Tentative ruling goes against San Anselmo Councilman Greene in fight over apartment

Tentative ruling goes against San Anselmo Councilman Greene in fight over apartment By Richard Halstead 24 Mar 2015, 05:02 PM San Anselmo Councilman Ford Greene has been fighting the city over zoning laws related to his apartment. San Anselmo Councilman Ford Greene appears headed toward a third strike in his bid to continue living in the basement apartment of the building he owns without making substantial alterations to the structure. Marin Superior Court Judge Paul Haakenson issued a tentative ruling last week denying a request by Greene to overturn a decision issued by Administrative Law Judge David Benjamin in May. Haakenson, who issued a tentative ruling Thursday, heard oral arguments Friday and is expected to issue a final ruling soon. At issue is whether Greene is violating the town’s zoning laws by living in the basement apartment of his building at 711 Sir Francis Drake Blvd. “Because Judge Haakenson has taken the matter under submission, I have no reaction at this time,” Greene said. “I will reserve any comment until he rules.” The San Anselmo Planning Commission ruled against Greene in February 2013. When Greene appealed that decision to the Town Council, the council hired Benjamin to serve as its surrogate, fearing Greene might sue the town if the ruling went against him. After reviewing 1,500 pages of documents submitted by the town and another 1,900 pages from Greene, and listening to hours of oral arguments, Benjamin rejected Greene’s appeal. Benjamin said that in order for Greene to prove that his basement apartment is a legal, nonconforming use he must show that it was being used for residential purposes legally on Feb. 26, 1991, when a new zoning law prohibiting residential use in that area took effect. Benjamin wrote, “Appellant has not met this burden.” In his tentative ruling, Judge Haakenson reached the same conclusion. Haakenson wrote that “the ultimate question” in court is “whether the basement unit was lawfully ‘used’ as a residential unit on February 26, 1991 prior to the ordinance becoming effective.” Haakenson said such “use” can be demonstrated either by physical occupation of a unit or by the design of the unit. As for Greene occupying the unit prior to 1991, Haakenson cited Greene’s sworn declaration that he moved into the basement in 1993. Haakenson also said that as recently as 2013-14 the tax assessor’s roll identified only two residential units in the building — both of which are on the second floor of the building and have been deemed legal, nonconforming. Basement as residence Haakenson said Greene argued that his basement was a residential unit based on its “design” as a residential unit in the early- to mid-1900s, and has been maintained through the present date. The basement is equipped with a kitchen and bathroom. However, Haakenson said, presence of a kitchen and bathroom does not necessarily mean that the structure was designed for occupancy as living quarters. He said a kitchen and bathroom are simply minimum requirements for any residential unit. In addition, Haakenson wrote that Greene’s assertion that the basement is forever defined by its “design” at the time it was built is unreasonable in light of the language of the town’s zoning ordinance. “The town could not have intended that a nonconforming use continue indefinitely, as petitioner urges, so long as the physical structures of the kitchen and bathroom remain unchanged,” Haakenson said. “This would result in absurd consequences as noted by respondent.” Expensive fight Town Manager Debbie Stutsman said to date the town has spent about $150,000 attempting to get Greene to conform with San Anselmo’s zoning laws. The town paid the administrative law judge $20,000 for his work and has spent another $130,000 on outside legal counsel. Stutsman said it was necessary to hire outside counsel because “our town attorney represents the council as a whole, so it would be a conflict of interest for him. It’s a little more expensive because the hourly rate is higher.” Greene has already been granted a conditional use permit that will allow him to continue living where he is if he makes necessary changes. Those changes, however, figure to be costly. In his tentative ruling, Haakenson stated that “building and fire officials determined the basement does not comply with building codes requirements for habitable space, the main ingress/egress is too low, the ceiling height is noncompliant, and there is not enough light for a living space.” In his decision, Benjamin said necessary alterations include installation of a fire sprinkler system throughout the building, installation of a fire alarm system and the raising of ceiling heights in the basement. by TaboolaSponsored Links From The Web 7 Skills Your Grandparents Had That You Don’t World Observer Online The often overlooked method to pay down credit card debt NextAdvisor 42 Pieces Of Life Advice That’s Never Too Late For Anyone To Know GoWeLoveIt.info Aruba Networks CEO Dominic Orr Says Businesses Must Prepare for the “Gen Mobile” Workforce — BizTech BizTech by CDW David N. Swaim Tam Realty Inc Owner DRE#1070789 415-710-5504 609 San Anselmo Ave San Anselmo CA 94960 www.tamrealty.com Serving all of Marin County

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