GUEST COMMENTARY-After Marcie Edwards announced her retirement as General Manager of the Los Angeles Department of Water and Power, Mayor Garcetti chose the department's Chief Operating Officer, David Wright, to replace her. 

Wright, who is currently serving as Interim General Manager, was an obvious choice in some respects. His experience in public utilities is deep. 

But DWP is a department with serious problems. Its workers and management are compensated significantly more than other city employees or other similar employees around the country. DWP is the eighth worst public utility in the United States, in terms of consumer satisfaction. 

Is Wright the best choice to lead DWP into its next era? Will he be the leader who can reform one of the city's most inefficient and hated institutions? The answers to those questions are unclear. 

Wright will need to be confirmed by the LA City Council in order to serve as permanent GM. This is a real opportunity for the Council to show their constituents they take DWP reform seriously. All too often the Council has served as a rubber stamp for the Mayor's policies and decisions. That can‘t happen here. 

Wright's track record and plans to improve the department need to be carefully scrutinized. He needs to honestly and thoroughly address five areas of questions.                                                                                                          

How is he planning to overhaul the massive bureaucracy of DWP to work for its ratepayers rather than its union and management? What are his plans for the department’s workforce numbers and future collective bargaining agreements? 

How will he increase the department's use of renewable energy and decrease its dependence on coal fired power plants? 

How will DWP respond to the drought if it continues another five years? Ten years? How can we continue to meet water reduction targets? 

What is his plan to improve customer satisfaction? How will he convince the public to trust DWP management? 

Finally, what can the City Council, the Mayor, and public expect in terms of a timeline for reform? What are the metrics and benchmarks he will use to measure success? 

This confirmation process should be a vigorous and thoughtful debate. No 15-0 vote after a one day hearing. No rubber stamping. This is serious, and it's an opportunity the City Council should not pass up.

(Mitchell Schwartz is candidate for Los Angeles Mayor 2017.) Prepped for CityWatch by Linda Abrams.

JUST THE FACTS— I recently filed a lawsuit against the City of Los Angeles and LAPD for forcing LAPD Detectives and others to work on duty at Ram’s Football Games at the Coliseum. 

While the Ram’s are willing to pay for LAPD security inside the Coliseum, they are not willing to pay for the LAPD personnel working outside the Coliseum. 

There is no doubt that security is necessary to protect the fans and their vehicles as they park and pay up to $100 to a gas station operator or homeowner along Dr. Martin Luther King Blvd since parking is so limited at the Coliseum. LAPD detective personnel forced to work the detail on a working day means that they have to take a day off during the week and their cases are stacking up more and more. 

While the LAPD has run out of patrol officers to police the city and work the Coliseum, it has become necessary to assign detective personnel to work the Ram’s games for public safety. This is a gift of public funds and that is the basis of my lawsuit against the city. 

With the owner of the Rams, Mr. Stan Kroenke, worth an estimated $8 BILLION DOLLARS and the Rams valued at $3 BILLION DOLLARS, don’t feel sorry for Mr. Kroenke. Mr. Kroenke and the Rams need to pay for all the security at the Ram’s games at the Coliseum. I hope this matter is settled sooner rather than later for the benefit of the LAPD Personnel and citizens of Los Angeles.

●●

When Elected Officials pledge to improve our quality of life, there is a cost. That cost comes in various forms. It could be higher fees or taxes or bond measures. It all comes down to all of us paying more … one way or another. 

Here are 4 of the proposed Los Angeles City measures that you will be able to vote on when you go to the election booth on November 8, 2016.

1. I will start out with the pressing matter of the Homeless in our region. There is a Homeless Reduction and Prevention, Housing and Facilities Bond. This is Proposition H. 

2. Then there is the Affordable Housing and Labor Standards related to City Planning. This is Initiative Ordinance J. 

3. With our Water and Power rates increasing over the coming years, The City of Los Angeles Department of Water and Power wants to change the Commission’s structure. This is Charter Amendment R. 

4. The City of Los Angeles Fire and Police Pensions impacting Airport Peace Officers. Charter Amendment S. 

These 4 Los Angeles Ballot Measures are allegedly created to improve the living conditions and services in Los Angeles. Will they accomplish that or just cost you more money in various forms of taxes and or fees. 

Now comes the good part. I will expose the truth of the measures and hopefully encourage you to vote to improve city services without taking more money out of your pocket. 

The first item is the Homeless Reduction and Prevention, Housing and Facilities Bond. Proposition H.     

This measure will provide a $1,200,000,000 General Obligation Bond to develop housing and facilities for the homeless and affordable housing for those at risk of homelessness. Using the Comprehensive Homeless Strategy that was adopted by the city on Feb 9, 2016, the housing need calls for 13,000 units of new housing including 10,000 units of supportive housing for the homeless in Los Angeles.   

The measure will require the following to gain the public trust, if that is possible. 

1. An Annual Plan that prioritizes funding for supportive housing and facilities and the necessary bond issuance to finance those development
2. Establish a Citizens Oversight and Administrative Oversight Committees to monitor the bond program. 
3. Produce an annual financial audit that will be available to the public. 

This measure will become effective if two-thirds of the voters support it. 

With Governor Brown unwilling to accept that Los Angeles has a Homeless Emergency as declared by L.A City leaders, and without state funds to help reduce the Homeless population in Los Angeles, is it necessary to float a Bond to the tune of $1,200,000,000 dollars to help reduce the homeless population? 

There is no doubt that the Homeless Population is increasing and something has to be done to address it. Will the 13,000 Homeless units be in your neighborhood or on your street? Are you willing to accept that? The latest homeless count in Los Angeles listed 26,000 as homeless with and 11% increase over last year. Will there be more and more homeless coming to Los Angeles as housing is provided to assist them? 

I will address the three other measures in my future articles.

(Dennis P. Zine is a 33-year member of the Los Angeles Police Department and former Vice-Chairman of the Elected Los Angeles City Charter Reform Commission, a 12-year member of the Los Angeles City Council and a current LAPD Reserve Officer who serves as a member of the Fugitive Warrant Detail assigned out of Gang and Narcotics Division. He writes Just the Facts for CityWatch. You can contact him at [email protected].)

-cw

PLATKIN ON PLANNING-If you want to understand the deeper politics of empowerment, especially when it comes to Neighborhood Councils in Los Angeles, please read on. 

This is the political essence of empowerment: no one who has power bothers to become empowered.

They are already the decision makers, what George W. Bush called the “deciders.” This is the essence of their governmental power. And, no one who has been “empowered” actually has any real power because they are still NOT the decision makers. 

EASTSIDER-As we move closer to November, the subject of DWP Reform is still front and center in the media, including CityWatch. The reform issue itself is serious business, for the simple reason that, win or lose, this will likely be the last DWP reform measure for a longtime to come. 

Sadly, most voters will only know about Charter Amendment RRR, as it is named, based on the YES and NO arguments in their in their Voter Guide. And that’s assuming that they even read the arguments. Truth is, very few people even read the LA Times anymore, and there is virtually no coverage at all about DWP Reform on the cable and network television “news” channels. Even the CityWatch audience, great as it is, consists of a drop in the bucket in terms of the total number of registered voters in Los Angeles for the November 8 General Election. 

The Ballot Arguments 

It’s a shame, because the arguments for and against Charter Amendment RRR, aren’t really helpful in trying to understand what the Amendment is about and what it really means. Remember we tend to forget that, by definition, ballot arguments are political arguments, not analysis. Persuasion, not truth, is their goal. Further, the names associated with the pro Arguments are a bit misleading, as they imply wholehearted endorsement. 

For example, you will see Marcie Edwards (General Manager of DWP), Mel Levine (DWP Board President) and Dr. Fred Pickel (Ratepayer Advocate) listed on the YES statement. If you look beyond the names, however, their appearance as YES proponents does not imply unqualified enthusiasm. Marcie Edwards was appointed by the Mayor, and so was Mel Levine, and they serve at his pleasure. So you will never know what they really think. Dr. Pickel was charged with drafting the YES ballot argument itself, so again, his name does not necessarily reflect what his personal opinion/beliefs may be. 

Not to belabor the point, but the Mayor appoints the entire DWP Board of Directors, guaranteeing that, notwithstanding what they might want or say in private, their input had little to do with the City Council sausage making machine that produced Charter Amendment RRR. 

I don’t know who actually penned the NO argument, but it’s also fairly misleading, as you can expect from those opposed to a ballot measure. For example, RRR is described as a “power grab by the DWP,” but the measure was in fact concocted by the LA City Council, not the DWP. Actually, you could argue that DWP reform started out because Councilmember Fuentes was looking for another full time gig as a DWP Commissioner. This because the unpopular “worst legislator in California” knew he would be voted out of office if he ran again for City Council. 

A Taste of the Real Language 

Truth is, if you actually read the ballot language, it is some 16 pages of highly technical, complex and often difficult to understand language. Even those of us who have tracked the evolution of the measure from the beginning get buried in the verbiage. There is no simple “yes” or “no” answer to the proposed Charter amendment. 

Contracting 

While those in opposition to the measure cry out that the City Council will lose all authority over contracts by the proposed DWP Board, the actual language doesn’t say this. 

In one of those statutory gobbledygook twists of the English language, Section 245 of the LA City Charter, details the City Council’s ability to veto Board actions, including those of the DWP. The subsection containing the DWP’s ability to use delegated authority to enter into contracts, lists the following as being exempt from Council review: 

(8) … “actions of the Board of Water and Power Commissioners regarding contracts involving consideration reasonably valued at less than an amount specified by ordinance...” 

In other words, the LA City Council gets to write whatever ordinance they want that sets the threshold for Council review of DWP contracts. That amount could be the same as it is now, or it could be X millions of dollars. Either way, the City Council, not the DWP Board, determines the amount. Not only that, if I remember correctly, it only takes about 90 days to revise any ordinance that the Council doesn’t like. (Just in case they get it wrong the first time.) 

Civil Service 

If you think the delegation language is ambiguous, check out the so-called “elimination of Civil Service for DWP” referred to in the ballot arguments. I will not quote the proposed Charter text here, since the language goes on for about two pages in the Resolution and makes the contracting language look like a masterpiece of clarity. For the brave, you can read the full text of City Charter Amendment RRR here.  Look starting at the end of page 11 for the text concerning civil service. 

Honestly, even reading the language is no help unless you’re an expert on public sector employment law. As I noted in a prior CityWatch article:

“As to the proposed amendment on personnel and hiring, I can only say that my hat’s off to an absolute masterpiece of obfuscation, persiflage, and all round mealy-mouth platitudes. Clearly, over the years Council President Herb Wesson has mastered the art of writing a lot of words while saying nothing, and he has really outdone himself in this one. 

“For example, the ‘salary setting authority’ ‘may’ waive some or all of the Civil Service requirements ‘pursuant to a legally binding collectively bargained MOU.’ Then there are further requirements that the ‘waivers’ would have to maintain ‘specific merit system standards.’ Finally the Council ‘may’ but doesn’t have to, even designate the new DWP Board as the ‘salary setting authority.’” 

Unlimited power to set Rate Increases

The opponents of the measure argue that the DWP and its “bureaucrats” will have the unfettered ability to jack up our rates with virtually no oversight. I guess that’s worse than the City Council’s ability to do the same? 

Anyhow, the language of Charter Amendment RRR doesn’t support this contention. Section 676 (Strategic Plan and Rate Setting) provides for a series of four year rate/revenue plans, which the Council can approve or disapprove. Once approved, anything that exceeds the parameters of the plan has to be approved by the Council and the Mayor. Further, “The City Council, by ordinance, may further define the policies, projects, programs and revenue requirements that shall be within the parameters of the Plan.” 

While I know that the courts have ruled that ballot arguments can lie like a rug, there are legitimate reasons to question Amendment RRR without engaging in hyperbole. 

Our DWP Committee Forum/Debate 

The complexity of DWP Reform was made apparent at our own DWP Committee meeting on Saturday September 3, 2016. At the impromptu forum, our very own Jack Humphreville was the moderator, and the panelists were Dr. Pickel (Ratepayer Advocate and author of the YES argument), Tony Wilkinson (DWP MOU Chair and participant in the dialogue that produced Amendment RRR), and Nate Holden, long time politician and former City Councilmember from 1987-2003, who is signatory to the NO argument on the measure. 

Even this highly knowledgeable group couldn’t agree on what the language of Charter Amendment RRR means. For example, the much ballyhooed crux of the reform measure has to do with how the city civil service system would be handled if the measure passes. Proponents admitted that there was no certainty as to the outcome or even if there would be any changes, and opponents said that the civil service system as we know it would be utterly destroyed if RRR passes. Dr. Pickel, of course, could not weigh in as we were in a City facility and he was author of the YES language. 

Let’s look at reality. Brian D’Arcy’s IBEW Local 18 is the 800-pound gorilla in the DWP World. This powerful union represents most of the Department’s employees and is not shy about flexing its muscle. Well, surprise, surprise: Local 18 is quietly in favor of the DWP Reform measure, although you would be hard pressed to find much in the way of public statements to that effect. The much smaller peripheral unions -- in terms of DWP membership -- are vigorously opposed to the measure, partly in fear that the idea could spread to the rest of the City, and partly because they lack the clout that Local 18 has with the Department. 

For further detail, and an alternate point of view, check out Julie Butcher’s recent CityWatch article describing the Charter Amendment as “Wrong, Wrong, Wrong!” Actually, her opposition to RRR is a much better read than the ballot arguments. 

The Takeaway 

Love it or hate it, the language of RRR is the necessarily flawed result of the LA City Council-Mayor-City Attorney meat grinder as they desperately try to shift the focus from their own incompetence in overseeing the DWP, the potential fiscal disaster if they lose the current lawsuit over the transfer fees annually extorted from DWP, and the huge ratepayer pushback over recent DWP rate increases. 

My personal belief is that this measure is poorly written and the language itself is difficult to read, much less understand. Given all the paid city staff available to write and vet the endless revisions, I think that this much obfuscation has to be deliberate. Further, I am unable to find the bag of goodies for us, the electorate, in Charter Amendment RRR that would motivate an actual ratepayer to vote yes.

Most voters I know, faced with a confusing ballot measure which will definitely have a long lasting impact on every ratepayer in the City of Los Angeles, will tend to throw their hands up in the air and simply vote NO! 

I find their cynicism to be well founded when it concerns City Hall and I agree with that sentiment.

(Tony Butka is an Eastside community activist, who has served on a neighborhood council, has a background in government and is a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.) 

GELFAND’S WORLD--Want to chat with Hillary Clinton? You can have the pleasure this coming Tuesday at the home of Seth MacFarlane. You just have to contribute thirty-three thousand, four hundred dollars. Another opportunity for that chat is to have dinner at the home of Diane von Furstenberg and Barry Diller. That one will set you back a hundred thousand dollars per couple. If those are a little rich for your blood, there are a couple of conversations with Tim Kaine (he's the guy running for Vice President) for anything from $2700 to $100,000. The higher priced tickets (starting at ten thousand) get you into the home of Eva Longoria who, unlike most of the others, does not seem to live in Beverly Hills. (Photo above: Hillary Clinton and George Clooney at Clinton fundraiser.) 

Meanwhile, I was having the $2.99 special at Der Weinerschnitzel last night. If I had waited another day, I could have had the $1.29 special on the mini-sundae. 

I'm not sure how I ended up on the email address list for all those lavish parties, but the underlying message is a little depressing. I'm all in favor of Hillary going after Trump with an advertising blitz and putting up well funded campaign HQs all over Florida and Ohio. That's the necessity. But it's too bad that Hillary's companionship in California is limited to the few people who can buy it. 

I bring this recitation up for two reasons. One is to remind you of an old story from back in the George W. Bush administration. The other is to remind my fellow Californians that we are a third class state when it comes to electoral politics. 

Of course it was possible at one time (anytime last year, actually) to meet all of the candidates for merely the price of a cup of coffee. All you had to do was to live in New Hampshire. They came looking for you at the local breakfast hangout. The residents of New Hampshire seem to think they have a divine right to the candidates' time and an equally divine right to choose first. The fact that winning the New Hampshire primary has become the presidential kiss of death seems to be lost on them. Nevertheless, we got to read about one New Hampshire woman who had already met with ten presidential candidates, but remained unsure. 

Meanwhile, 48 other states are left in the lurch. I'm leaving Iowa out of the equation because their caucuses really do go first in the nation and at least for Republicans, the Iowa caucuses are even more of a kiss of death than the New Hampshire primary. 

Want a chance to meet the candidates on the same terms as the New Englanders? Let's set the California primary for the same day as the New Hampshire primary. We don't want to define a particular date in advance, because if we do, the state of New Hampshire will move theirs up a week or three (that's their historical pattern). Instead, let's just define our primary as taking place on or before the date of any and all other states. 

Or, if California voters protest that the additional election would cost a lot of money, let's just put the cost on the political parties by getting rid of our presidential primary and turning California into a caucus state. We could set our caucus date as equal to or in advance of any and all other state caucuses and primaries. 

Of course the Democratic National Committee will probably resist. Let's just ignore them. They'll ultimately come around. The 2020 primary season would be a good time to give the new system a tryout. President Clinton won't have much opposition, so we can treat the 2020 California caucuses as a dry run. Then in 2024, Californians will have the pleasure of going to the local Dennys to meet with candidates Kaine, Clinton the younger, and Jerry Brown. And you'll save that hundred thousand dollars. 

The story I promised you: Back when W was president, one of his top ranking officials was scheduled to do a fund raising dinner here in Los Angeles. It was a mere $2500 per person, but that's still quite a bit for us normal people. At the time, Kevin Drum was blogging for Washington Monthly, and he announced (a bit tongue in cheek, I have to imagine) that if you didn't want to pay to meet with the Bushites, you could join him for lunch at the Farmers Market over on Fairfax. The Farmers Market did extremely well that day, as most of the top bloggers of that era (and Arianna Huffington) showed up. And it was a ninety-nine point seven percent reduction in the price. 

Another dog that didn't bark 

School has started. This year, children entering the first grade in California are required to be up to date on their immunizations, and seventh graders are required to be up to date on whooping cough immunization. A new state law took away parents' rights to refuse vaccinations through what was known as a personal belief exemption. The PBE is no more. The only current exception is a medical condition that makes it unwise to give the injections. The law (SB277) was passed over the objections of a couple of thousand people who stalked the corridors of the state capitol and packed legislative hearings. 

What's interesting about the beginning of this school year is how little public outcry we have seen. I invite the reader to try to recall a television news story about an anti-vaccination protest demonstration this school term. The subject seems to have dropped off the radar. It's the old Sherlock Holmes line (now having become a cliche) of the dog that didn't bark. 

When SB277 was being debated, the opposition made it sound like it would be the imposition of fascism stirred and simmered with genocide. The more extreme opponents made a fetish of the term "vaccine injured" in their attempt to push the very-much-disproven argument that vaccines induce autism in some children. (Carefully done epidemiological studies following millions of children showed otherwise.) But still the angry parents flocked to Sacramento and carried out demonstrations in Los Angeles. Then the law was passed. The opponents tried to get the measure placed on the state ballot, but failed to gain the necessary number of signatures. 

Opponents vowed to continue the fight. They filed a lawsuit, but a federal judge denied a request for an injunction.  Of course the vaccine opponents pledge to continue, but the general tendency of the law is not with them.  

So what is actually going on in the real world of public education? Los Angeles Unified School District (LAUSD) spokesperson Ellen Morgan points out that for one requirement -- that entering seventh graders have an up to date immunization against whooping cough -- the compliance is close to 100 percent. The department is following up on immunization records for entering first graders, which involves a lot of tedious analysis of written records, but the preliminary indication is that the district is doing extremely well. 

There may be a simple answer to why the most strident anti-vaccination people are remaining fairly quiet, at least in public. The text of SB277 allowed for a reasonable accommodation for those who cannot or should not be vaccinated. This includes some children who have immune deficiencies and some children who have undergone chemotherapy recently. But the law did not specify precise limits on the ability of doctors to write exemptions. As the law was being debated in Sacramento, some doctors began to circulate the message that they would bend over backwards to help anti-vaccination families get exemptions. A few doctors wrote fairly long lists of things that might induce them to write exemptions, ranging from allergies to vaccine reactions among distant relatives. 

Parents who are particularly anti-vaccine and can afford the medical bills can shop for a doctor who will write an exemption. That may be what is going on in California this year. Other parents who aren't so dogmatic probably scribbled out personal belief exemptions in the past, because they hadn't taken the time to get their kids to all the scheduled injections. School was starting, and filling out a form solved their problem. 

We will probably discover that a lot of students who would have presented PBEs in the past are now getting their injections. It's simply a matter of figuring out that it is easier to take your kids to an immunization clinic or to a pediatrician than to be forced to home school your children.

(Bob Gelfand writes on science, culture, and politics for City Watch. He can be reached at [email protected]) 

-cw

UPRIGHTING THE PLANNING DEPARTMENT-After the Superior Court ruled that Los Angeles’s planning and building officials had, for the past six years, been unlawfully refusing to follow the City’s ordinance regulating second dwelling units (SDUs) and ordered them to stop doing so, these same officials cooked up an ingenious scheme to circumvent the Court’s ruling. The Planning Department would prepare a report proposing that the City Council should simply repeal the SDU ordinance.    

The Department’s report, they schemed, would misleadingly assert that repeal was the only feasible choice. In fact, the Court identified three choices. It would confirm that repeal of the adopted standards would hardly make any difference. In fact, the existing standards are the only protections that LA’s single family neighborhoods have against “by right” SDU development. 

With repeal and the ensuing application of the state “default” standards, extra-large SDUs that are the same size as many primary residences could be built, and designated “hillside” areas would no longer be protected from SDU development. Importantly, the Department would “fast track” its repeal proposal, giving only the minimum required legal notice so that neighborhood councils and homeowner associations would not have sufficient time to inform themselves about the proposal, let alone develop formal positions and provide useful testimony and input. 

A clever but reprehensible scheme, and, fortunately, one that utterly failed. At its August 31 meeting, the City Council unanimously rejected the Department’s repeal proposal. The five Council members (Nury Martinez, David Ryu, Paul Koretz, Paul Krekorian and Bob Blumenfield) who co-authored the motion to reject the repeal proposal -- and their hardworking staffs -- deserve full credit for standing up to protect our neighborhoods. Council members Martinez, Ryu and Koretz, in particular, did the heaving lifting to obtain unanimous Council support, while Council President Herb Wesson and his staff forcefully weighed in to develop the consensus vote for neighborhood protection. 

LA’s neighborhood councils and homeowner associations showed they would not be bullied by the Department’s arrogant approach and that they can act quickly and effectively to call, write and meet with Council members. They played a key role in educating the Council about the vital importance of LA’s protective standards against the negative impacts of too-large and poorly located SDU development. They also developed convincing testimony that the Department’s report failed to consider the potentially serious cumulative negative impacts the repeal proposal would have on LA’s already stressed infrastructure. After all, repeal would be tantamount to rezoning all single family R-1 zones into R-2 zones, since the “default” standards would effectively allow, by right, a second, similarly sized residence on every lot.  

Altogether it was a very bad day in Council for the Planning Department. Not only did the Council firmly reject repeal, but the Council’s motion makes it clear that -- in stark contrast to the fast tracked, closed and slipshod process the Department followed for its repeal proposal -- it must now, looking to the future, initiate a new code amendment process to develop new SDU standards with a “comprehensive, open and transparent review” process. Take that, Planning Department! 

Further, in contrast to the Department’s proposal’s to use repeal to replace LA’s existing local standards with the very permissive “one size fits all” state “default” standards, the Council’s motion directs that the new LA standards must take into account “the unique characteristics of each geographic area of the city that may result in certain limitations and prohibitions” regarding SDU development. On the chin, Planning Department! 

And yet the Department’s hubris seems to know no bounds. When Council President Wesson was describing to the new Planning Director, Vince Bertoni, how its motion expects the Department to quickly bring back an “interim solution” that the Council can present to the Court and that the City can enforce until such time as the new code amendment is finalized, Bertoni appeared completely tone deaf. 

The Council motion called for the Department to prepare an administrative memorandum similar to the one issued by the Chief Zoning Administrator in 2003. In that memo, then CZA Robert Janovici had invoked the very limited power AB 1866 gives local governments to treat previous discretionary CUP procedures as “null and void” so that SDU permits can be issued “by right.” 

Since the City had successfully used the 2003 memo to administer SDU applications for seven years from 2003 to 2010 and since the memo had been explicitly approved by the Superior Court (and even identified by the Court as one of the Council’s three options going forward,) the task of preparing a similar memo to delete the discretionary CUP procedures should likely take about only an afternoon or two of work.   

Wesson pressed Bertoni about how long it would take before the new administrative memo would be presented to the Council. Not just a few days, Bertoni responded. He saw it as taking perhaps “several weeks.” Why? Because, Bertoni explained, he and his staff wanted to go behind-closed-doors with the City Attorney representatives in order to undertake a wide-ranging fishing expedition by which the Department would “pick and choose” which parts of the existing SDU standards appear to pass legal muster in the Department’s eyes. After all, the Department wouldn’t want to be administering illegal SDU standards. 

As an example of this “picking and choosing” effort, Bertoni focused on the adopted LA standard that allows SDUs only on lots that are at least 7,500 sq. ft. According to Bertoni, most LA single family lots are not this large, and in some geographic areas, only a relatively few lots meet this standard. Bertoni then ventured his opinion that, under state law, a city “can’t completely prohibit SDUs overall in the city or in geographical areas” unless it makes very detailed, hard-to-establish findings. Consequently, after some new fact research, the existing 7,500 sq. ft. standard may not make it into the CZA’s interim standards memo. 

Yipes! Does the new Planning Director really intend for us to take him seriously? If so, he shouldn’t be uttering sheer hokum. What’s wrong with it? 

It’s a fundamental part of the American legal system that bureaucrats do not have power to “pick and choose” which ordinance provisions they think are “illegal” and refuse to enforce them. They take an oath of office to defend and enforce the laws that have been enacted and, if they disagree with some of those laws, or have doubts about their legality, there are legally acceptable ways for that determination to be made, rather than issuing unilateral administrative fiats.  

AB 1866 gave local officials a very limited specific authority to declare “null and void” certain discretionary CUP procedural mechanisms, based on the unique circumstances that had led to enactment of AB 1866. 

In preparing the 2003 memorandum, then-CZA Janovici carefully limited his “null and void” determinations only to whether a provision was discretionary or mandatory, and not to undertaking a wide-ranging fishing expedition to question whether there might be any legal or policy issues regarding other standards. Bertoni has missed this fundamental point. 

Bertoni also has no idea what the legal standard is. State law explicitly provides cities like LA with authority to establish planning/environmental standards for determining where SDUs can and can’t be properly located, stating that a local second unit ordinance “may do any of the following: (A) designate areas within the jurisdiction… where second units may be permitted.  

The designations of areas may be based on criteria that may include but are not limited to, the adequacy of water and sewer services and the impact of second units on traffic flow.” Bertoni’s obscure legal pronouncement seems wrongly derived from a completely different portion of the statute that forbids cities from “totally preclud[ing]” SDUs from their territorial boundaries altogether, unless they can make the findings in question.  

Ironically, Bertoni recently left employment as Pasadena’s Planning Director.  Pasadena has a 15,000 sq. ft. minimum lot size for SDUs, far greater than LA’s 7,500 sq. ft. size that he now claims presents legal difficulties. 

Once Bertoni and his colleagues open the question of excluding SDUs from LA lots smaller than 7,500 sq. ft., their attention would likely next turn to the adopted LA standard that precludes SDUs from designated “hillside” areas. 

This standard, too, would be suspect under Bertoni’s described legal criteria. Large areas of the Los Angeles are designated “hillside” for obvious environmental and planning reasons. But Bertoni and his team apparently believe that they have authority to determine that LA’s prohibition on SDUs in hillside areas is inconsistent with state law unless the difficult-to-make “findings” can be applied to those areas.  

The existing “hillside” SDU prohibition, of course, is highly valued by many neighborhood councils and homeowner associations, and there is no Department-proposed “pick and choose” exercise that would be more likely to raise their hackles. 

Director Bertoni misses the irony in his proposal to go behind-closed-doors to use some conjectured “lawfulness” criteria as the means of preparing the “interim solution” CZA memo. The Council has just vigorously yanked the Department’s chain for its ill-conceived closed, fast-tracked process followed in its repeal proposal, dictating instead that an open, thoughtful and transparent process be used to develop changes in the City’s SDU standards. It looks like the Council now needs to put Bertoni on a very short leash and quickly terminate his weeks-long “picking and choosing” fishing expedition approach for preparing the interim SDU administrative memo.

(Carlyle Hall is an environmental and land use lawyer in Los Angeles who founded the Center for Law in the Public Interest and litigated the well-known AB 283 litigation, in which the Superior Court ordered the City to rezone about one third of the properties within its territorial boundaries (an area the size of Chicago) to bring them into consistency with its 35 community plans. He also co-founded LA Neighbors in Action, which has recently been litigating with the City over its second dwelling unit policies and practices.) Prepped for CityWatch by Linda Abrams.