Enforcement of Conditions on City Planning Cases

Enforcement of Conditions on City Planning Cases

San Fernando Valley Regional Congress

Panorama City High School -- May 29, 2009

Please send comments and corrections to:

Dick Platkin

E-mail: rhplatkin@yahoo.com

213-308-6354 cell, 323-938-7027 FAX

Blog: www.plan-itlosangeles.blogspot.com

Senior Planner and Policy Analyst, Tierra Concepts

I have five major points to make today about the enforcement of conditions on approved City Planning discretionary actions:

1) The historic weakness of the overall planning process in Los Angeles has encouraged the proliferation of discretionary actions to side-step the city’s legally adopted zones and plan designations.

2) Few applications for discretionary actions are ever denied, and few are ever approved out-right. The Planning Department’s general approach to these applications for discretionary actions could be summarized as “Approve with conditions.”

3) The weakness of the Departments of Building and Safety and of City Planning to enforce some design, landscaping, and most operational conditions results from two major factors: a long-term staff shortage over the past several decades, which is set to become much worse due to the budget crisis, and an institutional “business friendly” culture which translates into haphazard enforcement of codes and conditions.

4) The issue of lax enforcement of conditions is only the tip of the iceberg in deteriorating public services resulting from the budget crisis. This means that Neighborhood Councils should prepare to aggressively address the implosion of public infrastructure and public services. The cutbacks will not only undercut enforcement, but will usher in many other immediate and long-term problems.

5) I am collaborating on three efforts which might help communities mobilize to address these problems: a blog on planning issues, an extension course with Tom Rath on mobilizing Los Angeles communities to address planning issues, and developing contacts between L.A. residents and City employees to form a ”Neighbor-Labor” alliance.

1. The weakness of the planning process in Los Angeles. The Department of City Planning had abdicated most of its role in the planning process, at least as it is understood within the city planning profession. This abdication has been a long and incremental process, largely shaped by the political and economic environment in Los Angeles, but also moved along by the transition in governance in most of the United States, from liberalism to neo-liberalism

More specifically, planning, in theory and by legal requirements, addresses the entire land area of a city. This, in fact, did take place in Los Angeles when the City’s General Plan, called the General Plan Framework, was prepared in the early 1990s’ and adopted in 1995 for the 2010 horizon year. But the Framework, despite some excellent chapters, quickly became a shelf document. Furthermore, it is about to expire without even a whimper, much less a bang, because 2010 is only six months away. If the Framework had been kept up-to-date and relevant, it would have been updated on a 10 year cycle, which means that Los Angeles would already have a new General Plan addressing its total land area, as well as all functions of local government, including schools and transportation, not just the zoning of privately owned land.

How ironic then that the General Plan’s 35 Community Plans, which are supposed to implement the General Plan, are being updated for the 2030 horizon year, while the guiding General Plan, based on data and policies for the year 2010, itself will soon be a relic.

Furthermore, the updated General Plan and Community Plans should and could be fully integrated into the City’s Capital Improvement Program, Departmental work programs, and the projects and work programs of such local agencies as the LAUSD, the MTA, and the Community College District. Instead, these agencies and sectors all operate on their own agendas and missions, most of which is determined by a political not rational planning process. Any linkage to the General Plan is peripheral or coincidental.

As a result, the Department of City Planning has incrementally reduced what is called “the planning process” to zoning issues for the 20 percent of the City’s land area which is privately owned. This approach unfortunately has severed the vital connection between the 80 percent of the City which is public land or public facilities, as well as the public infrastructure and public services which are absolutely necessary to sustain the residences, businesses, industrial facilities and institutions located on privately zoned land.

This means that the bulk of the day-to-day business of the Planning Department is to sporadically up-zone and up-plan the City’s privately owned parcels through the updating of Community Plans, and then engage in the really heavy lifting: processing the vast and growing array of discretionary actions result from old and/or outmoded community plans. Even though the up-zoning and up-planning of the community plans generally favors real estate investors and speculators, market conditions sometimes exceed the sympathetic contours of the city’s plan designation and zones. In these cases, the investors hire expediters, attorneys, and architects to pursue zone changes, variances, and conditional use permits to allow what is euphemistically called the highest and best use of the land. Translated into plain English this really means the most short-term, profitable investment in real estate projects regardless of their consistency with adopted plans or the broad interests of the City’s residents.

2. Approve with Conditions. Few applications by developers and/or property owners for discretionary actions, such as zone changes or variances, are ever flat-out denied by the Department of City Planning. Likewise, few cases are ever approved out-right. The trustworthy middle ground in which projects are usually approved but with limitations, such as hours of operation, is typical. They not only offer a superficial Solomonic approach, providing each side in disputed projects some of what they wanted, but also such cases have a better chance of avoiding or withstanding an appeal. In fact, some sophisticated developers anticipate that their projects will have imposed conditions and therefore propose more than they want, assuming that imposed conditions will reduce their project to their originally preferred size, albeit in a round-about way.

The Planning Department’s general approach to these applications for discretionary actions could be summarized as “Approve with Conditions.” Furthermore, this not only describes the outcome of most cases, but also describes the informal training which junior planners get from their supervisors and managers in how to draft determination for discretionary actions, especially those which are controversial.

3. Failures to enforce with conditions. In the words of Sacramento-based public finance economist, Lenny Goldberg, Los Angeles City government offers a permissive regulatory environment combined with relatively low taxes on business. This, rather than high, well funded public amenities and infrastructure, is the strategic outlook of City government in Los Angeles. If there is any wrinkle in this approach, it is only that since the Civil Unrests of 1965 and 1992 that the LAPD, unlike other City departments, has been the favored child of all local officials.

As a result, the LAPD is the largest, best funded, and most revered City department among local officials. It is, therefore, quite ironic and disappointing that this department is oblivious to violations of all types of city laws, including the zoning and building codes, as well as the destruction of City property, such as street trees. Chief Bratton’s adoption of the “broken windows” policy might apply to petty crimes like graffiti and shoplifting, but not clear and sometimes dangerous violations of building codes, zoning codes, and other requirements on real estate projects. This means overt attacks on property, such as theft, are crimes, but legal violations by property owners and investors are below the LAPD’s radar. This unwillingness of the LAPD to even see, much less pursue those who violate many City codes and ordinances, including specialized ones for individual pieces of property, in particular zoning conditions, leaves enforcement up to powerless, untrained civilians. These are the building inspectors, industrial waste inspectors, and street use inspectors, all of whom are issued concealed badges and a notebook from which they can issue citations that are seldom if ever prosecuted.

These inspectors face enormous difficulties.

First, their employer, the City of Los Angeles, has an institutional culture of too often ignoring many City laws, such as discretionary actions approved by the City Planning Commission and City Council as ordinances (e.g., zone changes, plan amendments, and some conditional uses), as well as quasi-ordinances, specifically determinations issues by Zoning Administrators (e.g., variances) and the Director of Planning (e.g., Specific Plan and HPOZ approvals).

Second, the inspection capacity of the Department of Building and Safety and of Street Services, which deals with sidewalks, is notoriously understaffed. Despite a long history of complaints about illegal and bootlegged signs in Los Angeles, the City only has several dedicated sign inspectors. It also explains, but only in part, why the City does not engage in pro-active code enforcement, and, instead, only responds to complaints submitted by the public.

Third, it hard for “stretched” enforcement employees to carefully review the unique conditions imposed through each discretionary action written by an employee of the Department of City Planning, and then often reviewed and revised by supervisors and managers. These determinations are intricate and sometimes obscure to the outsiders who are charged with enforcing them. They are either printed as part of an electronic copy of a determination posted on a city website, reprinted on architectural drawings in miniature fonts, or kept in hardcopy form in physical files. The result is that through human error and/or overwork, it is difficult for many plan checkers and inspectors to master the intricacies of each discretionary action.

While it easier for a plan checker to review architectural drawings for compliance with conditions, events in the field can be tougher. What about typical conditions related to operations, such as hours of operation on Saturdays and Sundays? What about landscaping requirements when LADBS inspectors candidly admit that they have no knowledge or training in landscape architecture. Some even joke that they can determine if a plant is alive or dead, but little else.

Fourth, in those cases where violations of codes and conditions are enforced, usually in response to a public complaint, it is exceedingly rare for the City Attorney’s office to prosecute violators. Instead the City Attorney prefers that inspectors negotiate with violations of codes and conditions in lieu of prosecution. As a result, many violators ignore citations from the Department of Building and Safety, knowing that the risk of a permit being revoked, much less a fine or jail time, is extremely remote. They take their chances and seldom regret it!

4. Weak and inconsistent enforcement of codes and conditions is just the tip of the iceberg. The currently unfolding collapse of public sector and public services will magnify the entire flawed process discussed above. This is because of several obvious and unintended outcomes from layoffs, hiring freezes, and furloughs.

First, the most obvious outcome is that there will be fewer employees to do the actual work. Their numbers will be reduced by an initial wave of layoffs, then slowly further reduced by a hiring freeze that will probably extend for many years.

Second, the remaining employees will have fewer hours to work, which mean fewer services from City government in Los Angeles. At this point, the Mayor and Council are calling for 26 annual furlough days, which amounts to a 10 percent reduction in hours and pay, which will be further eroded through increased payroll deductions. And, there is discussion of increasing the number of annual unpaid furlough days to 52 in order to assure that the LAPD can maintain its current staffing levels while all other City department are imploding. This means 20 percent reductions in the municipal services provided by the remaining City employees.

Third, the morale of City employees is already low and will sink further as pay is cut and promotional opportunities are eliminated for the foreseeable future. If papers like the Daily News continue to attack public employees, rather than the elected officials who have showered hundreds of millions of dollars in fee waivers, tax breaks, loans, and grants to large real estate projects, such as the Staples Center, Playa Vista, and LA Live, then morale will sink even further. In this scenario a demoralized work force is not likely to increase the amount or quality of code and condition enforcement.

Fourth, to lure investors into Los Angeles, codes and processes can be slowly gutted during the down time, and if/when development accelerates, the city will become a free-for-all.

Fifth, draconian budget cuts by the City, County, LAUSD, Community College District, Cal States, UC’s, and all other state funded public services and infrastructure, will quickly translate into a rapid and accelerating decline in the quality of life for nearly all Los Angeles residents. For some it is already happening, and for others this future is quite certain.

This is why Neighborhood Councils, especially the committees focused on planning issues, must see the problem of code and condition enforcement in the broadest terms. When roads become full of potholes, when schools are shut down all summer long, when more families are living out on the streets, when the few services available to the mentally ill are cut and those with mental illness join the ranks of the homeless, it will be a luxury to restrict energies to poor enforcement of conditions and codes.

I realize that many people feel helpless when faced with these travesties, especially when each day’s news stories reveal a scary, downward spiral framed by the specious claim that there is just no money. This framing is patently untrue, and it is the role of Neighborhood Councils to point out the obvious:

First, health and safety is much more than policing. It is simply not sound public policy to slash all public services to allow the LAPD to continue its post-1992 expansion in anticipation of another civil disturbance.

Second, much of the City’s budget crisis is self-inflicted. Year after year, the City Council has reliably answered the requests of large developers, often billionaires like Phillip Anschutz and Eli Broad, with fee waivers, loans, and tax breaks for their projects. The claim of the developers that this in an investment for the City, and that the City will recoup their investment with enhanced public revenue is just hype. There is no evidence whatsoever for these developer claims, as evidenced by the implosion of local government in Los Angeles.

Third, if one looks at overall government expenditures, it is clear that local government is the victim of triage. As a result of the recession, the banks, lenders, and insurance companies have received approximately $13 trillion in various rescue packages, such as AIG, which has so far received over $160 billion. This amount alone is probably enough to offset the deficits of all 50 states. The rescue packages also continue to grow, with the Obama Administrating advancing an infusion of $108 billion to the International Monetary Fund.

Fourth, the U.S. military budget also continues to grow, increasing 4 percent this fiscal year, and is now estimated to reach $1.2 trillion for all categories. For example, Congress just approved another $95 billion requested by the Obama Administration for the Iraq and Afghanistan wars.

Bottom line, whenever you are told that massive cuts in local government and infrastructure are necessary because there is no money, it is time to “connect the dots” and point out where the money is actually being spent.

5) Three initiatives to help. While the tasks for Neighborhood Councils are clearly lengthy, I am now working on three initiatives which might offer some help.

First, I am collaborating with another recently retired Los Angeles City Planner, Tom Rath, to teach an extension class on mobilizing Los Angeles communities to address local planning issues. If you think you may be interested, please give us your contact information on the sheets being passed around.

Second, I have started a blog focusing on local planning issues. The name and URL is: ( www.plan-itlosangeles.blogspont.com ).

Third, because of my dual role as a Los Angeles resident active in local planning issues, and a former officer in a municipal union, I have previously helped organize a neighbor-labor alliance. It is time to revive this alliance, to unite the providers of municipal services with the consumers of these same services. If you are interested, please be in contact.