948 Pages of Power Grab: LA’s City Planning Commission Hearing

One aspect of fascism is the expansion of the executive functions of government at the expense of the legislative and judicial branches.  This is now on full display in Los Angeles.  So, please bear with this extensive analysis of new legislation being jammed through in Los Angeles to increase the power of the executive branch of city government. 

You may get “lost in the weeds,” but that is necessary to understand this complex, but totally obscure power grab. 

When Angelinos amended and replaced their City Charter in 2000 under Mayor Richard Riordan, the stated objective was to weaken central control – at that time firmly exercised by City Council -- in favor of greater neighborhood governance by creating Neighborhood Councils, Area Planning Commissions, and empowering the mayor to hire and fire General Managers subject to a two-thirds override by Council.  The decentralization of power was viewed as necessary to stem the tide of secession in Hollywood, the San Fernando Valley, and the Harbor. 

Fast-forward nearly two decades, and see what have in the guise of an obscure City Council File?  A self-styled "procedural" proposal that is anything but procedural and would far exceed even Mayor Riordan's aspirations for a stronger mayoralty.  Los Angeles has never been a city attracted to strongman authoritarian figures, yet in one fell swoop, the Planning Department is attempting to set up a Planning and Zoning decision maker in the form of the appointed Director of Planning.  

As this proposal would have it, a hired manager without public accountability, respect for environmental concerns, community concerns, historic preservation or citizen participation would now wield 90%+ of the planning, zoning and land use authority vested in the City of Los Angeles.  Yes, it really is that bad if you examine Council File 12-0460, Planning File Case No. CPC-2016-3182-CA, CEQA Case No. ENV-2016-3183-CE.  

AS IT NOW STANDS 

The City Council now has complete legislative authority over all land use decisions.  The current City Charter: 

*  Vests all legislative authority in the City Council and makes it the governing body for the City.  Charter Section 240 says:  All legislative power of the City except as otherwise provided in the Charter is vested in the Council and shall be exercised by ordinance, subject to the power of veto or approval by the Mayor as set forth in the Charter. Other action of the Council may be by order or resolution, not inconsistent with the duties and responsibilities set forth in the Charter or ordinance.  Except as otherwise specifically provided in the Charter, the Council shall have full power to pass ordinances upon any subject of municipal concern. 

* Reserves to the City Council all rights and jurisdiction over, and Charter Section 245(c) allows the Council to vote to pull any project or matter from the City Planning Commission. 

*  Gives the City Council ultimate authority over all matters.  Charter Section 250(b) provides that the Mayor's failure to act on an ordinance within ten days makes the ordinance, as if the Mayor had signed it.  Section 250(c) provides that a mayoral veto can be overridden by a two-thirds or three-quarters vote of the Council.  

Thus, City Council-adopted ordinances can set Los Angeles’ legislative goals and can shut down any project and can override City Planning on any matter.  The Department of City Planning and its Director have very limited authority to make these decisions: 

Section 500 of the City Charter creates various City departments, including a Department of City Planning, while section 506 of the Charter makes it clear that the powers granted to each department and its head are "Subject to the provisions of the Charter, and to any ordinances as are not in conflict with the grants of power made to each department in the Charter."  

The City Planning Department and its powers are set forth in Sections 550-566 of the Charter.  The role of the Director of Planning in the Charter is a limited one -- to prepare proposed legislation for Council and to investigate subdivisions plus whatever else is provided by ordinance.  The Director may also propose amendments to the General Plan under section 555 and initiate ordinances, orders and resolutions under section 558, and exercise delegated authority from the City Planning Commission ("CPC") under Section 559 and 560.  The Charter's section 561 also establishes the Office of Zoning Administration but makes it clear that the final authority over zone variances remains with Council.   

While the City Planning Commission can adopt rules and regulations under Charter section 565, they are subject to approval of Council by ordinance and Council retains jurisdiction to prescribe the procedures for the granting of variances under section 562.  Sections 551 and 559 of the Charter also make it clear that while the CPC and the Director can make reports and recommendations, they remain firmly subject to City Council control. 

The Los Angeles Municipal Code ("LAMC") is similarly limited when it comes to the power of the Director of Planning.   

LAMC 11.5.3 (which is deleted in its entirety by this so-called procedure ordinance):  In addition to the duties set forth in the Charter, the Director of Planning shall have the authority to interpret the meaning of the General Plan and specific plans in instances when there is a lack of clarity in the meaning of those regulations, subject to appellate review.  The Director may appoint a designee to act on his or her behalf, in which case, references in this article to Director shall include this designee, unless stated otherwise. 

So, under existing laws the Director of Planning has: 

1. No authority to interpret the Zoning Code at all.
2. No authority to interpret anything else at all except those limited provisions of the General Plan and specific plans ONLY where "there is a lack of clarity in the meaning of those regulations" and subject to appellate review in ALL instances. 

It is clear that under the existing charter and municipal code provisions, heads, Council wins, tails, Council also wins.   

PROPOSED CHANGES: 

This is a power grab to strip elected officials of power (or give them plausible deniability) and transfer significant power in unelected officials at City Planning -- Mayor Garcetti's apparent goal, as evidenced by installing pro-development Directors of Planning, like Vince Bertoni, in office.   

LEGISLATIVE AUTHORITY AND DELEGATION:

The existing City Charter vests ALL legislative authority in the City Council except as otherwise reserved in the Charter.  New proposed section 13.1 specifically provides that the City Council has legislative authority, except as limited by the Charter, state law, or the Los Angeles Municipal Code.   Subsection C makes it clear that it cuts back on the City Council's ultimate legislative authority under City Charter Section 240:

240. General Authority: The City Council generally exercises all legislative authority associated with the Zoning Code, except where otherwise provided by the Charter, State law, or the Zoning Code. The City Council’s legislative authority is subject to veto or approval by the Mayor. See City Charter, Section 240.                                                                                                  

The "except where otherwise provided" language is new and makes the City Council's legislative authority for Planning and Zoning expressly subject to other provisions of the Zoning Code and of State law.  This also makes the legislative authority of Council subject to veto or approval by the Mayor, without an express reference to the provisions regarding overrides of mayoral veto so carefully referenced elsewhere.  

The language in C is pernicious in at least three respects:  

First, the "subject to State law" paves the way for a statewide Planning and Zoning Commission that is implemented top down by State law directly to City Planning managers, bypassing the City Council and the Mayor.  The existing Charter gives the City and City Council the right to fight and sue over "top down" state legislation like the problematic Senator Scott Weiner bills on the basis of the California Constitution or otherwise.  This amendment arguably takes that right away since it specifically cedes City Charter-granted powers to the State.   

Second, the "subject to the Zoning Code" takes away all legislative authority from the City to the extent given to others in the Zoning Code itself.   The existing City Charter gives the City Council (or any member in accordance with its rules) the ability to respond to neighborhood sentiment by "pulling" a matter from the Department of City Planning This amendment takes that right away since decisions are left to the Zoning Administrator or LADBS.  Furthermore, nearly all such decisions are unappealable and unreviewable under the proposed ordinance. 

Third, the veto language is missing the crucial phrase included everywhere that a veto is mentioned in the Charter itself -- the phrase "subject to the power of veto or approval by the Mayor as set forth in the Charter".  Thus, without the override provisions, this could strip the City Council of ALL legislative authority except as otherwise approved by the Mayor.  These "procedural" changes seem to fundamentally alter the veto power that the City Council has in the face of a mayoral veto.  

For example, the City of Los Angeles ("City") last year opposed Senator Weiner's SB 827 because the City Council voted to oppose, and the Mayor did nothing.  Under these amendments, it is not clear that the Mayor's decision to do nothing would empower City Council to act -- since the effect of mayoral inaction has no reference to the Charter provisions regarding effect of no action by the Mayor or the override to a mayoral veto.  

There is no such mayoral power in the current charter.  Under the current charter, the City Council is the ultimate decision maker of its own legislative power and can override the Mayor.  This proposed language could be read, at least insofar as the Zoning Code is concerned (and perhaps more broadly), to mean that there is no legislative authority except for mayoral approval.  

CITIZEN/NEIGHBORHOOD PARTICIPATION: 

This is a general assault on neighborhood participation because it reduces notifications to residents and neighbors regarding a nearby project: 

From: Councilmembers, Neighborhood Councils, occupants and neighbors within 500 feet or such greater footage area as would ensure notice to at least 20 property owners, 

To: a. Councilmembers and immediately adjacent property owners ONLY.

1.   It reduces the notice period from 24 to 21 days.
2.   All requirements for a public hearing are vastly reduced and may be waived unless adjacent property owners (not Neighborhood Councils or other stakeholders) object in writing to the proposed project within 21 days of receiving the notice.
3.   The number of hearings, particularly at the Director of Planning level, is "optional".  

HISTORIC PRESERVATION: 

Historic Preservation and Historical Preservation Overlay Zones (HPOZ’s):  This proposed procedural ordinance allows decisions regarding commercial uses, wireless telecommunication, other specific breaches of HPOZ Guidelines, certificates of appropriateness, certificates of compliance and zoning "adjustments" and "variances" within any zone, including parcels in HPOZs, to be subject to unappealable determinations by of the Director of Planning or the Advisory Agency (which is an extension of the Director of Planning).  

UPZONING: 

The proposed ordinance supposedly just "streamlines" procedures, yet significantly upzones height, FAR and other zoning limitations INCLUDING SPECIFICALLY historic properties and residences at national, state and local levels.  It also embodies as an ordinance the Planning Department's view that the new City Planning Commission-adopted Transit Oriented Communities Guidelines override all other City zoning regulations and ordinances.  

     This is not just a "procedural" clarification, but a new zoning code, implemented by fiat by the Planning Department with limited or no notice, public hearings, or neighborhood input.   

POWER GRAB: 

New section 13.1.1. opens by stating,  "This Division recognizes or formally establishes the agencies involved in administering the Los Angeles Zoning Code. The Division also describes how the agencies are composed, and their powers and duties." 

This language suggests that the agencies are being given powers independently of Council and its power per the City Charter.  Since this will be enacted by ordinance, the provisions and powers granted may be read to override contrary provisions in the Charter and serve to delegate away legislative power without formally amending the Charter.  That is made apparent because the Charter provision on the City Council's general authority is changed, while the Charter provision on the general authority for the Mayor's office is not.  The City Charter cannot be amended or modified without a vote on the ballot, yet that is precisely what this proposal appears to do. 

To add insult to injury, Section D adds a finite list of "Specific" Authorities that the City Council retains, which is only the broadest of approval rights over land use.  There is no "Specific" authority listing in the existing charter for the simple reason that the Council ultimately exercises ALL legislative and municipal power.  

Section 13.1.2 gives the Mayor several specific powers that he does not have in the current Charter, including the exercise of any authority delegated by any section of the Municipal Code or State Law and note that here, unlike in the limitation on legislative authority, the reference to the Mayoral veto of Specific Plans, Zoning Code Amendments and Zone Changes does specifically state that the veto power of the mayor in this regard is "pursuant to the City Charter" thereby preserving the override provisions here and raising the implication that the omission of the charter reference in the preceding section regarding mayoral veto on legislative authority was deliberate and indeed intended to upend the charter division of power. 

Section 13.1.3 gives the Central Planning Commission ("CPC") final decision-making authority over (among other things) Class 3 Conditional Use Permits, Preservation Plan Adoptions/ Amendments; and Policy Plans as well as over all decisions given to Area Planning Commissions.  Currently, the CPC has final authority over NOTHING since all of their activities are subject to Council's ultimate legislative power.  The proposed ordinance also makes the CPC the ultimate decision maker "to approve or deny, on appeal, any: 

• Project Review relating to a Density Bonus;
• Specific Plan Interpretation (which affects an entire Specific Plan area or any of its subareas);
• Appeals of Department of City Planning action on LADBS appeal that is found may have a citywide impact;
• Zoning Code Interpretation; and
• Subdivision approval, as provided in Division 13.10." 

So, the CPC would decide all Zoning Code interpretations (e.g. Do the CPC-adopted Transit Oriented Community Guidelines that implement Measure JJJ apply in an HPOZ?  Do they override Q conditions?).  

Area Planning Commissions ("APC") also get vastly expanded powers in Section 13.1.4 (and remember that the Director of Planning can exercise power and make decisions regarding all CPC and APC matters under the proposal):  

• To render a final decision on any:
• Project Exception; and
• Certificate of Appropriateness (demolition, removal, relocation). 
• To approve or deny, on appeal, any:
• Class 2 Conditional Use Permit;
• Project Review;
• Project Permit;
• Project Compliance (with Design Review);
• Project Adjustment;
• Specific Plan Interpretation (which is applicable only on a site-specific basis);
• Alternative Compliance;
• Adjustment;
• Variance;
• Appeals of Department of City Planning action on LADBS appeal;
• Zoning Code Interpretation on a site-specific issue;
• Subdivision approval, as provided in Div. 13.10;
• Certificate of Appropriateness (construction, addition, alteration, reconstruction);
• Certificate of Compatibility for non-contributing elements; and
• Coastal Development Permit.

4. To render decisions or consider appeals relating to Coastal Development Permits, where provided by

NOTE:  the proposal does not say "to hear in the first instance subject to any right of appeal to the full CPC and Council", it says "to render a final decision" and "to approve or deny, on appeal", in each case suggesting no further right of appeal.   

THE RISE OF THE DIRECTOR OF PLANNING: 

The Director of Planning has no ultimate authority in the existing charter and Municipal Code.  Just look at the long list of land use actions in Section 1.3.5 that makes the Director of Planning the ultimate decision-maker:

1. Review and submit recommendations on:

1. The adoption or amendment of the General Plan;
2. The adoption or amendment of a Specific Plan;
3. The adoption or amendment of the Zoning Code;
4. A Zone Change (including Supplemental Use Districts);
5. The adoption or amendment of a Preservation Plan; and
6. Any other decision within the original jurisdiction of the City Planning Commission or an Area Planning Commission.

 2. To render a decision on any:

a. Project Review;

2. Director Determination;
3. Administrative Review;
4. Project Compliance;
5. Project Compliance (with Design Review);
6. Project Adjustment;
7. Specific Plan Interpretation;
8. Alternative Compliance;
9. Adjustment;
10. Reasonable Accommodation - Fair Housing Protections for Individuals with Disabilities;
11. Review of Conforming Work in an Historic Preservation Overlay Zone, where delegated by a Preservation Plan;
12. Certificate of Appropriateness (construction, addition, alteration, reconstruction) in an Historic Preservation Overlay Zone;
13. Certificate of Compatibility for non-contributing elements in an Historic Preservation Overlay Zone;
14. Appeals from LADBS Determinations; and
15. Coastal Development Permit.

3. Interpret the meaning of the General Plan and Specific Plans in instances when there is a lack of clarity in the meaning of those regulations, subject to appellate review.

4. Appoint a designee to act on his or her behalf, in which case, references in this Code and other land use ordinances to Director shall include this designee, unless otherwise stated.

The transfer by ordinance of "any other decision within the original jurisdiction of the City Planning Commission or an Area Planning Commission" basically turns the departmental hierarchy on its head. 

A review of the operative provisions reveals that ultimately the Director of Planning will exercise all powers of the Director's Office plus the Advisory Agency plus "any other decision within the original jurisdiction of" the CPC or any Area Planning Commission". 

If you actually go to the link for the proposed ordinance, scroll down to the pages that set forth the procedure for each type of action, you will quickly see how this consolidates power.  If you look at the bubbles at the far right of the referenced pages, you will see who has final decision-making power: 

Decisions that can be appealed to or come before City Council are:

1. General Plan, Specific Plan and Preservation Plans Adoptions and Amendments pages 687, 699, 843 and 848.
2. Final Tract and Final Parcel Maps pages 814 and 824; and
3. Zoning Code Amendments and Changes Pages 702 and 705. 

Decisions that are "by right" or "ministerial actions" are made by LADBS or Planning with no right of appeal to anyone: Page 743. 

Conditional Use Permits Classes and Variances are Zoning Administrator decisions, pages 717, 720 and 777. 

Everything else, tentative maps, adjustments from zoning (which have been considered by at least one judge to be illegal under the City Charter), certificates of compatibility and appropriateness in HPOZ, project review, determinations of compliance or alternative compliance with any specific plan, interpretations of specific plans, zoning, maps, etc. roll up into the Director of Planning (occasionally by detour through the CPC or an Area Planning Commission or under the term "Advisory Agency" rather than "Director").  (Pages 727, 735, 741, 743, 747, 750, 756, 763, 766, 769, 780, 800, 802, 818, 827, 855, 860 -- page numbers refer to the corresponding scrolled pages in the lengthy link). 

So, call, email, text, attend, participate – this is important.  This is not the last time local activists will ring the alarm bells at a local or state level.  There are too many dollars at stake in upzoning LA for developers and private equity funds to just give up.  As a result, there will be many times that local activists will inform you and call upon you to galvanize and to protest. 

(Victor Rothman is a California-based policy analyst. He lives in Los Angeles and is an occasional CityWatch contributor.)

-cw