What I Say

Memo to City Council: You Fought the Law, and the Law Won.

By Frank Gruber

Tuesday night the City Council faced the result of a shameful episode of squeaky wheel politics, namely, the City's flaunting of the state law requiring the inclusion of second units in single family (R-1) zoned districts.

Naturally, the council punted, referring the matter back to staff. You see, there wasn't enough "public input," as only five speakers addressed the council, and one of them was the attorney, James Isaacs, who took and won the case challenging the City's ordinance that limited occupancy of second units to relatives and care-givers (i.e., no renters).

Unsure of what to do without a horde of homeowners to advise them, the council asked staff to return with more research and, presumably, more "public.

As a result of the court decision, the City now has a relatively strict, but more or less reasonable, second unit ordinance in effect, and we can see if it leads to the disaster the screaming homeowners predicted.

Coincidentally, Tuesday's agenda included not only staff's request for guidance about what to do next with second units, but also, for the closed-session, the council's consideration of Isaac's request for fees under the law that allows attorneys to collect from losing defendants for vindicating important public rights.

My guess is that if the City doesn't settle with Isaacs, he will have a good claim to make to the court, and once again the City will pay lots of money for someone else's lawyer.

The City Council, in a series of votes since 1996, with a majority that has included sitting members Ken Genser, Kevin McKeown and Robert Holbrook, ignored the advice of its own attorneys and planning staff and forced planning staff to develop "findings" to support the result Council wanted to achieve. (To give credit where credit is due, Mayor Michael Feinstein has consistently voted in favor of second units.)

Everyone in Santa Monica should read the decision of the Court of Appeal in this case, which one can find at http://www.landuselaw.edu/coalition.htm

Be sure to read to the end, where the court dismisses the City's claim that it could, under the law, ban second units entirely based on its "findings," which Council based entirely on anecdotal evidence supplied by homeowners.

As the court said, "it is questionable whether the City's findings, based not on population or traffic or any other kind of studies, but solely on opinions expressed by residents of R-1 districts, could constitute the required statutory findings."

Squeaky wheel government at its worst.

In response to the court's decision on Santa Monica's ordinance, staff gave the council three alternatives. The first was to do nothing, in which case the existing law allowing second units subject to obtaining a use permit would be in force, but with no limitation on who, including renters, could occupy the unit.

The second option was to restrict the number of second units in a particular area, "to preserve the character of single family neighborhoods by ensuring that the majority of lots would be developed with only one unit."

What if more than a majority of lots were developed with more than one unit? Wouldn't that mean that the majority of homeowners had effectively decided that they didn't care if the majority of lots had more than one unit?

Staff's third option was to prohibit all second units. Staff, in this case the normally estimable Marsha Moutrie and Barry Rosenbaum, told Council that this would be "consistent with the findings in the present ordinance." But didn't the Court of Appeal just relegate these findings to the scrap heap of history?

I only met James Isaacs Tuesday night, and he seems like a good fellow, and maybe he has kids to get through college, but do we have to hand him another lawsuit on a silver platter?

Even if the council punted, some of what its members said at the hearing deserves study.

Kevin McKeown said, soulfully and as if on cue, "In Santa Monica we value diversity," and went on to say that the "diversity" Santa Monica values includes single-family neighborhoods.

Let me tell you something: if Santa Monica were in South Africa, Kevin McKeown would be on a hunger strike.

That is because, with the exception of a few neighborhoods, Santa Monica is segregated. North of Wilshire, only 1 percent of the population is African-American and only about 5 percent is Hispanic, even though blacks and Hispanics make up 20 percent of Santa Monica's population as a whole. The R-1 areas in Sunset Park are also overwhelmingly white.

An amount equal to 31.43 percent of all of Santa Monica's land, and 47.18 percent of its residentially-zoned land, is zoned R-1. Restrictive covenants once segregated these areas by race. Now these areas are out of bounds to anyone unable to make a large down payment.

The courts have made it clear that when cities try to preserve "neighborhood character" they cannot be thinking about who the neighbors are, but only the physical character of the buildings. Yet it is clear from the comments of people who oppose second units that they have no problem with the buildings themselves, but only with the people who might live in them -- namely, renters.

I don't want to be overly broad in my criticism: back in 1996, when the ordinance was debated, there were R-1 district homeowners who testified in favor of second units, although the council ignored what they said.

The City Council chose to listen to the people who live in single-family neighborhoods who prize, above all, the homogeneity of their neighbors. They don't want to live with people who are poorer than they are, so they oppose second units, and they don't want to live with people who are richer than they are, so they oppose monster mansions.

Of course, one cannot assume that owners of second units will rent them to poor people or to minorities. This has been one of the arguments Ken Genser has used to rationalize his votes against second units.

But this argument ignores one thing: the law. The legislature has already decided that regardless what Genser thinks, second units are part of R-1 zoning.

Do squeaky wheels grind slow and fine?