City Hall Putting Its Thumb on the Land Use Scale

PLATKIN ON PLANNING-In the fanciful world of high school and college “civics” and political science classes, government is portrayed as a neutral force blindly balancing many competing interest groups. While a few gullible students might fall for this claim, a quick look at the City of Los Angeles puts this notion to rest. 

When it comes to land use decisions, City Hall places a very heavy thumb on the scale in numerous ways to help real estate developers, while simultaneously placing a host of barriers in the way of community and neighborhood groups. Let us, therefore, take a closer look to see how this game is fixed from the start. 

How City departments place many barriers in the way of community groups. My list is just a start, and I expect that CityWatch readers can supply many more examples: 

  • Most land use decisions are ministerial. These cases are also called by-right decisions, in which applicants only need to comply with the Los Angeles Municipal Code (LAMC). In these situations, the City of Los Angeles’ Department of Building and Safety (LADBS) makes all calls in private. There is no transparency, and it is nearly impossible for local groups or individuals to learn what is proposed for their neighborhood until demolitions take place or construction begins. In fact, it is typical that local residents wake up to the sound of bulldozers, their first indication that the Department of Building and Safety has already approved a project that is breaking ground next door. 
  • The demolition of buildings older than 45 years requires contractors to post a demolition notice 30 days in advance, and also notify City Council offices and nearby residents of the proposed demolition. But few builders comply with this law because they know there are no consequences if they ignore it. Unlike moving violations and parking tickets, the City never enforces this code requirement, even when residents officially submit a code violation to Building and Safety. 
  • When the bulldozers demolish these older structures, the demolition spews lead paint and asbestos into the atmosphere. These toxins are carefully regulated by the South Coast Air Quality Managements District and LA County Public Health. Both agencies require the remediation of these unhealthy pollutants prior to demolition, yet the Department of Building Safety, which issues demolition permits, has no contact with these enforcement agencies. As a result, nearly all demolitions violate State and County health codes, releasing dangerous carcinogens and mutagens, usually next to neighbors totally unaware of what they have been exposed to. 
  • In the rare cases that neighbors want to stop a demolition because of these code violations, it takes several days for either the SCAQMD or LA County Public Health to send out an inspector. By that time it is too late. The contractors have completed the demolition and hauled away the rubble in open trucks, still another code violation. 
  • While neighbors can report code violations directly to the Department of Building and Safety, it is rare that they respond. When they do, they make it clear that they have a three-week response time. Furthermore, in the rare situations when a code violation is actually caught, there are no consequences for developers and contractors. They take the safe bet that they can do what they want and either will not get caught, or if caught, LADBS imposes no penalties on them. 
  • At the heart of this heavy thumb on the scale is the official policy of the Department of Building and Safety, as well as their sister agency, the Department of City Planning, to skip pro-active code enforcement. There is, in fact, no procedure for these employees to proactively report these violations. Instead, the City’s official policy is to only investigate code violations submitted by members of the public, almost all of which are then officially cleared. 

Discretionary land use decisions:  While most land use decisions in Los Angeles are ministerial, the ones that attract the most public attention are discretionary. These are those small percentage of cases in which developers, guided by their accountants, decide to maximize their profits by investing in illegal projects. In these situations, illegal means the projects conflict with the City of Los Angeles’ adopted land use laws. Luckily, the City has made these laws totally porous by providing an escape hatch for every zoning and planning requirement. With a modest amount of effort, real estate investors can circumvent zoning and planning requirements. This, however, is only one digit on the scale since the City really places both hands on the scale to totally tip decisions in favor of real estate speculation. These other mechanisms include the following: 

  • The Los Angeles Municipal Code (LAMC) offers three separate routes through which developers can circumvent the City’s adopted zoning code: The City Planning Commission and then the City Council, City Planning’s Office of Zoning Administration, and the Director of Planning. 
  • In instances where these routes are too cumbersome, developers can pay an extra fee to the Department of City Planning to expedite their applications for zoning and planning waivers. 
  • At this point City Planning approves over 90 percent of all zoning and planning cases, most with conditions. While these conditions may please neighborhoods groups, most are subsequently ignored by City Planning’s enforcement arm, the Department of Building and Safety. 
  • In really tough cases, real estate developers have a remaining option. They can turn to Pay-to-Play.  As carefully researched by the Los Angeles Times during the Measure S campaign, major contributions to elected officials’ campaign accounts and their preferred non-profits curiously produce the zoning waivers developers need to legalize their projects. 
  • While all zoning applications require legal findings through which applicants justify their applications, City Planning has lightened this load by giving a thumbs up to nearly everything submitted to them. Ditto for the City Planning Commission, Area Planning Commissions, and the City Council. They all have an exceedingly low bar for legal findings. 
  • One reason for this permissive approach among elected and appointed decision makers is their background in private sector real estate-related fields, like law. Long gone are the Mayor Tom Bradley days in which he included neighborhood and union representatives in every land use decision-making body. 
  • To further tip the scales for developers, all public hearings and decision-making meetings take place during the day, most at City Hall. Local community people who work or who cannot easily make it to City Hall are placed at a tremendous disadvantage. 
  • While applicants mail out notices for these City Hall meetings, the notices only go to those who live within 500 feet of a project. Furthermore, in some cases, such as Specific Plans, City Planning only sends notices to adjacent property owners. Finally, in other cases, such as Density Bonus/SB1818 and Community Design Overlay cases, there is no notification requirement at all. Planning only mails a determination letter to adjacent property owners. 
  • At decision-making meetings, City Planning staff has the first and last word on all cases, with the public limited to one minute of testimony. In appeal cases, for example, City Planning staff is always invited back to rebut the arguments raised against their decisions, with the public or their representatives not allowed a counter-rebuttal. 
  • Once land use decisions are final, a 14-day appeal period opens up, during which a neighbor could appeal an approval. But, proposals are afoot at City Hall to dramatically increase appeal fees, in some cases from $89 to as high as $13,500.  If the City Council eventually adopts this ordinance, it will eliminate nearly all appeals. 
  • While these barriers all take their toll, the Department of City Planning and the City Council are preparing new ordinances that allow most discretionary projects to become by-right ministerial decision. As this takes place, such ordinances as re:code LA or voluminous appended amendments to Community Plan Updates become law, the number of discretionary cases will dramatically decline. Once this happens, most real estate projects will become ministerial cases invisible to the public until demolition or construction begins. 

Even more barriers:  This list of the barriers to community groups is hardly definitive. But because some dedicated and knowledgeable local groups manage to nevertheless challenge projects, the City Council keeps busy by throwing up new barriers, including the following; 

  • To oil squeaky wheels, the City Council has adopted a long list of small zoning overlay districts, such as Specific Plans, Community Design Overlay Districts, Historical Preservation Overlay Districts, and Residential Floor Area districts. These ordinances are a concession to local residents who have not been successfully sidelined by the barriers described above. Meanwhile, the rest of Los Angeles outside the overlay boundaries, probably 90 percent of the city, remains an easy target for speculative real estate projects. 
  • In 2000 the City Council also adopted a new City of Los Angeles Charter that created Neighborhood Councils. Unlike the hundreds of community groups that already existed in Los Angeles, these new Neighborhood Council are linked to City Hall. Furthermore, according to the Charter, these Councils must have representatives from local businesses, local property owners, local employees, and local institutions, such as hospitals and museums. The result has been that many Neighborhood Councils no longer represent local residents, but, instead, skew toward commercial and institutional interests in their land use recommendations. 

The cumulative impact of the multiple barriers imposed on Los Angeles residents is that City Hall approves nearly all land use applications, with few successful appeals. This, then forces those rare communities that either have enough knowledge or money to hire lawyers to challenge a small percentage of the City’s land use decisions. While some of these legal challenges succeed, especially in Hollywood, developers know the odds are in their favor. Few projects ever end up in the courts because the City’s lop-sided approval process gives developers what they need. And, given their deep pockets, the same developers know they also have a good chance to prevail in court. 

The Upshot or Tipped Scales: While developers, their free market ideologues, and their naive supporters   repeatedly claim that LA’s residents somehow control the city’s land use decisions, this is total bunkum. Translated into plain English, it really means that developers want all of their currently illegal projects to be treated as ministerial decisions. If a few remain discretionary, they then want the approval process to become so short and so certain that they are de facto ministerial cases for which successful appeals are impossible. 

If you wonder about the consequences of this highly unequal land use decision-making process, just check out the real Los Angeles. It features sky-high rents, rampant homelessness, wide spread gentrification, toxic air and water, gridlocked traffic, cracked sidewalks, pot-holed and treeless thoroughfares, bursting water mains, unsightly billboards, miniscule parkland, and swaying overhead wires. These are all byproducts of the same deficient planning process that results when the City’s scales are totally rigged in favor of speculative real estate projects.

 

(Dick Platkin is a former LA city planner who reports on local planning controversies for CityWatchLA. Please send any comments or corrections to rhplatkin@gmail.com.) Prepped for CityWatch by Linda Abrams.

-cw