Back in the year 2000, the Los Angeles City Council passed a comprehensive zoning ordinance making numerous changes to the city’s Municipal Code to implement the 1999 city charter reform. One consequential change, however, had nothing to do with the charter reform. City officials quietly slipped it into the ordinance. The change, for years, allowed developers and homeowners throughout the city to get variances to exceed zoning limits on residential floor area (set in the city’s Baseline Mansionization Ordinance, known as the BMO), density (lot area per unit) and height, to reduce yard setback requirements, or to encroach into a building line required by ordinance, all without establishing the stringent prerequisites for variances required by the city charter. (Los Angeles City Charter, § 562.)
By the city charter, the city’s Zoning Administrators may not grant variances unless they make five written findings showing that those prerequisites are met. These findings serve to protect the interests of city residents and homeowners who live nearby the property for which a variance is sought — to “enhance total community welfare” through “mutual restriction” as California’s highest court famously wrote in a landmark variance decision. For example, Zoning Administrators must find a variance necessary for the preservation of a substantial property right possessed by other property in the same zone and vicinity but which, because of special circumstances and practical difficulties or unnecessary hardships, is denied to the property seeking the variance. The special circumstances must relate to lot size, shape, topography, location or surroundings that do not apply to other property in the same zone and vicinity.
For variances up to a certain size, the 2000 ordinance watered down the charter-mandated findings and granted Zoning Administrators the authority to approve those variances, based on the watered-down findings. (L.A. Mun. Code, § 12.28.) To hide the conflict with the charter, the ordinance labeled those variances “adjustments.” “Adjustments” could be obtained for variances of up to 10% of otherwise maximum permitted residential floor area, and up to 20% of otherwise maximum permitted density (lot area per unit) or height. In 2012, the City Council amended its Municipal Code again (section 12.28), and allowed these deviations from city zoning standards to be approved based on just three amorphous findings. These “adjustment” findings fall substantially short of the five variance findings mandated by the city charter.
Last Friday, the Los Angeles County Superior Court agreed. The court entered a judgment ordering the city to vacate a 9.9% “adjustment” from maximum permissible residential floor area for a remodeling project in the city’s exclusive Hancock Park neighborhood. (Kottler v. City of Los Angeles (Case No. BS154184, filed Feb. 23, 2015).) The project proponent wanted the “adjustment” to expand his 8,340 ft² mansion on June Street. A city zoning administrator and the Central Los Angeles Area planning commission had approved the “adjustment” without making the charter-mandated variance findings.
In a detailed statement of decision, Los Angeles County Superior Court Judge Robert H. O’Brien ruled that an “adjustment” is a variance by another name, and that under “the plain terms of the City’s own charter any such variance could only be made after the [Zoning Administrator] made five findings relating to the need for a special exception to the zoning requirements.” The jurist sternly reminded city officials that their permit actions must follow the city charter. “The charter of a charter city delineates the extent of its authority.”
“For years, city zoning administrators have been handing out variances masquerading as ‘adjustments’ without those variances being compliant with the city charter,” said Frank P. Angel, the attorney for plaintiffs Don and Marlene Kottler. “We are fortunate and grateful an experienced, highly-respected judge called out the city officials’ unlawful conduct,” Angel added.
“To maintain smart growth and responsible development, zoning administrators must look for clear justification for departures from zoning standards, said Richard Platkin, an adjunct instructor at USC’s Price School of Social Policy and former city planner who has worked in a supervisorial capacity on specific plans, design guidelines and interim control ordinances. “Adherence to the charter’s variance findings helps prevent the detrimental domino patterns of out-of-scale, oversized development that are overwhelming our residential neighborhoods,” Platkin added.
Charter requirements cannot be repealed by city officials as they go along; they can only be repealed by amending the charter, which under the California Constitution necessitates a vote of the people. “By flouting charter-mandated safeguards against unjustified variances, city officials have been trampling on the city voters’ constitutional franchise,” Angel said.
Angel Law is a Santa Monica-based boutique law firm formed in 1993, specializing in environmental, land use, sunshine (good government) and election laws.