By Lester Tobias, Architect
ABSTRACT
In 2004 the City of Malibu began accepting and reviewing applications for building permits under the new LIP, written by the California Coastal Commission. This new planning code is much more restrictive than the old Municipal Zoning Code (the IZO). Its review process is significantly more time consuming and expensive than the previous code.
It was understood at the time that this new code would apply to all new residences, and most projects on bluffs and in ESHAs.
It was also clear at the time that many projects consisting of additions and remodels would be exempt from the LIP, and would be allowed to be reviewed under the municipal code. This process saved homeowners time and money.
At the same time, several conflicting sections, subsections, and definitions pertaining to exemptions were haphazardly inserted into the LIP.
Initially, the planning staff was amenable to the overarching exemption section of the LIP. This allowed for most homeowners to proceed with additions and remodels with relative certainty as to the timelines for permitting and cost of this permitting. It allowed for local architects and expediters to speak with some authority about what could and could not be done to existing homes.
Over the past 18 months, the planning staff has incrementally become less willing to exempt projects. Not only are they directing more and more projects out of the overarching exemption, they are reinterpreting portions of the LIP to essentially force every addition to obtain a coastal development permit. Specifically, they are focusing on what is commonly known as "the 50% rule". This has created noticeable hardship among homeowners, their architects and consultants.
WHERE'S THE BEEF?
Nobody seems to know who is driving this regulatory crackdown. The planners who are involved in the "clarification" of these exemptions claim that it is in response to neighbor complaints, yet most of these complaints, when analyzed, end up being unjustified. Some claim that they are compelled to follow the code, yet the code, as written, clearly is not being followed, and it can be shown that Coastal does not even apply these draconian interpretations to their own codes. Some building officials claim that contractors are being stopped in the middle of construction for removing more than 50% of the existing exterior walls of permitted exempt projects, and being required to cease all construction until a CDP is obtained, but this apparently has happened on only 3 or 4 occasions.
Certain planning staff, planning commissioners, and council members accuse some local architects and builders of using the exemption rules to "game" the system. This complaint, however, does not hold up under further analysis. It is a FACT that any addition or remodel that can be built under the LIP is the EXACT SAME project that would be allowed under the municipal code. Setbacks are calculated the same way. Height restrictions are identical. The more restrictive ESHA maps are used. Variances require the same procedures.
What does occur, indeed, is that the more savvy architects and builders use the exemption rule to get projects built in a more timely and cost effective manner, and to be able to give clients an analysis of potential improvement scenarios with relative certainty. There is nothing unethical or illegal about this process.
As the permit process becomes more onerous, it becomes increasingly important for all Malibu homeowners and stakeholders to voice their opinions on this topic. Construction can play a major role in our State's economic recovery. If the ability to obtain a building permit becomes increasingly expensive and time consuming (for no good reason), a recovery will not only be delayed, but may in fact be jeopardized. In addition, it is just plain wrong for a planning department to capriciously create barriers to a reasonably speedy permit process.
EXEMPTED PROJECTS AND THE 50% RULE
LIP Section 13.4.1, entitled "Improvements to existing single-family residences", allows for "Improvements to existing single-family residences" including all fixtures and structures directly attached to the residence and those structures normally associated with a single family directly attached to the residence such as garages, swimming pools, fences, storage sheds and landscaping but specifically not including guest houses or accessory self-contained residential units.
There should be no real debate that a structure directly attached to the residence is an addition. Recently, the planning staff has been reviewing additions and remodels under a different subsection of the code. Specifically 13.4.2, entitled "Repair and Maintenance Activities." Subsection 13.4.2 (D) states, "Unless destroyed by natural disaster, the replacement of 50 percent or more of a single-family residence, (as measured by 50% of the exterior walls), ... is not repair and maintenance but instead constitutes a replacement structure requiring a coastal development permit."
This particular subsection seems to suffer from trying to over-regulate structures that have incurred exceptional, one time, damage. It should not be construed to refer to additions and remodels, yet it is being interpreted in just that fashion.
It is interesting to note that nowhere in the code or its definitions does "replacement structure" appear.
NON-CONFORMING STRUCTURES
Most Malibu homes built before cityhood were built to a minimum side yard setback of between 5 and 10 feet. Under the municipal code (and the LIP), setbacks are much greater. This creates a nearly universal condition where all existing homes are considered to be "Non-conforming" structures.
Subsection 13.5.C states, "...demolition and/or reconstruction that results in replacement of more than 50 percent of non-conforming structures, ..., is not permitted unless such structures are brought into conformance with the policies and standards of the LCP.
If your house has a setback that was legal at the time it was built, but could not be located in the same place under the LIP, and you remove more than half of your existing exterior walls, you have to eliminate the part of your house that is non-conforming. In many cases, it means that you would have to knock your house down and reconstruct it within the new setbacks.
While it would be easy to classify most of the work done to these walls as "alterations" or "improvements" (thereby exempting the project), the planning staff is attempting to define "demolition and reconstruction" to include work as banal as adding a door or window. Imagine having a ‘50's ranch house, and wanting to open up the views by increasing the size and number of doors and windows. Under this type of definition, you would most likely be over the 50% wall limitation, and be forced to remove the non-conforming part of your house (this would most likely mean total demolition).
VOLUNTARY STRUCTURAL UPGRADES
Another typical home improvement project is the voluntary structural upgrade. This is when a homeowner wants to replace undersized headers, add shear walls, or underpin settling foundations. The planning staff is also attempting to include voluntary structural upgrades under a 50% definition, when they could easily leave this type of work under "improvements" and keep it exempt from a coastal development permit.
THE CUMULATIVE EFFECT OF A TYPICAL HOME IMPROVEMENT
If taken individually, the removal of some of the exterior walls to expand the house, or the enlargement of existing doors and windows, or the replacement of sections of walls and foundations may not trigger the 50% Rule. However, typical home improvements include enough of each of these maneuvers to cumulatively kick the project into both the necessity of obtaining a coastal development permit and removing all non-conforming portions of the existing home. An exciting home improvement has become a frustrating, expensive, open-ended nightmare, prompting most homeowners to either take on ever larger bootleg projects (which is in no one's best interest), or abandoning the thought of improvement all together.
WHAT TO DO?
If you believe that the planning department is overstepping their authority, and is harming the economic viability of real estate, architecture, and construction in our City, then you need to let the City Council know how you feel. If you would like further information regarding this issue, please contact:
Lester Tobias
TOBIAS ARCHITECTURE
22221 Pacific Coast Highway
Malibu, CA 90265
310.317.0507
lester@tobiasarchitecture.com
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Sample letter Malibu residents can send to the Malibu City Council at 23815 Stuart Ranch Rd., Malibu:
Dear City Council Member,
As a Malibu homeowner, and member of the community, I write to you in opposition to the pending new limitations on the exemptions to remodels and additions from requiring a Coastal Development Permit. The additional time and cost associated with this type of permit adds yet another hurdle to the all ready unreasonable process we must endure to improve our homes (and add to the City's coffers).
I also understand that the homes most in need of improvements contain varying degrees of construction that, while legal when the homes were built, are now considered "nonconforming", and the requirement to obtain a coastal development permit would necessitate the removal of the non-conforming construction, adding further burden and cost where none had previously existed, and where no real harm is being done.
The last year has seen a drastic reduction in property values and the virtual elimination of construction lending. As a homeowner, any home improvement work I may consider in the future will, of prudence and necessity, be far more budget conscious than in the previous decade. The uncertainties brought on by the proposed new analysis of "the 50% rule" will potentially and involuntarily increase the scope of my project to a point where I may be forced to abandon it. This benefits no one, including our City.
After speaking with professionals regarding this issue, I am even more confused as to why the City would be entertaining this notion. It is apparent that exemption from a Coastal Development Permit does NOT allow anyone to build something that could not be built under a CDP. It does NOT exempt neighbor notification for projects above 18 feet in height, or for those requiring modifications, neighborhood standards, or variances.
It merely gives homeowners a simpler and less expensive process by which a building permit may be obtained. It requires less administrative time, and would continue to provide a bit of reasonableness in a historically overregulated segment of our community.
I would request that you would simply direct the Planning Department and the Building Department tofollow LIP subsection 13.4.1, and exempt all additions to existing residences as explicitly noted in that portion of the code. Failing this simple and direct approach, I request that you put this matter on the City Council's agenda as soon as possible for discussion and resolution.
Thank you very much.
