Thursday, Aug. 3, 2000
Planning and Zoning
New Rules for Land Use Permits in Los Angeles
By GAIL GORDON
writer is a counsel in the Los Angeles office of Hughes Hubbard & Reed LLP
On July 1, 2000, many ordinance changes resulting from 1999 amendments to the Los Angeles City Charter, went into effect and relate directly to the processing of land use approvals in the City of Los Angeles. Although the framers of the Charter amendments professed a desire to make the City's processes simpler and easier and to weaken government, the result is very different. The land use regulations are more complicated, the administrative processes involve more decision makers and the new decision makers have little, if any, experience in making land use decisions and will require the necessary "learning curve" to comprehend the City's byzantine land use regulations. Applications for building and similar "ministerial" projects are generally not affected by these changes. However, "discretionary" approvals for development of land such as subdivisions, zone changes, specific plan changes, conditional use permits and variances are subject to these changes. This article will highlight some important facts which you should know before approaching the City for a discretionary approval for the use of land on or after July 1, 2000.
The City's Board of Zoning Appeals Is Abolished, Area Planning Commissions Are Established and Some Land Use Permits Are Redefined
Although the Office of Zoning Administration, currently under the direction of Mr. Robert Janovici, Chief Zoning Administrator, continues in operation, the Board of Appeals has been abolished and replaced by seven Area Planning Commissions ("APCs"). The seven APCs are: North Valley Area Planning Commission; South Valley Area Planning Commission; Harbor Area Planning Commission; East Los Angeles Area Planning Commission; South Los Angeles Planning Commission; Central (Metro) Los Angeles Area Planning Commission and West Los Angeles Area Planning Commission.
Each APC will be composed of five Commissioners, all of whom must reside in the APC area. Most of the new Commissioners have no experience in adjudicating land use matters. The new Commissioners are professionals who should learn quickly but there may be a significant learning curve. APCs will consider "local" issues and the Citywide Planning Commission ("CPC") will consider issues of "Citywide impact." For the purpose of zone changes and subdivisions, "local" is defined as: "any development project which creates or results in less than 50,000 gross square feet of non-residential floor area; any development which creates or results in less than 50 dwelling units or guest rooms or combination or any application for a zone change or tract appeal for a tract without a proposed project description having less than 65,000 square feet of lot area."
The land area under the jurisdiction of each APC generally follows Community Plan boundaries and, significantly, not Council District boundaries. For instance, the North Valley Area Planning Commission will have jurisdiction in the following Community Plan Areas: Chatsworth-Porter Ranch; Northridge; Granada Hills-Knollwood; Mission Hills; Panorama City; North Hills; Sylmar; Arleta-Pacoima-Sun Valley; Lakeview Terrace and Shadow Hills-Sunland-Tujunga. A new Section 11.5.2 to the Los Angeles Municipal Code sets forth a detailed description of the land included in the jurisdiction of each APC.
The APCs will meet at a location within the planning area of the particular APC. For instance, the West Los Angeles APC met for the first time, on Wednesday July 5, 2000, at the Henry Medina West Los Angeles Parking Facility, 2nd Floor, Roll Call Room, 11214 West Exposition Boulevard, Los Angeles, California 90064. The APCs will meet at 4:30 p.m. on Tuesday, Wednesday or Thursday, two times each month. Such hearings may continue well into the night. According to the City's Planning Department, there may be changes in the time of APC meetings after the APCs have worked for a while. The current schedule for APC meetings shows only one overlap in APC meetings and that is the South Los Angeles APC and the Harbor APC, both of which meet on the first and third Tuesday of each month. City staff believe there will be few cases assigned to the Harbor APC, because of the past history of few cases in the Harbor area, so the overlap may not cause problems.
Staffing the APCs, both for internal management purposes and appearances before them, on a case-by-case basis, will tax the already overburdened Planning Department. One new City Planner will be appointed to head the new office in the Planning Department for APCs. All materials for a matter scheduled before an APC must be transmitted to the APC office and the City staff will distribute the materials to the appropriate APC. One staffing solution has already been changed as a result of rethinking the best way to staff an APC. The City originally decided to create a new position of "Circuit Rider" in the office of Zoning Administrator, where one Associate Zoning Administrator ("AZA") would represent the entire office of Zoning Administration at all appeal hearings. This meant that the AZA who decided the zoning issue at the first level would not appear at the APC, the CPC or the City Council.
For the private sector, this new practice would be disastrous. A new AZA who is not familiar with the facts of the case, has not heard the testimony of the first decision-making level nor reviewed the entire file, could not possibly be learned enough to represent the actual AZA who reviewed the file and made the first determination. However, in recent conversations with Planning Department personnel, we learned that the City has decided against the creation of a "Circuit Rider." Instead, the AZA who decided the matter at the first level will follow the case through all the City processes. This answer is more satisfactory for the private community but will create staffing problems such as the possible need for an AZA to be at two or more APC meetings scheduled on the same date. Consequently, City staff now anticipate that an AZA may be assigned to do all cases in one APC area. This result is contrary to the City's past practice of assuring that an AZA not become inordinately involved in a particular geographical area in order to protect the "neutrality" of the decision maker. This is an example of the type of processing problems, resulting from the Charter changes, which can be solved in an organizational manner, over time, but, in the beginning, and for some time thereafter, will create substantial confusion, and, perhaps, inequities.
The good news is Case Managers will still be available. Case Managers are senior experienced persons whose stated goal is to assist an applicant through the City processes. The Case Managers will be in the downtown offices and can discuss matters as they progress though the City's regulations.
The City Planning Commission ("CPC") continues but is renamed the Citywide Planning Commission and will have nine Commissioners rather than the current five Commissioners. Consequently, applicants may find that a majority of six (6) members, required for many decisions, is more difficult to obtain. APC actions may be appealed to the CPC. The CPC is generally the "end of the appeal line" but the appropriate Councilmember may, by a procedure equivalent to "Prop. 5," (now Charter Section 245), and only when matters cannot otherwise be appealed to the City Council, bring the matter forward to the Council within five City Council meeting days of the action by the CPC.
Yard variances have been eliminated. Such actions are now Adjustments with new findings and only one appeal--to the CPC--unless "called-up" to the City Council by the appropriate Councilmember. Multiple applications may be processed separately or together. If processed together, a subdivision is always the lead case and the time limitations for actions by decisionmakers and other procedures are governed by the California Subdivision Map Act. For instance, the Subdivision Map Act provides that all subdivision requests are appealable to both an intermediate appellate body, that is, the CPC, and the City Council. Accordingly, such an application, and all the actions included therein, may be finally appealed to the City Council without any action by the appropriate Councilmember to "call up" the application to the City Council. Smaller zone changes will be first decided by the APCs and larger zone changes by the CPC. APC zone changes will have two appeals, one from the APC to the CPC and one from the CPC to the City Council. CPC zone changes will have an appeal to the City Council.
A new "Public Benefit Permit" Process has been created to provide expedited approval by the City Counter staff for certain applications which "provide public benefits." The following are examples of "Public Benefit Permits:" cemeteries, libraries, museums, fire or police stations or governmental enterprises; public utilities and public service uses in the A, R or C zones; joint public--private development in the PF Zone; mobilehome parks; recreational vehicle parks and mobilehome parks in the A, R or C Zones. However, in order to receive an approval from City Counter Staff, the applicant must first satisfy a list of "performance standards." Planning staff believe that the "performance standards" are so difficult to satisfy that few of these permits will be approved at the counter, and, instead, will be "bumped up" to the CPC.
City staff also report that local issues with small impact will go to an APC on appeal from the determination of the public counter. For instance, an exception to a specific plan, if small, may be determined by the public counter and, depending upon that determination, appealed to the APC. Perhaps a larger exception than usual from a specific plan is more likely to be denied by the public counter on the analysis that its effect may be of such significance that the public counter should "bump it up to the CPC" for a determination of whether a Conditional Use Permit or other entitlement is more appropriate.
A New City Department of Neighborhood Empowerment and Neighborhood Councils Has Been Authorized
The Charter amendments provided for creation of a Department of Neighborhood Empowerment ("DONE") which will be an official City Department but will have no decision-making role relating to the approval of applications for development. DONE may not be fully staffed and operative for one year although a General Manager, Rosalind Stewart, has been appointed. "Neighborhood Councils" will be organized and defined by DONE. Regardless of the fact that DONE is not yet been fully established and Neighborhood Councils are not yet formed, the relevant fact for people interested in development is that whatever is constituted as the DONE will receive early and regular notification, that is, beginning July 1, 2000, by the Planning Department of land use cases which have been filed. Therefore, to the extent that the DONE has been organized, is located in a specific location and is appropriately staffed, it will have information about all pending land use cases.
The fact of such "early notification" means that DONE staff may notify neighborhood groups already established or the new Neighborhood Councils which will be created pursuant to one of the ordinances resulting from the Charter amendments, if established, about pending cases. Such official early notice of pending land use matters to the neighborhoods has never occurred before in the City. Historically, neighborhoods generally discovered pending land use applications only by independently contacting the City to find out what is happening or by receiving the required public notice from the City of a public hearing for a land use application. Such "early notice" of all pending land use matters may have significant impacts upon the success or failure of private development and result in more early discussion and cooperation between neighborhood groups and developers.
The Procedural Changes Will Continue
Among other developments arising from the Charter amendments, City staff report that an attempt will be made to standardize all the numerous specific plans. This standardization attempt will mean that many of the specific plans will be in a process of changing during this transitional phase and may create problems regarding which standards should apply. Before relying on a specific plan when filing an application, contact should be made immediately with the appropriate City planner or counter personnel to determine whether the specific plan which affects your project is in revision and what is the estimated timeframe for completion of the revisions. Of course, a strategy may be to move the application faster than the proposed amendments to the specific plan or slow down the project in order to be subject to the newer specific plan or initiate amendments to a specific plan.
Cases initially filed after July 1, 2000, will be placed in the new process at the time of filing. For cases filed before July 1, 2000, the following rules will apply. If the first City decision is still pending, the matter will go to an APC. If there is a written or verbal decision by a City decision maker issued for the matter, before July 1, 2000, that decision will stand and go forward under the "old rules." The City will still have a central filing system in the Planning Department offices at 221 North Figueroa or at other City planning locations. However, for ease of the public, the City's computer system will also track the files.
If there are mistakes on an application because of the changes in City rules or otherwise, the public counter staff will try to make corrections. The Counter is "sorting things out" at this time in order to try to assist applicants to go forward in the process. However, if there are mistakes or ambiguities in an application which are substantial, the counter staff may "bump up" the problem to the CPC "for sorting out."
There are so many ordinance and practical changes resulting from the City Charter Amendments that knowledgeable people can only foresee numerous and ongoing problems in the application of the new rules. These problems will exist not because the City staff is not making the best efforts to implement the rules in a fair and understandable manner, as soon as possible, but, rather, because the new rules themselves are so numerous and ambiguous that one can imagine a substantial period for "sorting out" the problems.
The best process to follow is to read the new rules, formulate an approach to the best of one's ability and check with an appropriate City Planner or Case Manager as to whether your analysis is correct. The public counters established at several locations in the City should provide the personnel necessary for such conferences. Additionally, senior management personnel at 221 North Figueroa will be available for advice on complicated matters. No one is going to have an easy time during this transition period. However, cases are more likely to be approved if a thorough analysis of all the applicable rules and possible negatives which might arise from using one process rather than another are carefully analyzed before submitting an application to the City.
For instance, a project representative must be careful to investigate, as soon as possible, whether or not it would be more productive to frame a project so that it is subject to only one APC and appealable by right, only to the CPC, or whether the project could include property in a second APC area and thusly have the determination made initially by the CPC and appealable to the City Council. This fact may simply be an inconvenience for projects which, by their nature, involve more than one APC area or it may be a positive advantage if, over time, it is perceived that the CPC, with its nine (9) members, is a more favorable forum for private development than the pertinent APC; or, on the other hand, a more unfavorable forum for a private development or, vice versa, a particular APC, over time, may appear to be more, or less, favorable to new developments. This issue, like many others outlined herein, is important for early strategy regarding projects and contacts with appropriate knowledgeable City personnel regarding the necessary information about the pertinent processes and appellate bodies in order to frame the project in the most positive fashion.
Because the APCs are more local in jurisdiction, land use approvals may now reflect a more balkanized approach to development in the City. Local neighborhoods will have a much larger role in reviewing local development, perhaps not right away, but certainly over time, and by moving the APCs to local locations, the local neighborhoods are more likely to participate in the approval process.
The size of government personnel assigned to land use and other planning and development issues will increase. New City staff will be necessary for the DONE. More Planning Department staff will be needed for the APCs. More physical locations must be leased or acquired and staffed for the meetings of the APCs. All in all, these changes will result in a significant growth in government personnel, other significant expenses for effective operation of the City's planning processes and more regulations.
Copyright 2000, Metropolitan News Company