A 3-Foot Fight: Hermosa Beach Homeowner Wins Appeal in Disputed Height Calculation

A Hermosa Beach property owner won a procedural victory Tuesday night when the Planning Commission unanimously overturned a staff decision that would have effectively capped the height of his planned home three feet lower than comparable properties on his block — the result of a new interpretive standard applied to his application without notice after it was already in process.

The 5-0 vote in favor of David Toomey, who owns a vacant lot at 333 26th Street and intends to build a primary residence there, hinged not on whether his lot was convex — commissioners largely agreed it was — but on whether the city could fairly change the rules in the middle of his application.

What a Convex Slope Determination Does

In most of Hermosa Beach, building height is measured from an interpolated grade line — essentially a straight line drawn between a lot's corner elevations. But for lots where the natural terrain arches upward between those corners, the city's municipal code allows a different approach: measuring height from the actual contour of the land, which can add meaningful vertical allowance at the lot's high point.

The city adopted the convex slope provision in 1994 specifically to avoid penalizing owners of dome-shaped lots, common in a city built on coastal dunes. In practice, the determination has been applied by staff and confirmed by the Planning Commission for at least 15 years, requiring applicants to submit a detailed topographical survey at two-foot intervals and a soils report to establish how much, if any, fill soil has been added over the natural grade.

Toomey did exactly that. His survey showed the lot rising in a dome shape along both property lines, with an apex roughly in the middle. His soils report, based on seven boring samples at locations specified by city staff, documented approximately a half foot of fill at the crown. Under the historical methodology, that would support a convex slope determination and allow him to measure building height from the natural arched grade — gaining roughly three feet of allowable height at the lot's midpoint compared to the straight-line method.

The Denial

The Community Development Director denied the application in January on two grounds. First, she found the survey did not show a sufficiently pronounced arch along the property line. Second — and more consequentially — she found that because Toomey's proposed home includes a basement requiring excavation of up to 12.5 feet, the construction itself would eliminate the lot's convexity. Granting a height bonus based on a topographic feature that the development would immediately destroy, staff argued, was contrary to the intent of the provision.

Staff also introduced a new numerical threshold: a slope of roughly 10 percent or greater to potentially qualify as convex. Toomey's lot has a slope of 16 percent at its steepest segment — which would seem to clear that bar — but staff said the post-excavation condition brought it back below the standard.

The Appeal

Toomey's representatives, surveyor Brandon Straus and attorney Frank Sandeman, mounted a two-pronged challenge. On the merits, they argued the lot plainly meets the code's definition of a convex contour and that prior Planning Commission approvals had recognized similar — and in some cases lesser — convexity on nearby lots. Straus presented examples of 20 previously approved convex slope determinations, none of which matched the diagram staff cited as the standard, and at least one of which was located a single block from the subject property with a smaller slope than Toomey's lot.

On process, Sandeman argued that the new standard — tying the determination to proposed post-construction grade rather than existing natural grade — was introduced after Toomey filed his application in November and was never communicated to him. The denial letter predated the point at which staff even proposed the new approach to the Planning Commission. "The rules need to be there for everybody," Duffy said, "and everybody needs to know what the rules are."

Toomey himself addressed the commission briefly, describing himself as a future full-time resident relocating from Dallas who had engaged in good faith with city staff from the outset, attending a pre-application meeting and soliciting guidance on the soils analysis methodology. "We've tried to be good, respectful collaborators throughout this process," he said, asking the commission to follow the 15-year precedent his application relied upon.

Commission Response

Commissioners were largely sympathetic — and notably candid about their discomfort with the new standard.

Chair Steve Izant framed the situation directly: the commission was looking at a 33-foot house in a 30-foot zone, which he initially called "a creative way to exceed our zoning" before being corrected by colleagues who noted that the convex slope provision is itself part of the zoning code. He ultimately supported the appeal on fairness grounds, saying it was not appropriate to apply a new interpretation retroactively.

Commissioner Hoffman said he was troubled on multiple fronts. He agreed the lot appeared convex under the criteria the commission has historically applied. He also acknowledged the director's expertise and said the post-construction analysis had conceptual merit — but said applying it to an application already in process was the wrong way to implement a policy change. "I'm concerned that we're applying it to an application that was retroactively being considered under a new criterion," he said, adding that he would welcome a formal update to the standards going forward.

Commissioner Hirsch said the lot appeared to comply with what the commission has seen in prior convex slope cases and that changing the rules quickly on an in-process application was difficult to justify. She called for clarification of the policy going forward.

The vote to grant the appeal and approve the convex slope determination was unanimous.

What It Means

For Toomey, the practical effect is roughly three additional feet of allowable height at the midpoint of the proposed home — the difference between a building that tops out at approximately 33 feet at its peak interior measurement and one capped at 30 feet throughout.

The broader implication is that the city's convex slope process — which has operated largely on institutional memory and case-by-case precedent for three decades — is due for a formal rewrite. Multiple commissioners said Tuesday they want updated written standards that are transparent, consistently applied, and prospectively noticed to applicants before they are enforced. The Community Development Director's office did not indicate a timeline for that work.