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Hashalom v. City of Santa Monica

November 22, 2010

OR KHAIM HASHALOM, PLAINTIFF AND APPELLANT,
v.
CITY OF SANTA MONICA, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS109848).

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

In this appeal, we are asked to determine whether real property in Santa Monica (the City) owned by plaintiff Or Khaim Hashalom (OKH) qualifies for the statutory exemption from historic preservation provided by Government Code section 37361, subdivision (c). That statute creates an exemption for noncommercial property owned by a religious organization. We hold that OKH's property does not qualify for this exemption because it has always been a commercial enterprise, both when OKH purchased it and at the time OKH sought the exemption. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Property

Known as the Teriton Apartments,*fn2 and constructed in 1949-1950, the property consists of a 28-unit, rent-controlled garden-style apartment complex in a single two- and three-story structure, arranged in a pinwheel or serpentine plan around landscaped courtyards. The Teriton was identified and assessed numerous times in the past under the City's survey process as part of the City's Historic Resources Inventory of potential historic resources. Sellers are required to disclose to potential buyers whenever property for sale is listed on this Inventory.

In November 2005, Teriton Investors, LLC executed a deed granting the property to OKH. Simultaneously, the contractor for Teriton Investors, LLC filed an application for a permit to demolish the building. This application triggered review by the City's Landmarks Commission (the Commission) because of the Teriton's age. At the November 14, 2005 hearing, a representative of OKH testified but made no mention of any religious institution or purpose. The Commission voted to continue the action at the next meeting to gather additional information. However, OKH's representatives soon withdrew the demolition application and so the Teriton was not considered at the next monthly Commission meeting.

2. OKH Incorporates as a Religious Organization

Two months later, on January 26, 2006, Rosario Perry executed OKH's articles incorporating it as a not-for-profit religious corporation. The documents were filed with the Secretary of State on March 6, 2006.

In May 2006, OKH announced plans to demolish the Teriton and construct a new building. On July 10, 2006, the Commission requested preparation of a preliminary historic assessment of the property.

OKH held a public forum in August 2006 where it explained that it planned to use the property to house Jewish refugees from Iran and Iraq. For this plan, it had "an economic model that has not been defined -- that hasn't been finalized. We are looking for subsidized rent. We are looking for donations . . . [and were also] considering the possibility of a few units being condominiums and sold." At that time, OKH was not listed in directory information and its spokesperson declined to answer whether OKH was operating as a synagogue.

On August 14, 2006, OKH submitted a "Notice of Exemption of Property from City Landmarks Ordinance Pursuant to Government Code section 37361."

OKH has never used the Teriton for any purpose other than a commercial rental property, either before invoking the exception under Government Code section 37361, subdivision (c), or afterwards.

3. The Commission's Proceedings

The Commission applied for landmark designation in September 2006, and requested a City Landmark Assessment Report from consultant PCR Services Corporation (PCR). The City's Municipal Code (SMMC) section 9.36.100, subdivision (a) lists the criteria necessary for property to qualify for landmark designation. As relevant here, property will qualify if it (1) "exemplifies, symbolizes, or manifests elements of the cultural, social, economic, political or architectural history of the City" or (2) "has aesthetic or artistic interest or value, or other noteworthy interest or value."

Based on PCR's report, the Commission's staff initially recommended against designation. The staff explained that the Teriton did not appear to be particularly noteworthy, unique or rare, and did not meet the designation criteria to be eligible for landmark designation.

On November 13, 2006, the Commission held a public hearing. Numerous witnesses from the public, including residents of the Teriton, neighbors, preservationists, and architects, testified and submitted articles and pictures into the Commission's record about the characteristics of the property qualifying it for landmark status. The testimony and evidence also identified errors in the PCR report and the report of OKH's consultant, EDAW, Inc.

At the close of the hearing, the Commission unanimously designated the property's structure as a landmark and the real property as a landmark parcel under landmark designation criteria (1), (2), (4), ...


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