CommentsLA’S NEIGHBORHOODS--Once again, the City Attorney’s office and the Planning Department have played the City Council for fools. This time around, the City’s legal advisors and planning bureaucrats blatantly lied on the Council floor, spinning a fabricated tale that, if the Council would approve Councilmember Mitch O’Farrell’s September 13 motion to open a window for 5 days at the end of September for new second unit applications to be filed under very permissive state “default” standards (rather than the City’s stricter adopted standards), only a handful of new applications would be filed -- probably only about seventeen.
O’Farrell stated that initially he had drafted his September 13 motion to “grandfather” only a handful of specific “stranded” second unit developers in his district who had been previously turned away by LADBS when they had sought to file their applications.
These additional grandfathered developers would be added to the hundred or more second unit applicants and permittees who had sought and/or obtained permits under the very permissive state “default” standards that the City had been illegally using since May 2010. In early 2016, the Superior Court had declared that the planning and building departments’ dubious policy of following permissive “default” standards, rather than the City’s own adopted, much stricter standards -- based on the City Attorney’s mistaken legal advice -- was unlawful, and it ordered those departments to stop following those “default” standards.
O’Farrell explained that, as he was drafting his September 13 motion, the City Attorney’s office persuaded him to expand it so it would open to one and all a 5-day end of September filing window for new applications under the permissive “default” standards.
Councilmember Paul Koretz vigorously objected, saying that, whenever the Council announces that loose zoning restrictions are about to be tightened up, very substantial increases in permit application filings (seeking to take advantage of those looser restrictions) are very common. Accordingly, the number of new second unit applicants filed during the 5-day window would probably be closer to a hundred, not a mere handful. LA Neighbors in Action also protested that LADBS’s second unit application forms are so simplistic that they present no practical difficulties at all to anyone seeking to take advantage of the 5-day window.
But Planning Department and City Attorney representatives repeatedly testified on the Council floor that the practical difficulties of filing a second unit application would limit the number of applications to a “very small” number. The 5-day window would be “fair” to the “very small” number of developers who would be in a position to take advantage of it, so it would not be overly disruptive to the surrounding single family residential neighborhoods throughout the City.
Specifically relying on their advice, Council members Krekorian, Blumenfield and Ryu expressed their support for O’Farrell’s motion, and the Council overwhelmingly approved O’Farrell’s proposed end of September 5-day window.
Now the results are in. The City Attorney recently reported to the Superior Court that, during the 5-day window, second unit developers filed fully 140 new applications -- almost ten times the City’s planning and legal advisors’ disingenuous projection, and, in one week, more than double the average annual number of second unit applications filed in the past dozen years!
These are not idle numbers. LADBS must now process and approve “by right” 140 newly filed second unit applications with no discretion to impose any mitigation measures. The proposed second units need merely meet very weak “default” standards allowing construction of oversized 1,200 SF second units -- the size of many primary residences and almost double the 640 SF that the City’s existing standards allow.
These oversized second units can be squeezed into backyards in single family neighborhoods throughout Los Angeles -- and sometimes into front yards! And, even though the City’s adopted standards would otherwise forbid it, the 140 second unit applications filed during the 5-day end of September “window” can be built in designated “hillside” areas and on “substandard” streets. (Ugly, severely impacting second units of the kind allowed under the default standards during the 5-day window can be seen in the attached photos.)
Notably, shortly after the Superior Court’s ruling earlier this year, the Planning Department strongly (but inaccurately) urged the Council that it had only one “feasible” option: repealing the City’s adopted strict second unit standards so that the state’s permissive standards would thereafter apply by “default.” This extreme proposal -- which the Department put on a fast-track approval process -- generated a storm of controversy.
Neighborhood Councils and homeowner associations throughout the City strongly objected, demanding that the City’s adopted protective second unit standards be maintained. Meanwhile, “stranded” developers demanded that their second units be grandfathered, since they had relied on the City’s unlawful second unit policies before the Superior Court declared them illegal.
Finally, on August 31, the Council approved a compromise motion addressing both side’s principal objectives. On one hand, “stranded” developers and applicants would be “grandfathered” so their proposed second units can be completed -- even if they exceed the adopted standards and negatively impact the surrounding neighborhoods. On the other hand, going forward, the Council would retain the existing adopted protective standards until, based on a transparent process with robust public outreach and study, it decided to change them while customizing them to the City’s diverse neighborhoods.
Matters appeared heading toward the Council’s approving an ordinance that would implement this compromise, until O’Farrell’s September 13 motion suddenly proposed the new 5-day late September open window allowing second units under the permissive default standards. To that point, the planning and legal bureaucrats had always argued that the proposed grandfathering could be justified, because, despite the negative “spillover” impacts of these oversized, improperly located second units, the financial impacts on the “stranded” developers arguably offset these neighborhood impacts. They emphasized that the stranded developers had “relied to their detriment” on the City’s unlawful second unit policies and practices, and, if they were stopped in mid-process, they might sue the City for substantial financial compensation.
But for the first time, O’Farrell’s September 13 motion proposed that during this late September 5-day window, second unit developers would not need to establish any “reliance interest” at all and yet would still be allowed to take advantage of the permissive default standards and inflict adverse impacts on their neighbors. Under O’Farrell’s motion, it was sufficient simply to submit an application and pay the required fee.
Since reliance would not be necessary, the Council members who backed O’Farrell’s motion stressed the Planning Department’s and City Attorney’s representations that only a “very small” number of applications -- about 17 -- could likely be filed during the 5-day window.
- Council member Krekorian, for example, was particularly fooled. Although he was led to expect only about 17 applications citywide, the recent City Attorney report to the court revealed that fully 23 applications were filed in his district alone. Krekorian will have some serious explaining to do to the 23 neighborhoods that will be disrupted and potentially devastated by oversized, poorly located second units.
- Similarly, a dozen second units in Council member Blumenfield’s district will now get away with conforming merely to the permissive “default” standards. Not exactly the “very small” number Blumenfield anticipated citywide.
- Some 19 new second units will be built in Council member Englander’s district under the permissive default standards. Did Englander realize that those 19 neighborhoods would be adversely impacted even though none of the developers in question needed to show they ever relied on the City’s prior unlawful conduct? What explanation will Englander give to homeowners who will have to live with new oversized second units peering into their backyards and bedrooms?
Notably, as with second unit permits issued throughout the past decade and a half, by far the most applications filed during the 5-day window (more than 100 of the 140 applications) will be located in the North and South San Fernando Valley. Twenty-two of the new second units will be sited on lots that City planners concede are “environmentally sensitive.”
Ironically, the City Attorney’s recent report to the Court related that only five of the new second unit applications filed during the 5-day window are located in O’Farrell’s district. If O’Farrell had ignored the City Attorney’s spurious advice to expand the scope of his motion, those five applicants -- the mere handful that he attested were his specific concern -- could have obtained their second unit applications without baselessly wreaking havoc on some 135 additional single family neighborhoods throughout Los Angeles.
Instead, O’Farrell allowed himself to get sucker punched by the City Attorney, while the Council again foolishly placed its trust in the Planning Department and City Attorney staffs’ testimony. Will this misplaced confidence just keep on going and going? Will they ever learn?
(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.
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