Below is a series of e-mail exchanges i had with Santa Monica City Attorney Marsha Moutrie.... I put them in chronological order to make it easy to read. If you want a copy of the 2000 and 2011 Settlement Agreements or Cross-Complaint send me your e-mail. I am happy to share how the City Council and RCB eroded away 38 rent controlled units and converted them to Hotel Rooms.
From: Laura Wilson
To: "marsha.moutrie@smgov.net" ; "rod.gould@smgov.net"
Find out what's happening in Santa Monicawith free, real-time updates from Patch.
Cc: "sheri.batalla@smgov.net" ; "ted.winterer@smgov.net" ; "robert.holbrook@smgov.net" ; "clerk@smgov.net" ; "terry.oday@smgov.net" ; "david.martin@smgov.net" ; "kevin@mckeown.net" ; "pam.oconnor@smgov.net" ; "council@smgov.net" ; "andersonsmpc@yahoo.com" ; "gleam.davis@smgov.net" ; "suehimmelrich@gmail.com" ; "gnewbold@gmail.com" ; "Jim_Ries@hotmail.com" ; "jenniferfkennedy@gmail.com" ; "richard@richardmckinnon.com" ; "parryj@gte.net" ; ralph ; "Editor@smobserver.com" ; "editor@smmirror.com" ; "editor@smdp.com" ; "editor@santamonicalookout.com" ; "ashley@smdp.com" ; "jessica.davis@patch.com" ; "mr.bilbau@gmail.com"
Sent: Monday, July 15, 2013 4:29 PM
Find out what's happening in Santa Monicawith free, real-time updates from Patch.
Subject: 2000 and 2011 settlements embassy v city and 2010 cross complaint for 2011 case
Dear Ms. Mourtrie and Mr. Gould,
In the attached cross compliant the City of Santa Monica contends the Embassy was not a Hotel before 2000 and did not pay any TOT transient occupancy tax prior to 2000.
How can it be a permitted use as a Hotel if it did not exist as a hotel before 2000?
If anything it's a Non-comforming use not a permitted use. Truth is as a Hotel it is an illegal use. The city allowed an illegal conversion to settle the lawsuit and disregarded it's own zoning laws.
The poorly drafted 2000 agreement caused a breach and Ms. Moutrie as the attorney who signed it should not have participated in the 2011 case/settlement agreement. She had a conflict of interest and an outside law firm should have handled the case. Any advice to settle in total disregard for our zoning laws is outrageous.
Laura
From: Marsha Moutrie
To: "'thinkmediation@yahoo.com'"
Cc: Rod Gould
Sent: Tuesday, July 16, 2013 5:10 PM
Subject: Your Questions about the Embassy
Ms. Wilson,
I received your e-mail of 7/15 to Rod Gould and me requesting information about the Embassy’s zoning and the Embassy litigation.
You are correct that the City alleged in its cross complaint that the Embassy was not a hotel before 2000. Unfortunately, there was very substantial evidence to the contrary, which tended to show that the Embassy had operated as a hotel prior to 1995. Thus, the hotel use was grandparented pursuant to Municipal Code section 9.04.08.06.020.
Given the evidence and the law, Council decided to settle the dispute through an agreement that allowed half the units to be used as apartments and the other half as hotel units. This settlement protected the tenants and maintained the residential use of half the premises.
However, years later, The Embassy filed suit to challenge the very settlement agreement which it had voluntarily made as illegal under the Ellis Act. The City opposed the challenge and prevailed in the trial court. However, the Embassy obtained a reversal on appeal. Since the appellate court ruled that the settlement was illegal, The Embassy is no longer required to maintain half of the units as apartments.
Thus, a hotel use on that property is not a zoning code violation (because the use is grandparented); and the 2000 agreement’s drafting did not cause “a breach”. Instead, the court ruled that state law prohibited the City from entering into any deal that abrogated The Embassy owner’s Ellis rights.
I hope this information helps to answer at least some of your questions
Best,
Marsha Moutrie
City Attorney
From: Laura Wilson
To: Marsha Moutrie ; "rod.gould@smgov.net" ; "council@smgov.net" ; "kevin@mckeown.net" ; "sheri.batalla@smgov.net" ; "ted.winterer@smgov.net" ; "terry.oday@smgov.net" ; "robert.holbrook@smgov.net" ; "gleam.davis@smgov.net" ; "pam.oconnor@smgov.net" ; "clerk@smgov.net" ; "stephen.lewis@smgov.net"
Sent: Tuesday, July 16, 2013 7:19 PM
Subject: City Attorney Ms. Moutrie.... my response to your e-mail about the Embassy
Ms. Moutrie, Mr Gould and City Council Members,
Thank you for your response to my inquiry about the legal status of the Embassy Apartments.
What evidence did Embassy provide that they are a hotel? They had the burden of proof. What proof did they supply to the City?
In short, your attempt to spare the Embassy residents from eviction has resulted in an illegal conversion of a Residential Apartment House. That conversion to a full scale hotel with, noisy valet service, and restaurant/bar with a total of 70 seats (16 below my bedroom window) has destroyed an entire neighborhood and the quality of life for those who live here.
Sorry, Ms. Moutrie, you dropped the ball on this one. And should not have participated in the 2011 settlement agreement. You had a conflict of interest and needed to see the case settle. You should not have been the attorney to advise the City Council on this. The 2011 settlement was all decided behind closed doors to protect the wrong people here.
Just be honest. You all agreed to the 2000 conversion with the idea you were saving the tenants at that time from the Ellis Act. Not, because the evidence said the Embassy was a hotel. The contrary is true in the evidence i have found. And then Ms. Moutrie failed to draft a contract with enforceable language. There in lies the conflicts.
Again, in the 2011 agreement, what you tried to do is protect the current residents from eviction. This i understand. It gave them 4 years to stay in their homes and that was the trade off for the conversion. However, this does not follow the law and the 2011 settlement agreement to allow the conversion is illegal. The units should have remained empty 5 years under Ellis laws and then re-rented as residential units not converted to a hotel. And, certainly not without notice to surrounding residents and property owners.
My reading of the court ruling is that the city did not claim the Embassy had received a "direct financial contribution" in exchange not to Ellis the building. The basic 101 principle learned in the first year of law school is consideration. The settlement said the Embassy paid appox 62k in back taxes and that that was how much they owed. Here is the big mistake in the contract. You know they owed more. In the cross complaint of the RCB i think they said the amount owed was about 175k?
The 2000 settlement failed to reflect the forgiving of taxes in exchange for the Ellis Act waver. Although, I'm sure this was a problem too because cheating tax payers to protect tenants from the Ellis Act is probably illegal too.
And, if the 2000 settlement agreement was illegal then the 19 units that were converted in exchange should have been converted back to the original use.... As rent controlled Apartments.
And, even if, the 19 units that were converted to hotel rooms could not be converted back to residential, it does not justify full conversion to a hotel. But you had a vested interest in settling the case and thus did so in an illegal manner. You did not follow SMMC laws. You ignored them in both agreements.
The fact the city lost in court does not give a valuable or legal reason to convert the Rent Controlled units into a full scale hotel. All it does was allow the Embassy Owners to Ellis the residential units nothing more..... And you still could have fought this and should have. But, you feared exposure of the poorly drafted 2000 agreement and litigation cost. And settled to avoid both.
What evidence did the Embassy present they are a hotel? The evidence that i see tells a story of a residential elegant apartment building. Sounds like someone failed to do basic due diligence. The fact that the Embassy owners illegally rented a FEW rent controlled units as hotel rooms is NOT evidence that it is a legal hotel. You rewarded them for illegally renting of hotel rooms when the property was never zoned or permitted for that purpose and they never paid taxes as such.
The evidence i see.....
The original Building permit from 1927 is for a residential property.
The building has always been zoned Residential and never commercial.
All recorded sales of the Embassy are as a residential multifamily apartment. NOT a hotel or Commercial property.
In 1995 the owner claimed in building permits the building is residential over and over. And if you got insurance records for damage from the earthquake i'm sure that would say residential all over it.
Before the 2000 settlement agreement The Embassy paid no (TOT) transient occupancy tax. How can it be a hotel if it paid no taxes as one? This evidence alone is sufficient the Embassy failed to operate as a legal hotel.
Historical documentation identifies the Embassy as an "Elegant Apartment Building".
In 2003 the Embassy owners in its application to become a historical landmark fought be to more residential then hotel.
Thank you
Laura
From: Laura Wilson
To: Marsha Moutrie ; Rod Gould
Cc: "council@smgov.net" ; "kevin@mckeown.net" ; "sheri.batalla@smgov.net" ; "ted.winterer@smgov.net" ; "terry.oday@smgov.net" ; "robert.holbrook@smgov.net" ; "gleam.davis@smgov.net" ; "pam.oconnor@smgov.net" ; "clerk@smgov.net" ; "andersonsmpc@yahoo.com" ; "suehimmelrich@gmail.com" ; "Jim_Ries@hotmail.com" ; "parryj@gte.net" ; "jenniferfkennedy@gmail.com" ; "gnewbold@gmail.com" ; "richard@richardmckinnon.com" ; "stephen.lewis@smgov.net" ; "david.martin@smgov.net"
Sent: Wednesday, July 17, 2013 8:53 AM
Subject: Law you quoted has been violated. 9.04.08.06.020 explanation provided
Ms. Moutrie and Mr. Gould,
To expand on the zoning code 9.04.08.06.020 legal issue: Whatever "very substantial evidence to the contrary" may have been found by the city, that evidence would have shown that concurrently with hotel units were also rental apartments. Thus even if the embassy apartment / hotel has now expanded its then-use by a single apartment, that expansion would be forbidden by SMMC zoning code 9.04.08.06.020. The complete law is provided below.....
Additional Land Use Regulations for the R2, R3, and R4 Districts referenced in Table 9.04-1:
(a) Hotels in existence as of January 1, 1995, or their replacement with a new hotel at an existing hotel site in conformance with the physical development standards in effect at the time of such replacement and located in a R2 or R3 zone in an area bounded by the centerline of Ocean Avenue to the west, the centerline of 14th Court to the east, the centerline of Wilshire Boulevard to the south and the centerline of Montana Avenue to the north, and including those R2 and R3 parcels on the north side of Montana Avenue within the east and west boundaries, provided:
(1) There is no increase in the floor area of the hotel after January 1, 1995;
Turning rental apartments units into hotel rooms is an increase in floor space. Also expanding the lobby, front garden and back patio into a restaurant and lobby lounge bar when it NEVER was used for that purpose is also an increase in floor space that violates the law you quoted. This law has been violated.
(2) Any increase in the number of rooms is accomplished through subdivision of rooms existing on January 1, 1995 and does not exceed twenty-five percent of the number of rooms existing on January 1, 1995, or fifteen rooms, whichever is less; and
The expansion was over 100% thus the expansion violates this provision of the law. And the addition of 19 hotel rooms exceeds the number allowed under this provision of the law. Thus, this law has been violated.
(3) All other Zoning Ordinance requirements are met, including parking requirements for any addition of rooms after January 1, 1995. If a parking variance is requested, the applicant shall be required to submit a parking analysis which demonstrates that the increase in guest rooms will not result in an adverse parking impact to the surrounding neighborhood.
The Embassy has ONE parking space and they cannot possibly meet the parking requirement under this provision. Additionally, the applicant did not submit a parking analysis as required by this law. This requirement has not been met and has thus this law been violated.
Additionally, under the law you quoted hotels with incidental businesses are not allowed. A valet service and the restaurant cafe / bar are both incidental businesses. If the hotel existed before 1995 and did not have or use the building in that manner then the addition is unnecessary and thus incidental business.
After 1995, in 2003 the Embassy asserted and fought vigorously to be more residential then hotel in it's application to become a historical landmark and they made claim that they were 19 rental units and 19 hotel units and said they did not have a lobby lounge, restaurant or banquet facilities. Thus, the expansion of any of those activities into the floor space of the building violates the law you quoted.
The Embassy should be held to the STATEMENTS, CLAIM OF USE, DISCRIPTION of the PROPERTY and the USES and NON-USES that The Embassy expressed, recognized and testified to in its application to become a “Historical Landmark”.
The Embassy may not make a claim of right or exemption to zoning laws as a Historical Landmark that it fought vigorously to maintain or relinquished in its application to become a Historical Landmark.
In the application for Historical Landmark status the Embassy asserted:
“The Applicant further Requests that the Commission refrain from designating or identifying any interior features of the Embassy in accordance with Section 9 36 100 of the Landmark & Historic District Ordinance which only allows designation of interior spaces “regularly open to the general public” The Embassy clearly lacks any such interior spaces.
More particularly the interior of the Embassy generally consists of residential and guest unit corridors support spaces for the Embassy personnel and a lobby area that (unlike some hotel lobby areas) is not regularly open to the general public The Embassy lacks the type of public spaces commonly associated with hotels (as opposed to apartment hotels) such as restaurants banquet facilities, meeting rooms or a lobby that serves as a public gathering place. For the privacy of the Embassy’s Residents and guests, and in recognition of its mixed-use character as both a resident-serving and a visitor-serving facility the Embassy does not allow the general public access to any of its interior spaces.”
The Embassy has expressed its NON-USE of the Lobby as a gathering place. Thus, the expansion of use as a hotel lobby lounge restaurant cafe bar is illegal.
SEE 9.04.08.06.020 Allowed land uses.
From: Marsha Moutrie
To: 'Laura Wilson'
Cc: Council Mailbox ; Kevin McKeown Fwd ; Ted Winterer ; Terry O’Day ; Robert Holbrook ; Gleam Davis ; Pam OConnor ; Rod Gould ; David Martin ; Joe Trujillo ; Yibin Shen
Sent: Wednesday, July 17, 2013 10:44 AM
Subject: RE: Law you quoted has been violated. 9.04.08.06.020 explanation provided
Ms. Wilson,
Thank you for sharing your reasons for concluding that The Embassy’s operations violate local law.
Because part of your e-mail conveys a complaint about conformance with the Zoning Code, I am including the persons responsible for assessing code violations in this response.
I’ll let you know if we have anything to add about the law or about the City’s settlement long-running dispute with The Embassy’s owners.
Marsha Moutrie
From: Laura Wilson
To: Marsha Moutrie ; "parryj@gte.net" ; Rod Gould ; Pam OConnor ; Yibin Shen ; Gleam Davis ; "stephen.lewis@smgov.net" ; "richard@richardmckinnon.com" ; "gnewbold@gmail.com" ; "jenniferfkennedy@gmail.com" ; "andersonsmpc@yahoo.com" ; David Martin ; Terry O’Day ; Council Mailbox ; Joe Trujillo ; Ted Winterer ; "Jim_Ries@hotmail.com" ; Robert Holbrook ; Kevin McKeown Fwd ; "suehimmelrich@gmail.com"
Sent: Wednesday, July 17, 2013 1:11 PM
Subject: who is responsible Ms. Moutire? Embassy code violation and conversion.
Dear Ms. Moutrie and whom ever is responsible for assessing code violations and or the illegal conversion of The Embassy Apartments to a Hotel,
I'm confused......
I still have not been provided the evidence of proof the Embassy was a hotel before 1995. I shared my evidence to the contrary and you have provided nothing to contradict that evidence.
Can you please provide the evidence and explain how and why it supports your claims below?
1. The hotel use was grandparented pursuant to Municipal Code section 9.04.08.06.020.
2. The hotel use on that property is not a zoning code violation (because the use is grandparented)
What does that mean..... the persons responsible for assessing code violations? Did you not assess the legality of the 2011 settlement agreement before you signed it on behalf of the city?
Also, while in a meeting with David Martin he said the City's legal dept. (I'm assuming thats you, please tell me if it's someone else) advised the planning dept. on the legal status of the Embassy. Mr. Martin said the City's legal dept. per the 2011 agreement claims the hotel is a "permitted use". That we all know is impossible when the proper SMMC laws are applied!
It was my understanding the property was a "legal nonconforming" use. However, because the City's illegal 2011 settlement agreement with the Embassy the hotel use is a permitted use? Can you explain this? Certainly the 19 rental units illegally converted in the 2011 Settlement agreement are nonconforming and the Lobby conversion is a nonconforming use. Is it not? What is your assessment of the legal status of the property and why?
Also, i'm confused as to whom decides the legal status of the embassy. Can you clarify who decides the legal status of the Embassy? How are they required to decide? Are they not required to follow the SMMC?
It seems pretty cut and dry to me. The SMMC were severely violated for the property owners and the effect has been the destruction of a neighborhood and substantial loss of rent controlled units. All done in violation of the laws of our City.
In addition, you should know that no application for the exemption was filed with the RCB. RCB failed to follow the most basic procedures for removal and exemption.
Also, no notice was provided to any residents or property owners in close proximity to the Embassy that it was changing its status and mode operation. It was not until the notice for the CUP was posted that anyone near by knew of the changes about to happen in our neighborhood.
Laura
From: Marsha Moutrie
To: 'Laura Wilson'
Cc: Rod Gould
Sent: Wednesday, July 17, 2013 4:26 PM
Subject: The Embassy's Operation
Ms. Wilson,
I have asked Chief Deputy Alan Seltzer to provide a further response to your inquiries and complaint regarding the litigation involving The Embassy and its operations. Alan heads the Municipal Division of the office and handled the most recent litigation about the Embassy.
Right now, Alan is working on land use issues that are before the Planning Commission and heading to Council. He will respond when he can.
Also, as to your complaints about The Embassy’s recent and current operations, the tenant harassment complaint is being handled by the Consumer/Fair Housing Unit of the office, with help from the attorney who does code enforcement. Their investigation and assessment is ongoing.
Best,
Marsha Moutrie
From: Laura Wilson
To: Marsha Moutrie
Cc: Rod Gould ; "council@smgov.net" ; "kevin@mckeown.net" ; "sheri.batalla@smgov.net" ; "ted.winterer@smgov.net" ; "terry.oday@smgov.net" ; "robert.holbrook@smgov.net" ; "gleam.davis@smgov.net" ; "pam.oconnor@smgov.net" ; "clerk@smgov.net" ; "joe.trujillo@smgov.net" ; "Yibin.Shen@SMGOV.NET" ; "david.martin@smgov.net" ; "alan.seltzer@smgov.net"
Sent: Wednesday, July 17, 2013 5:15 PM
Subject: Re: The Embassy's Operation Funny....
Ms. Moutrie,
Funny.....
Now you will pass me on to Chief Deputy Alan Seltezer? Without providing me even the most basic proof of law or evidence you claim justifies the agreement for Conversion of the Embassy Apartments? You signed the 2011 Settlement Agreement. Why can't you answer my questions about it?
I have been passed from one City dept. to the next over and over again. And each place says it's someone else who decides or is responsible. Now, i understand why so many people are frustrated with the City. No one at the City gives a straight answer and everyone passes the buck. The intent is the wear the residents out and hope they just go away.
The commercial business illegally operating below my bedroom window is not going away and neither am I.
All the city staff does when they push me off to another person or dept. is fuel my fire to expose this outrageous conduct.
Thank you for passing me off once again!
Laura
From: Marsha Moutrie
To: 'Laura Wilson'
Cc: Rod Gould ; Council Mailbox ; Kevin McKeown Fwd ; TedWinterer ; Terry O’Day ; Robert Holbrook ; GleamDavis ; Pam OConnor ; DavidMartin ; Alan Seltzer ; Yibin Shen
Sent: Wednesday, July 17, 2013 5:31 PM
Subject: RE: The Embassy's Operation Funny....
Ms. Wilson,
I am neither hoping that you will go away nor ignoring you. Responding to residents’ questions is part of our routine workload. And, we are happy to do that work.
You have sent a number of e-mails in the last couple of days, and I have personally responded to several of them.
As to delegating your latest inquiries about the litigation history to Mr. Seltzer, he is the attorney in the office most knowledgeable about the recent Embassy litigation. And, generally speaking, I only have the time to respond personally to those inquiries that I can answer rapidly. Otherwise, I delegate the task to others, as I have done in the case of your inquiries about the litigation history.
Marsha Moutrie
