upon the Applicant’s neighbors, design issues, compatibility issues, environment issues, and much more.
The Parcel Coverage on the Second Floor Would Violate the SMMC; and the Staff Report and the Application Are Deficient
SMMC Section 9.08.030, Development Standards, would be violated if the Applicant were permitted to develop its proposed project. The subject property is in an R2 District where the Maximum Parcel Coverage on the Second Floor is limited to 90% of the allowable Ground Floor coverage. (SMMC Section 9.08.030.) The Maximum Parcel Coverage on the Ground Floor is 45% of the entire Parcel. (Id.) Therefore, the Maximum Parcel Coverage on the Second Floor is 40.5%.2
(45% * 90% = 40.5%)
However, the Applicant’s Parcel Coverage Calculations, “FOR PURPOSES OF CODE COMPLIANCE,” as depicted in Attachment D. Project Plans, at pages A121-B and A122-B, are grossly in error. (Staff Report, Attachment D. Project Plans, at A121-B and A122-B.)
Page A121-B refers to and calculates the “Main Level” Parcel Coverage. Page A122-B refers to and calculates the “Upper Level” Parcel Coverage. The Main Level is
1 The “Application” that I refer to is a reference to the Applicant’s request 19ENT-0250, (Conditional Use Permit), and 20ENT-0066 (Minor Modification). The Applicant is the Carlthorp School (and Ken Parr), located at 438 San Vicente Boulevard in Santa Monica, CA. 2 In part, the Applicant’s request is to increase their Parcel Coverage from 45% to 45.05%. Also, in some places in the documents there are references to 45.06% parcel coverage and other places 45.05%.
Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
2 essentially the Ground Floor, and the Upper Level is essentially the Upper Story or Second Floor, according to SMMC 9.08.030. The Applicant’s erred in its calculation because it utilized “THE CLASSROOMS ALONG THE REAR ALLEY[, which] ARE TREATED AS THE MAIN LEVEL FOR PURPOSES OF [the] CALCULATION OF PARCEL COVERAGE,” in conducting its “Main Level” Parcel Coverage calculation. (Attachment D. Project Plans, at A121-B.) However, those classrooms are on the Second Floor, not the First Floor, as the Applicant concedes. The Parking Garage beneath the Second Floor classrooms is the First Floor, as the Applicant also concedes.
The Staff Report and the application (Case Numbers 19ENT-0250 (CUP) and 20ENT0066 (Minor Modification)) are deficient because the Parcel Coverage calculation for the First Floor (or Main Level) is based on the wrong floor.
The Parcel Coverage calculation for the Second Floor is grossly in error because it completely excludes the row of classrooms above the parking garage, which is indeed a part of the Second Floor, as depicted in Pages A121-B and A122-B of the Staff Report, Attachment D. Project Plans. The Second Floor Parcel Coverage exceeds the Maximum Parcel Coverage of 40.5% for the Second Floor. And, regardless, the Staff Report and the application are deficient because the Parcel Coverage calculation for the Second Floor (or Upper Level) is grossly inaccurate.
The Parcel Coverage for both the First Story and the Second Story violates the Zoning Ordinance, even with the approval of the Applicant’s requested Minor Modification.
And, regardless as to whether the First Story and/or Second Story Parcel Coverage exceed the maximum allowed by the Zoning Ordinance (SMMC Section 9.08.030.), the Staff Report with attachments and with all other submissions materially misinformed the Planning Commission and the public thus causing the process to be tainted and invalid.
The Planning Commission and the City of Santa Monica must follow proper procedures, which were not followed here.
And, the Applicant’s Minor Modification request was for an increase from 45% parcel coverage to 45.06% parcel coverage.3
At the Planning Commission hearing, a partial
correction of the miscalculation relating to the First Story was presented by Staff to the Planning Commission, increasing the First Story Parcel Coverage calculation from
45.06% to 45.29%. Essentially, this modification of the Minor Modification request was conducted like an “audible” in a football game and the Planning Commission approved the Minor Modification for 45.29%. Such a procedure is not proper. The public and the Planning Commission were not given proper notice and there are other procedural flaws to increasing the Minor Modification at the last moment.
SMMC 9.08.030.F.3
3 Some places in the documents there are references to 45.06% parcel coverage and other places 45.05%.
Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
3 The proposed project appears to violate SMMC 9.08.030.F.3.
Zoning Code Violations in the South Wing Building
The Applicant proposes redesigning the south wing building so that it would have three stories, in violation of the Santa Monica Municipal Code (“SMMC”). The subject property is in an R2 zone, where no more than two stories are permitted. (See SMMC Section 9.08.030 (Development Standards).) The parking area level is the first story, contrary to the Applicant’s false and misleading assertion in its Discretionary Permit Application that the proposed rooftop playground would be “above a single-story (including basement) wing of the campus.” (See Minor Mod Project Description, at 2.) SMMC Section 9.52.020.2320 defines what a “Story” is, which does exclude an attic and a basement. (See, also, SMMC Section 9.04.060 (Determining the Number of Stories in a Building).) However, the parking area level is not a basement because more than three feet of the parking area level projects more than 3 feet above the Average Natural Grade. (SMMC Section 9.52.020.0230 (defining “Basement”). The second story, which the Applicant admits to, is immediately above the parking area level and primarily contains classrooms.
The Applicant proposes that it be permitted to add a third story above the other two stories described above. The area above the second story is at least a full seven feet high up to the top of the roof, as depicted in the Staff Report, Attachment D, Project Plans, Plan Numbers A200, A201, A300, and A301. While the definition of a Story does exclude an attic (see SMMC Section 9.52.020.2320), the space above the second story does not meet the definition of an attic and it is thus a third story. (See SMMC Section
9.52.020.0180 (limiting an attic to an “area less than 7 feet in height”).) The Planning Commission should not have permitted the Applicant to build a playground on top of the southern wing of its campus because the additional third story that the Applicant proposes building beneath the roof would exceed the limitation of two stories in an R2 zone. (See SMMC Section 9.08.030 (Development Standards).) It was unlawful for the Planning Commission to have approved the Applicant’s plans and proposal.
The Applicant addressed the above zoning code violations, relating to adding an illegal third floor, in a letter to Regina Szilak, dated 9/1/2020, from Kenneth Kutcher, but it is incorrect and neglects to address the facts and law that I present.
The Planning Commission should also have rejected the Applicant’s proposal because it would create a second and a third zoning violation. SMMC Section 9.08.030, which specifies certain Development Standards, increases the rear setback to 20 feet for rear setbacks for parcels bordering an R1 District zone in the rear of the parcel. (See SMMC Section 9.08.030.D.2.) The Applicant’s parcel borders an R1 District zone in the rear of its parcel. “Where a rear parcel line abuts an alley, the rear setback shall be measured from the center line of the alley.” (SMMC Section 9.04.130.B.) According to the Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
4 Applicant’s plans the south wing building is approximately 16 feet from the centerline of the alley. (See Staff Report, Attachment D, Project Plans, Plan Number A101.) The Applicant cannot execute its proposal without violating SMMC Section 9.08.030.D.2., and therefore the Planning Commission should have rejected the Applicant’s proposal.
A third zoning violation would occur because the height of a structure within 25 feet of an R1 District zone is limited to 23 feet for a building with a flat roof. (See SMMC Section 9.08.030.D.1.) As stated in the previous paragraph, the Applicant’s parcel borders an R1 District zone in the rear of the parcel and at its closest point, the building is only approximately 16 feet from the centerline of the alley. Thus, the first 9 feet of the building from the southern perimeter of the building would be in violation of the zoning code because the Applicant proposes that it install a flat roof where the building height would become 30 feet, in violation of SMMC Section 9.08.030.D.1. The Planning Commission should have rejected the Applicant’s proposal.
Noise and Privacy
Additional Reasons for and Allegations relating to the Appeal regarding Noise and Privacy concerns shall be added to this document in the near future with supplementary submissions. Amongst the most egregious impositions upon the Applicant’s neighbors and the neighborhood relate to the excessive and unreasonable noise that the Applicant generates. The proposed project would substantially compound such imposition.
The Applicant Plans to Use the Proposed Subterranean Space for Teaching Classes, Thus Requiring Additional Parking That is Not Included in the Proposal The Planning Commission should have rejected the proposal also because the project would add classroom space and thus require additional parking, which is not a part of the proposal. The subterranean room for music and performance classes and for performance activities is functionally adding classroom space, for which the zoning code requires that the school add parking spaces. However, the Applicant misled the Planning Commission and the public with the specious claim that the proposed large multipurpose room would not be used for classroom purposes to avoid having to increase their already substantially deficient amount of parking. The Applicant admitted that its proposed “subterranean multi-purpose room” would be used for teaching classes and as classroom space when it said that the proposed expansion would be used for “performances and other K-6 educational activities, which include music and performing arts classes.” (See City of Santa Monica – City Planning Division, Discretionary Permit Application, for 438 San Vicente Blvd, for a Minor Modification (not dated or signed), attached sheets Project Description (“Minor Mod Project Description”), at 2.)
The Applicant’s admission that it plans to use the subterranean multi-purpose room for teaching classes and as classroom space is their long-standing position. The Applicant made the same admission in their initial application. (See City of Santa Monica – City Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
5 Planning Division, Discretionary Permit Application, for 438 San Vicente Blvd., 19ENT0250 (CUP), and 19ENT-0251 (CDRP), signed by Tim Kusserow, attached sheets Project Description, at 2.) The Applicant again admitted that it plans to use the proposed subterranean multipurpose room for teaching classes and as classroom space in their first amendment. (See City of Santa Monica – City Planning Division, Discretionary Permit Application, for 438 San Vicente Blvd., 20ENT-0066, signed by Tim Kusserow (3/3/2020), attached sheets Project Description, at 2.) The Applicant’s Cover-up and Rationalization of the Additional Classroom Space
On May 1, 2020, I discussed the Applicant’s proposals with Jing Yeo, the City’s Planning Manager and Zoning Administrator. I inquired why the Applicant had not planned on adding parking spaces to satisfy zoning requirements, considering that it was adding classroom space. Ms. Yeo told me that if the Applicant is adding classrooms, it must also add parking. I then pointed out that the Applicant had admitted that it plans to add classroom space using the subterranean multipurpose structure. Ms. Yeo told me a day or two later that she informed the Applicant as to what I had said. The Applicant immediately began rationalizing and trying to cover up its admission that it intends to use the subterranean structure for teaching music and performing arts. Within a few days, the Applicant produced a draft of what became a propaganda piece, the Carlthorp School Statement Regarding Existing and Planned Multipurpose Rooms (“Multipurpose Room Misleading Rationalization Statement”), which was obviously designed to cover up their obvious and admitted intention of using the proposed subterranean structure for teaching music and performing arts.
As described above, the Applicant claimed that it intended to use the multipurpose room as a classroom in several of its documents. The Applicant also has a long history of misleading and misrepresenting its intentions. (See the section, below, The Applicant’s Long History of Misleading the City and the Planning Commission.) And, the Applicant has a long history of violating conditions of its CUP. Further, the multipurpose room will amplify how the Applicant is already overtaxing the surrounding neighborhood with its off-site parking needs. As described, below, the Applicant told the Planning Department when it applied for its currently existing CUP that it would only be expanding from a staff of 22 people (15 full time and 7 part time) to only 32 people (24 full time and 8 part time), but instead it expanded to a staff of 80, after assuring the community and the Planning Department that it would not grow its staff to exceed 32 people. The Applicant now has disingenuously and deceptively claimed that it will not expand its existing enrollment of 280 or their staff of 80. The Applicant cannot be trusted when it claims that it will not use the multipurpose room for teaching classes. The Applicant misled the Planning Commission and the public and cannot be trusted and is not reliable and has disrespected the City and its Officers, the City’s zoning ordinance, and the Applicant’s neighbors.
.
Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
6 After many of the above facts and arguments were made prior to the Planning Commission hearing, which had been scheduled for May 20, 2020, the matter was taken off calendar due to many of the assertions and allegations presented herein and ultimately rescheduled for November 4, 2020. In preparation of the November 4, 2020 hearing, the Applicant submitted a revised propaganda piece Multipurpose Room Misleading Rationalization Statement, Attachment J, Multipurpose Room, as part of the Staff Report.
The Staff Report absurdly justifies that the multipurpose room will not be used as a classroom referring to the proposed STOA Condition 17, which is self-contradictory because it prohibits the multi-purpose room as a classroom while also saying that it will be used in the manner described in Attachment J. (See Staff Report, Attachment B, (Draft Statement of Official Action) and Attachment J (Applicant’s Description of Multipurpose Room for Carlthorp School (the “Multipurpose Room Misleading Rationalization Statement”)).) However, the Multipurpose Room Misleading Rationalization Statement describes several classroom activities, including orchestra practices, theatrical practices, and climbing for physical education classes. (See id., Attachment J.) Anytime that such room is used to teach students that room would be used as a classroom. The Applicant intends for the music teacher to teach music to students, for the theater teacher to teach theater to students, and for the physical education teacher to teach PE to students, all in the multipurpose room. Clearly the Applicant intends to use such room as a classroom. And, the Staff Report, Attachment J, thus provides permission for the Applicant to use the multipurpose room as a classroom, in violation of the zoning code. If the Applicant wants to build the multipurpose room, it must either add additional parking or obtain a variance.
And, during the Planning Commission hearing, one of the commissioners implicitly or actually admitted that the multipurpose room would be used for classroom activity, but such commissioner said that the Planning Commission would allow the building to be built despite that fact because it was doing so with a wink and a nod. The project was thus approved without requiring the necessary additional parking by the Applicant who has already expanded its staff far beyond the level it had committed to years prior, and thus it has heavily imposed itself upon and substantially taxed the local street parking capacity in the neighborhood.
The Applicant clearly intends to use the multipurpose room, at least in part, as a classroom. The Applicant should have been required to concomitantly increase its number of parking spaces. And, conditions should have been made to prohibit the Applicant from increasing the number of staff and students.
The multipurpose room is below ground but its adverse impact on the neighborhood will still be substantial. There is no way to monitor how the multipurpose room is being used and whether it is being used in compliance with the Applicant’s CUP. The Applicant must not be permitted to function as a “fox guarding the henhouse.” There must be a rigorous method devised to assure independent verification on a continuing basis, without causing a burden to the neighborhood or the City. And, an officer of the Applicant Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
7 should be required from time to time to sign a log that is kept on a daily basis that details exactly how the multipurpose room is being used at all times. Such officer should be required to sign an affidavit under penalties of perjury that such log is accurate. And, the log and affidavits should be available to the public.
The Planning Division in its Staff Report disgracefully accepted the Applicant’s Multipurpose Room Misleading Rationalization Statement in Attachment J, relating to the proposed multipurpose room, instead of accepting the obvious and the Applicant’s earlier series of admitting that it has been planning to use the proposed subterranean structure for teaching music and performing arts classes. The Planning Commission should not have allowed the Applicant to build the subterranean structure because the Applicant in-so-doing would be increasing its classrooms, and thus it would be required to concomitantly increase the number of parking spaces, which is not a part of the Application. (See SMMC 9.28.060 (describing Off-Street Parking requirements).) The school already has been operating by, amongst other things, making substantial noise and imposing substantial stress upon the local neighborhood’s already overtaxed parking and traffic capacity. The school already does not have adequate parking (approximately 34 spaces) for its staff of 80 people, and has activities, inviting large numbers of visitors, whereby both staff and visitors every week day and occasionally for weekend events and at night park on the street as far as blocks away. On a daily basis, the school causes trains of vehicles idling and double-parked for an extended period of time that extend more than a block away, causing traffic interference and hazards to both pedestrians and vehicles. Such condition would be substantially aggravated by the school’s aggressive expansion proposals. The Applicant should absolutely not have inter-scholastic events.
The Applicant’s Long History of Misleading the City and the Planning Commission
The Applicant cannot be trusted and its statements are disingenuous and the Applicant has a long history of misleading the City and Planning Commission and its neighbors.
For example, the Applicant told the City when it applied for its current Conditional Use Permit (“CUP”) and variance, that their total staff would be expanded from 22 people (15 full time and 7 part time) to only 32 people (24 full time and 8 part time), which was a comparable percentage increase to their planned enrollment expansion of slightly less than 50% at that time. (See Letter from Arthur L. Kassan, Consulting Traffic Engineer, to Ronald K. Fuchiwaki, City Parking & Traffic Engineer, dated 6/13/1995, at 1.) The Applicant in 1996 received a variance to allow for their parking configuration, which would have been sufficient to support their “planned” staff of 32 people. However, the Applicant’s staff swelled to 80 people after receiving their CUP and variance in 1996.
Prior to that, the Applicant misled its neighbors when it told its neighbors that “[t]he enrollment of Carlthorp School will not increase [and] there will be positively no increase in the future.” (Letter (attached herein) of Dorothy Menzies, of the Carlthorp School Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
8 (dated 9/25/1986) (eliciting cooperation from its neighbors for an expansion project in the 1980s).) Such statement was obviously disingenuous. The Applicant’s student body was then less than half of its current level.
The Applicant now says that their proposed project would not expand their existing enrollment of 280 or their staff of 80. The Applicant cannot be trusted. As presented, nothing in their proposal would prevent them from increasing their enrollment or their staff after the City grants them additional entitlements, yet the school’s proposals would expand their functionality and concomitantly making it more likely that they would need more staff and be more capable of increasing their enrollment. That must not occur.
Generally, people are often inclined to be sympathetic to the causes of schools. Schools are charged, in part, to instill good values and character into the young. However, the Applicant bullies and harms its neighbors and misleads the City and the public. The Applicant is not worthy of any sympathy as an instiller of values and character and integrity.
The Applicant should have to negotiate directly with its neighbors if it wants to expand, rather than be permitted to dictate aggressive expansion plans upon its neighbors.
Contrary to the Staff Report and statements made by the Applicant, the Applicant made minimal effort in reaching out to and consulting with its neighbors regarding this extremely large and invasive expansion proposal.
The Application Should Have Been Rejected in its Totality Due to Procedural Flaws The Planning Commission should have rejected the application out of hand because the Minor Modification to Allow an Additional .06% Ground Floor Parcel Coverage was not signed or dated, which also made it confusing to the public in part because such document was the Applicant’s second amendment to its initial application.
The Planning Commission should have also rejected the application because I requested numerous documents and information, which I was denied or delayed in receiving. Some of the documents that I requested I never received. One particular concern that I expressed to Staff a number of times over a period of many months prior to the Planning Commission hearing, was that the parcel coverage calculations, for which the Applicant requested a Minor Modification, had not been verified. More than six months ago, I requested to receive certain information which, in part, probably would have been sufficient for me to conduct my own calculations to verify whether the parcel coverage conclusions in the application and in the Staff Report were actually correct. The Planning Division several times made commitments to me to provide such information.
However, the Planning Division, only a day or two prior to the Planning Commission hearing agreed to provide me with such requests, leaving me insufficient time to process such information and incorporate it into my comments and analysis. The Planning Commission should not have confirmed the application until I would have had the Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
9 opportunity to receive such relevant information and had ample time to conduct such relevant calculations. This is only one of many examples as to how the process was clearly tainted – heavily favoring the Applicant and heavily disfavoring the public.
Additional Potential Zoning Code Noncompliance Issues
Arguably, the subterranean large “multipurpose” room is a Community Assembly room, falling under SMMC 9.31.100, and would therefore require one parking space for every four seats. (See SMMC 9.28.060 (relating to Off-Street Parking).) Amongst other things, the Applicant is proposing to alter its courtyard. It must comply with SMMC Section 9.08.030.F.4., which requires that its courtyard “shall be visible and accessible from the sidewalk” and for the depth of Applicant’s courtyard, it must have an opening not less than 18 feet. The Applicant’s proposal does not consider this Development Standard and therefore the Planning Commission should reject the Applicant’s proposal. The Applicant’s proposal violates this code section.
Also, more than one-half of the perimeter of the Applicant’s courtyard must border a building. The Applicant’s proposal reduces this percentage. It is unclear from the drawings whether such ratio is sufficient. I allege that the proposed project violates this requirement.
SMMC Section 9.08.030.F.5 is also violated.
Other Issues
Additional Reasons for and Allegations relating to the Appeal regarding other issues, such as the proposed project would block sunlight from entering into the windows of the Applicant’s neighbors, shall be added to this document in the near future with supplementary submissions.
Violations and Issues Related to the 1996 STOA
Conditions
Plans
Condition # 1. This condition requires that a copy of the plans dated, July 27, 1995, “shall be maintained in the files of the City Planning Division. During my research and investigation, I asked the City Planning Division for a copy of these plans and to see these plans. I was denied that opportunity. The City Planning Division told me that they do not have a copy of those plans. I was told that Building and Safety might have a copy of such plans but that due to the City’s closure since March of this year, I would not be permitted to see such plans. This condition has been violated and I was denied the Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
10 opportunity to sufficiently conduct my research and investigation. Only after numerous requests and many hours spent making such requests did the City Planning Division make such plans available to me, but not until a day or two before the Planning Commission hearing on November 4, 2020, and I thus did not have the opportunity and time to review such plans and incorporate them into my comments and analysis, nor was Staff afforded the opportunity to incorporate any comments that I might have generated into their Staff Report. The public was thus denied access to such Plans and Condition #1 was violated. The Planning Commission should not have approved the applications until I, and the remaining public, had been given sufficient access to those plans and ample opportunity to review them and integrate such review into my research and investigation.
Architectural Review Board
Condition # 11. I believe that the Applicant is in violation of the 1996 SMMC Section 9.04.10.02.130. The Applicant has a storage area that appears to not be in compliance with this code section.
Miscellaneous Conditions
(The following references and quotes are to Attachment G, the Annotated 1996 STOA (the “Annotated 1996 STOA.”)
Condtion # 25. The Applicant has consistently been a horrible neighbor and has continuously acted detrimentally to its neighbors. The Applicant has been operating in violation of this and other Conditions continuously for many years. I have complained dozens of times directly to the Applicant itself and to the SMPD, who told me on those multiple occasions that it would visit the Applicant, and I told such fact to the Planning Division multiple times. Claims made by the Applicant that it has been a good neighbor and that its proposal is compatible with the neighborhood and that it is in compliance with the 1996 STOA and the Zoning Code are duplicitous and misleading. The Staff Report ignores contrary facts and describes a glossed over and falsely positive depiction of the Applicant’s responsiveness and treatment of its neighbors.
The Applicant is currently and has been violating this condition in numerous ways for many years. The Applicant’s high-powered lights shine onto neighboring properties.
The Applicant has been making loud noises, using its sound amplification system excessively and at high volumes. Some of its children shriek very loudly at random times that far exceed normal school playground noise, and which was very unlikely to have been picked up by the dubious noise study. Applicant’s staff leads organized cheering, and they hold organized activities, which generate elevated levels of noise and which was unlikely to have been registered by any controlled noise study that may have been conducted. On a daily basis, the Applicant organizes several dozen motor vehicles to block traffic by double-parking on San Vicente Boulevard, lining backward and wrapping Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
11 around 4th Street, and then wrapping again around Georgina Avenue with a long line of double-parked cars extending for many hundreds of yards through a residential neighborhood. In so doing, Applicant causes substantial hazards and dangers to local pedestrians (including children and babies in carriages), vehicles (both moving and parked), and animals. On a daily basis, the Applicant imposes its excessive and weighty staff upon the neighborhood’s limited parking resources because it deceived the Planning Commission 25 years ago when it applied for the permits that it currently operates under by claiming that it would only grow to a staff of 32 instead of its current staff level of 80. (See attached Letter from Arthur L. Kassan, Consulting Traffic Engineer, to Ronald K.
Fuchiwaki, City Parking & Traffic Engineer, dated 6/13/1995, at 1; and see supra, at 8.) Yet, the Applicant was able to obtain substantial relaxation of parking requirements by misleading the PC1996, by telling it that the Applicant would only grow to a staff level of 32 people, and thus it has substantially insufficient parking to meet the needs of its staff of 80 people. (See id.)
Also, on a daily basis, the Applicant’s staff and students and their parents trespass on Applicant’s neighbor’s property. Code Enforcement has now been informed of some of these violations of this condition, but it is busy now dealing with the current state of emergency.
The Applicant planted trees that have grown tall and thick along the western perimeter of its property, which shed substantial amounts of bark, leaves, twigs, flowering and other reproductive pods, and small branches into the swimming pool where I swim on a weekly and daily basis, year-round, thus causing an invasive nuisance. The pool is often covered with disgusting and decaying organic materials that fall from Applicant’s trees, creating an unsanitary condition in the swimming pool, sometimes rotting for several days. Much of this organic material sinks to the bottom long before the pool maintenance service cleans it up. This is a health hazard and creates substantial discomfort to the Applicant’s neighbors.
Validity of Permits
Condition # 31. Applicant need not receive an “order to comply” or “notices of violation” for this condition to prevent the Planning Commission from granting further entitlements. This condition says that if the Applicant “fails to comply with any conditions of the [1996 STOA], no further permits, licenses, approvals or certificates of occupancy shall be issued until such violation has been fully remedied.” As this document describes, the Applicant is in violation of numerous Conditions of the 1996 STOA. I presented such documentation and proof to the Planning Commission that the Applicant was not in compliance of the 1996 STOA and CUP. Therefore, the Planning Commission should not have approved the Applicant’s application.
Special Conditions
Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
12 Condition # 36. The Planning Division assured me that the Applicant has not received approval of any modifications nor has the Applicant applied for any modifications to their 1996 entitlements by or to any division or department, including the Architecture Review Board. However, the Applicant has hedges along the front and western side of its parcel that also function as a wall, and that violate height limitations. (See SMMC 9.21.050; see also attached photos.) The Applicant also has trees that were planted so close together and have grown so thick along its western perimeter that they function as a hedge and as a de facto wall, and that violate height limitations. (See id.) These trees also block light from entering the windows of neighboring buildings, and thus harming Applicant’s neighbors.
Condition # 39. Please see my statements related to Condition # 25, (under the heading, Miscellaneous Conditions), describing how the Planning Division is not functioning impartially regarding the Staff Report and this application and has been made aware that the student pick-up and drop-off system that the Applicant uses on a daily basis causes dangerous hazards to life and property by organizing several dozen motor vehicles to block traffic by double-parking on San Vicente Boulevard, lining backward and wrapping around 4th Street, and then wrapping again around Georgina Avenue with a long line of double-parked cars extending for hundreds of yards through a residential neighborhood.
Condition # 49. As discussed above, this Condition, which required that the Applicant install extra thick windows in the adjacent building to the west, demonstrates how the building to the west of the Applicant’s parcel would be impacted with noise at a very high level and that this Condition was designed to mitigate such impact. However, this Condition only mitigates on cold and cool days when it is tolerable to keep the windows closed during the day. This Condition does nothing to mitigate on warm and hot days, which is approximately half of the time during the normal school year and virtually all of the days during the summer session and when the Applicant holds events during the summer and on hot days. Despite the planning staff and the Applicant having been notified as to this crucial problem well in advance, the Staff Report and the conditions of approval do not address this crucial quality of life issue for the Applicant’s neighbors relating to the warmer months. The noise conditions generated by the Applicant are already unreasonable and intolerable during the warmer months and with this proposal, the City would allow the Applicant to compound the already excessive noise that it generates. The Applicant is not a small pre-school, nor is it a school buffered by streets between neighbors. The Applicant directly borders residential neighbors on both sides and only a narrow alley separates it from its residential neighbors in its rear.
Condition # 56: The issues presented in the 1996 STOA should be revisited, or the Applicant fails to satisfy this condition. The level of noise that the Applicant produces, almost continuously throughout the day, is excessive. If this condition is effective then the Applicant is not satisfying this condition. If this condition is not effective then it would be best if the Applicant should be required to concentrate recess and plan times Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
13 and at regular times so that neighbors would only be adversely affected by noise at limited times during the day, particularly during the warmer months.
The Applicant should concentrate loud outdoor activities to one or two hours per day at regular times, and then make the school grounds quiet the rest of the day. That way the whole day wouldn’t be disrupted and neighbors could then organize our time much more productively. Such change in these conditions, particularly during the warm and hot months when it is necessary to keep the windows open, would probably solve many problems.
Such condition would reduce the number of hours that neighbors are adversely affected, while only increasing the relative noise slightly during the concentrated noise periods.
During those limited hours neighbors could close their windows or find alternative adjustments, rather than having noise forced upon them throughout almost the entire day.
This concern is particularly at issue as society adjusts towards a work-from-home system.
Having such an intense noise generator nestled amongst numerous residences is completely incompatible. The Applicant should not be permitted to increase its noise generating capacity, which this proposal does. Instead, the Applicant should be required to reduce its noise generating capacity.
Condition #57. The Applicant fails to satisfy this condition.
Condition # 59. In Attachment G, the Annotated 1996 STOA, the Applicant admits that it defied this Condition and disrespected the Planning Commission and the City by unilaterally tearing out its grass – that it is required to have and maintain – and replacing it with artificial turf that, instead of emitting fresh oxygen as grass does, emits harmful noxious fumes that adversely affect the health of its neighbors and caused my dear sweet mother to suffer and contributed to her demise. The Applicant apparently misled the Planning Commission and the public again, here, by rationalizing and not disclosing the real reason the Applicant replaced the required grass with artificial turf: so that the Applicant could produce noisy outdoor activity all day long instead of only on a limited basis. The Applicant has admitted that it is – and has been for many years – in violation of this condition of the 1996 STOA; Condition #31 prohibits the Applicant from receiving any additional entitlements “until such violation has been fully remedied,” which it has not (with respect to this Condition #59 and other Conditions); and therefore, the Planning Commission should not have approved the Applicant’s proposals.
Condition # 61. The Applicant is, and has obviously been openly defying its CUP for a number of years on a continuing basis, not in compliance with this Condition. This Condition requires that the front yard fence and landscaping shall be “installed and maintained so as not to obstruct a clear view through the fence.” It is plainly obvious to anyone passing by the Applicant’s parcel in the front on San Vicente Boulevard that the view through the fence is completely obstructed. Photos taken six months ago depict that obstructed view. (Please see photos attached to my 5/20/2020 comment letter that were Appeal Form: Attached Sheets for Case No. 20ENT-0275, Appeal by Steven Salsberg of Case Number 19ENT-0250 (CUP); 20ENT0066 (Minor Modification), at 438 San Vicente Boulevard November 18, 2020
14 taken on 5/19/2020.) The view today is still obstructed. I have photos taken on the day of the November 4, 2020 Planning Commission hearing, which prove that the view is completely obstructed. The Applicant is also in open defiance of SMMC Section
9.08.030.F.4., which requires that Applicant’s courtyard “shall be visible and accessible from the sidewalk.” Pursuant to the 1996 STOA, Condition #31, the Planning Commission should not have approved the Applicant’s application because the Applicant was not in compliance with its existing CUP.
Condition # 62. Applicant is not in compliance with this Condition, which requires that it “provide periodic reports regarding compliance with [the 1996 STOA] conditions.” The Planning Division told me that it provided me with the entire file relating to Applicant’s 1995 – 1996 application for entitlements and all documents related to the Applicant’s current application. While the Planning Division has not provided me with all of the documents that I have asked for, it is clear that I have not received copies of any such period reports. Pursuant to the 1996 STOA, Condition #31, the Planning Commission should not have approved the Applicant’s application because Applicant has failed to provide such periodic reports.
Additional Issues
The process of this application as it was being prepared and when it reached the Planning Commission was not fair to the Applicant’s neighbors and anyone else that may wish to oppose the application. I have requested documents and information from the Planning Division related to this application, which was withheld from me. Some such documents and information that I requested over the course of the past nine months I never received.
Other information and documents I received very late and I was not given sufficient time to process before the Planning Commission hearing. For many of my document and information requests, I had to make multiple requests and waste a lot of time, only receiving some of the information and documents that I requested. As the Planning Division ignored many of my requests for information and documents, it raced to prematurely push this matter to go before the Planning Commission. The process was patently unfair. The Planning Commission also should not have approved the Applicant’s application until I had received all of the documents and information that I had requested and had ample time to review such information and documents.
The Applicant has disrespected and flouted the Planning Commission and the laws of the City by changing the use of a neighboring spacious three-bedroom residential apartment and using it as administrative offices, in violation of the zoning ordinances. Perhaps they concomitantly converted administrative offices on their campus to classrooms without honoring the requirement to gain approval and add parking.