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Due Process is as Due Process does

By Frank Gruber

January 31, 2011 -- In 1983 in a still debatable decision, I left the law firm where I was drawing a good salary and opened my own practice. I changed from employee to small-business owner. Prior to this change, taxes had always been withheld from my paycheck and I gave them little thought. That fit my politics: as a liberal Democrat I supported government and the taxes government needs; since I never saw the money, my politics were painless.

Self-employed, however, I learned about “estimated tax payments” and “employer’s share of FICA.” An accountant I talked to told me, when I was trying to sort out the mess my taxes had become, “you have to remember; the government is always your partner.”

Until then I had never understood the visceral hatred Republican business people had towards government and taxes, since rationally it seems that business gets a good deal from the money government spends. (My reference on this subject is Warren Buffett.) My politics today are much the same as they were then, but when writing those quarterly checks to the U.S. Treasury and the Franchise Tax Board I can appreciate why business owners always rail about the need for “small government.”

This all came to mind last Tuesday evening as I watched the Santa Monica City Council ratify a crummy trick the Planning Department had proposed playing on developers who work in downtown Santa Monica. This time the lesson wasn’t about taxes, but about regulation.

I wrote a little about the issue last week, but what the council did was approve an interim ordinance that requires a development agreement for any downtown building more than 32 feet in height, meaning, by the way, any good development downtown because any development under 32 feet is going to be 100 percent commercial. (See story."Santa_Monica City Council_Approves Interim LUCE Ordinance", January 26, 2011)

The Planning Department told the council members they needed to give the department discretion over development downtown so that downtown projects could “meet community expectations as expressed in the LUCE” (the LUCE being, of course, the update passed last year to the land use and circulation elements of the City’s general plan).

The problem with this is that the Planning Department had kept downtown out of the LUCE process, and so there are no “community expectations” in the LUCE about downtown.

The City reviewed and amended downtown development standards between 2003 and 2006, and the department had told downtown property owners and developers that there would be a separate, “specific plan” process for downtown. If downtown had been included in the LUCE, then they would have participated in the process. If then a 32-foot threshold for requiring development agreements had been applied to downtown, and if “community standards” had been adopted for downtown, it would be fair to include downtown in the interim ordinance.

But that’s not what happened. There was no process.

Substantively, there isn’t an issue either. The principles in the LUCE that Planning Director Eileen Fogarty is so proud of did not originate in Santa Monica with the LUCE. As architect David Hibbert pointed out Tuesday night, these basic principles were first implemented downtown in the 90s, and then refined in the 2006 amendments. The LUCE “vision” is a further articulation of these principles, but the main focus of any originality in the LUCE is to apply them to areas of the city where a street grid does not exist but large parcels exist that can be developed according to master plans.

That’s not the case downtown, where there is already a grid and many small lots. Although a master plan was not feasible, the City’s standards allowed developers to build mixed-use projects with a lot of apartments in separate projects that still followed a “form-based” urban plan. The standards were clear enough that projects could proceed with administrative approvals.

Property owners, developers, their lenders and architects (in constant dialogue with the Planning Department and the Architectural Review Board) responded by taking considerable risks to build a product -- rental apartments above retail on downtown streets -- that Santa Monica needs but for which at the time there was no proven market.

There is no reason to make the building of these mixed-used projects discretionary. Those good ideas that came out of the LUCE process, such as “unbundling” parking, can be added to the requirements needed for an administrative approval. As seen in this photograph of a recently built project, developers are already incorporating, under the 2006 amendments, the wider sidewalks Ms. Fogarty says the LUCE vision demands.

Luxe Apts 1548 6th St., Santa Monica. Photo by Frank Gruber

It’s not like the council members Tuesday night didn’t know that they were messing with a good thing; three of them, Gleam Davis, Terry O’Day and Richard Bloom, went out of their way to say that when finally passed they want an interim zoning ordinance that keeps downtown development going. But they had heard a couple of dozen residents cry LUCE, LUCE, LUCE, and they caved and passed the ordinance.

As someone who supported LUCE from the beginning, this reverence for it is amusing. Do these no-growth residents, who even two years ago (remember RIFT?) thought LUCE was a developer-devised scheme, realize how favorable the LUCE is towards development? Especially commercial development? And then they support the Planning Department’s plan to make all development over 32 feet in height subject to development agreements; aren’t these the same people who have been apoplectic about the use of development agreements?

Of course the underlying issue is always traffic. But the housing built downtown has not created the traffic downtown. Residential development instead of commercial development reduces traffic. What was most disturbing about Ms. Fogarty’s presentation at the council meeting was her implication that she wanted to end the F.A.R. bonus for residential development downtown, which she said had “historically served its purpose.”

Memo to Santa Monicans Fearful of Change: be careful what you wish for; based on the LUCE, the Planning Department’s “vision” wherever it sees a station on the Expo line is more commercial development. You should be doing whatever you can to have more residential development downtown.

To get back to my recollections about taxes and Republicans, while I watched this charade, I couldn’t help but reflect on why business people distrust government. Sure, rationally I know that 30 years of activist government in Santa Monica has been good for the business community overall, very good, but emotionally? It’s one thing to be called greedy, but that goes with the territory. It’s another thing to rely on laws and process and then have the City hit you with a sucker punch.

Of the five administrative approval downtown projects that the staff said would be turned into development agreement projects, the applications for four of them date back to the years 2006-09. Even assuming the LUCE applied to downtown, only one of the five projects was initiated after LUCE was approved.

I’m all for government regulation of business, but the process has to be fair.

The rule of law should mean something, especially to the Left. As frequently happens, the musings of Council Member Kevin McKeown exemplified how wrong the whole thing was. What effective date to give the ordinance troubled the former Green Party champion of good government. The issue was whether to date the ordinance immediately or March 11; Ms. Fogarty told the council that the effect of delaying the effective date to March 11, which she commendably supported, would be to allow one project to proceed that had been in the pipeline so long that it was about to have its hearing at the ARB, the final step before approval.

This caused Mr. McKeown some agony; what if that one project was one he wouldn’t like? In that case, he’d want to vote for an immediate effective date. But he didn’t know. Hmmm. He ended up voting the staff recommendation and taking his chances with the March 11 date, but what about due process? The substance of his musings has a name: spot zoning, and it’s illegal.

Shouldn’t any poor slob have the confidence in government that if he risks all the money and time it takes to get a project to the ARB in Santa Monica, that the rules aren’t going to change at the last minute? Development agreements turn all zoning into spot zoning. That may be all right for a large parcel like the Papermate site, but it’s not all right when someone is trying to turn two lots downtown into 50 apartments.

If you believe in due process, you believe in it for the people on the other side of the argument.

Naturally it was Mr. McKeown -- trying to save himself from ever being mayor -- who embarrassed his fellow council members later in the evening by telling them that the names of their campaign contributors need to be available for anyone to review during council meetings. What was that supposed to mean? The information is available already, and is reported on in the press. What kind of liberal is this who -- Tea Party-like -- as much as accuses, without any evidence, his colleagues of being corrupt?

* * *

Postscript: Here’s a picture of the worst street frontage built downtown in the past 10 years. Who built it? The City. It’s the blue plastic wall in front of the new bus yard on Colorado.

Plastic Wall in Front of Bus Yard. Photo by Frank Gruber

Frank J. Gruber is the author of Urban Worrier: Making Politics Personal, available at Hennessey + Ingalls and Angel City books in Santa Monica, at City Image Press, and on


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