November 30, 1988 - From the November, 1988 issue

TPR November 1988 - Full Issue

October 1988's issue marks the third in the TPR Online Archive series. Here the issue has a conversation with Kenneth Topping, then Director for the City of Los Angeles' Planning Department and an op-ed by Attorney Daniel Garcia former President of the Planning Commission. 


Kenneth Topping

Two Years at The Top

The Planning Report's Conversation with Kenneth Topping, Director for the City of Los Angeles' Planning Department

On June 30, 1986, Kenneth Topping, appointed by Mayor Bradley, was confirmed by the City Council as Planning Director, succeeding long-time planner Calvin Hamilton. Topping had previously been the Planning Director for San Bernardino before being promoted to Deputy Chief of the County's Environmental Public Works Agency. The Planning Director, who oversees a $15 million budget and 260 employees, reports to the City Planning Commission, the Council, and the Mayor's office. At his confirmation, Councilman Howard Finn remarked, "We won't know how Ken Topping is doing until 25 years from now." The Planning Report met recently with Topping as part of an ongoing discussion with him throughout the year to discuss the current focus of the Planning Department.

What areas are the Planning Department focusing on presently?

One of our major efforts has been to conclude all the work mandated on Assembly Bill 283, which insisted that city zoning has to be in compliance with the community plans of the city. The original zoning levels allowed under the community plan would have permitted 10 million people at build­out, and we've changed that to 4.2 million which is what the general plans reflect.

All of the existing community plans have now been matched with zoning. It's a Herculean effort that was done within the bounds of the consent decree's 3 year deadline. The program is almost complete---except for South Central, Boyle Heights, Van Nuys, and an industrial/residential area. In these pans, the zoning did not match the plan, but the property owners requested that the zoning stay the same while the planning be modified.

What’s been the importance of A.B. 283 in your planning process?

A.B. 283 has increased our capacity to map general planning, land use, and zoning information throughout the city. As we move into detailed community planning, we will be able to ask a lot of "What If?" questions as we're going along rather than having to wait until the vital decisions were made.

We're also working more closely with the Department of Transportation and that will allow us to anticipate future traffic demands for both auto-oriented trips and public transit We will then be able to determine more systematically and rationally what effects any changes in land use will have, not just for an area but for a given location. We will also be able to question whether or not the means can be found to make traffic flow more easily. We'll also have to determine what constraints there will be on land use alternatives.

How has the planning process been changing?

We now have the possibility for a new vision to emerge on how the city should develop. With more staff, we're getting much better at anticipating problems. A.B. 283 did several things. First, zoning will never again be divorced from planning as it has in the past. The work we did also highlighted some of the areas in the plan which need another look.

The need to get at a better level of air quality is also a pressure point, and the city's response to the Air Quality Management District's plan will be far-reaching. And we've got enough experience now with traffic linkage and demand management measures in certain parts of the city that we should be able to take those experiences and get a system of traffic management and transportation planning.

Several recent reports are discussing the idea of regional land use decisions.

There is a recognition now that many of the transportation issues are regional. Solutions aren't simply local. A lot of legislation is coming forward which would require greater coordination between cities--some formal coordination so that broad transportation plans are coordinated with land use. You can't go forward in this city just looking at land use. You have to also constantly consider transportation, planning, air quality, and housing.

Assemblyman Richard Katz is thinking of initiating legislation this year. But it's not just various assemblymen, it's a whole movement. Even the building industry is moving in this direction. We, in effect, do have regional land use through the Air Quality Management District. But there's a long term shift towards thinking beyond slow growth issues to planning for the refurbishment of the systems that exist or strategic improvements of the systems that are badly congested. We also have to stan bringing people's habits around to reducing single driver trips and getting more of a transit orientation. 

Why not merge the Departments of Transportation and Planning as a city structure?

The Department of Transportation is largely an engineering, operational organization. There's a small brain trust of planners with whom we now work. The idea is to build teamwork between the operations like we've done with the CRA. That's been an intensive effort over the last several years. We now have weekly joint management staff meetings. It'll take something like that to work with DOT. 

What is the current workload of the Planning Department?

Between the community plan revision program and the citywide program, we have a full plate. Above that, there are the hundreds of zoning modifications, general plan modifications and interim control ordinances that we are administering. We have close to 50 interim control ordinances in place which are a form of growth management, and it hasn't slowed down.

In April, when we place our Work Program for the year, we've had dozens of additional motions from the City Council on what ought to be done. We're now planning a 5 year strategic management plan by division within the department to get the work out. There is still an enormous overload in our neighborhood planning division. Our management of the whole system will rest on how well the Council cooperates with each other and recognizes priorities for the Work Management Program.

What particular ordinances are you keeping track of?

Well of course the Site Plan Ordinance is extremely critical to get out.(in this issue) The Planning Commission acted on it in July. It's been undergoing revision in the city attorney's office. The mini-mall ordinance is supposed to be coming out. That will hopefully be enacted and underway before too long. It was also acted upon in June by the Commission.

I think the Site Plan Ordinance is one of the most critical pieces of legislation that needs to get accomplished. We will close the gap between two systems we've run parallel--the by-right system and the discretionary system. It will integrate the Environmental Impact Report procedure which now often comes into action too late. We would like to see this integrated approach extended to the codes. People need to know what requirements are coming at a project before it's too far committed either on the public or private sides. After all, nobody likes nasty surprises.

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12 Years at the Planning Commission

A Retrospective by Daniel Garcia 

Attorney Daniel Garcia, former President of the Planning Commission, recently resigned after 12 years on the Commission. Below are the highlights of his farewell remarks to the staff of the Planning Department.

When I first began on the Commission in 1976, I had more hair and knew nothing about planning. Some things never change. I thought it was important to learn more about the relationship between the Planning Commission, the Planning Department, the Mayor's office, and the City Council. One publication noted that it is the task of most commissions to advise and direct the heads of departments, especially on policy matters.

Over the years, it's clear some City Council members have had little respect for the Department or the Commission because its members are appointed rather than elected. I think the resentment is a little less than what it was 12 years ago when the Department was viewed with contempt by some members of the Council. Also, some staff attitudes towards the Commission have varied as well.

No doubt some of you view us as unqualified part-timers while others have tried with great patience to teach us about the planning system. All of your efforts haven't gone unrewarded. 

In the city charter, the role of the Commission is a broad mandate to set policy for the Department and the city on the one hand, and give all real legislative power to the Council on the other. Because of the raw power exercised by the City Council over the Department's budget, it's been increasingly clear that they've completely dominated some work aspects of the Department. But this relation is symbiotic, and it's frustrating for Council offices who have to go through the trauma of the Commission hearings. But the Planning Commission process is part of the checks and balances of the system, and it's there for a reason. It's an important check because it's a continual reminder to local City Council offices that we are a city and the Commission has a citywide orientation. This city is not a collection of councilmanic spheres.

L.A. County presently contains 8.4 million people in its boundaries. If it grows at a mere 2% annually during the next 10 years, almost 2 million more people will be here. Most of this growth will be the excess of births over deaths of people who are already here rather than from migration. So we're really not talking about no growth or slow growth but about properly managing growth. The consequences of stopping everything are rather severe. We're all familiar with the debate.

So where have we been and where are we going? I'm not sure. It's clear that the politicians and the citizens and those involved with public policy alike have recognized the importance of planning. It's also clear through the media coverage that nobody really understands what the jurisdiction of planning and the Planning Department is and isn't. That's going to be one of the major challenges ahead of you.

In dealing with development, however, there are two lessons to consider. It's definitely the case that developers have to be more sensitive to their surroundings, that they're required at an earlier stage to deal with Council offices and with the Planning Department. I merely hope that all of you who are engaged in regulation keep reasonableness in some perspective.

By the same token, residents have to learn to be more patient and responsible. The NIMBY(Not in my backyard) syndrome simply cannot continue to exist From where I sit, I see a lot of selfishness on virtually every concern. Nobody wants anything near them no matter how much it's needed in the region. We simply can't allow in this system for people to get away with a cheap shot, the cheap solution. Stopping growth is not going to make the traffic go away. Nor will it provide the economic basis necessary to maintain and upgrade our infrastructure for the future. Most of the problems that people complain about most on a block by block basis are a result not of the planning activities of the City of Los Angeles, but of a regional phenomenon.

20 years ago the term "growth" was an important, viable and liked concept by the citizens of this state. People recognized the need for economic and population growth. Today it's a dirty word. The fact is that the attitudes have changed but not the reality. Economic growth means it has implications for our present as well as our future. The means to achieve reasonable growth are well within the framework and tools of the Planning Department. Learning how to develop them in a comprehensive way is going to be a very serious challenge in which you will play one of the most essential roles.

Remember that we need a city, not just a series of fragmented suburbs. Remember it's always easier to oppose than to propose. Remember that the law is clear that development of one's own property is a right, not a privilege according to the U.S. Supreme Court, subject only to the ability of local government to impose reasonable regulations. Remember that economic concerns or impact should never be ignored when enacting or considering regulation.

During my administration as President of the Commission, I sought to bring rationality and intellectual honesty to the planning policies of the city. Having failed at that endeavor, I have settled on several of the following: First, I think we forced all the parties on the Commission to discuss the issues and not dwell in the rhetoric. Second, I think we explained the reasons for our decisions. Thirdly, we favored increased regulation over development in a fashion designed to allow acceptable levels of development in certain areas of the city. And finally I think we challenged all parties and interest groups in the city including the academic and design communities to join in the fracas.

The bottom line is history may or may not be kind to this administration, but the fact is we've consistently brought ideas and integrity to the planning system and the planning process.

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DEVELOPMENT FEE UPDATE: 

BLANK CHECKS AND OPEN-ENDED FEE CONDITIONS 

By Clare Bronowski, Attorney, Manatt, Phelps, Rothenberg & Phillips 

Two recent legal developments impact how cities and counties establish and impose development fees. A 1988 Supreme Court decision and new state legislation which takes effect in January provide some guidance to developers who want to know if and when cities can require them to write "blank checks" for development fees.

In Russ Building Partnership v. City and County of San Francisco, 44 Cal.3d 839 (1988), the California Supreme Court upheld the retroactive imposition of a public transit fee on projects approved almost three years before the fee ordinance was adopted. The Court found that an open-ended "blank check" condition requiring mitigation of adverse impacts on the city's public transportation system required the developers to pay the later-enacted fee.

In Russ Building, the developers accepted a condition of approval in 1979 requiring them to "participate in a downtown assessment district, or similar fair and appropriate mechanism to provide funds for maintaining and augmenting transportation service, should such a mechanism be established by the City." In 1981, the city passed a transit fee ordinance applicable to all new downtown projects.

The city attempted to impose the new transit fee on the Russ building developers, to the tune of over two million dollars each for two of the projects. The developers challenged the fee on the grounds that their projects were vested and that the fee was not contemplated by the condition of approval. The Supreme Court, however, construed the language of the condition to include the fee approved by the city and required the developers to make good on their "blank check" condition. 

The decision will undoubtedly encourage the continued use of open-ended "blank check" conditions of approval, such as the traffic mitigation conditions now applied by the City of Los Angeles, under a variety of "interim" traffic mitigation ordinances throughout the City.

However, to check the unbridled assessment and collection of development fees, the Legislature has imposed new statutory requirements on the imposition of fees by cities. Current law provides that there must be a reasonable relationship, or "nexus," between the burden created by the new development and the fee or exaction imposed as a condition of approval. Furthermore, the fee must not exceed the estimated reasonable cost of providing the service or facility for which the fee or exaction is imposed.

Effective January 1, 1989, Government Code Sections 66000 - 66003 will require that any local agency which establishes, increases or imposes a fee as a condition of approval of a development project must make specified findings to establish and document the nexus between the fee and the burden of the new development.

In addition, cities must segregate the fees in special accounts and make findings after five years regarding unexpended or uncommitted fees. Finally, a city must refund unexpended or uncommitted fees for which a need cannot be demonstrated after five years.

This legislation provides some limitation to the amount which can be assessed under a "blank check" condition and provides a procedural safeguard against the imposition of excessive fees. This statute also provides a mechanism for developers and the public to ensure that development fees are ultimately expended for the public improvements for which they were collected.

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CITY OF LOS ANGELES

CALIFORNIA

 

Draft of Site Plan Ordinance CF 87-0986

(As approved by the City Planning

Commission in July, 1988 and currently

with the City Attorney’s Office.)

 

An ordinance adding that Chapter 1, Article 6, and amending Sections 12.22, 12.24, and 19.01 of the Los Angeles Municipal Code to require a site plan review or a conditional use approval for certain development projects, and to establish fees for the processing of site plan reviews and appeals.

WHEREAS, development projects may result in significant environmental impacts, such as sewer system overload, shadow impacts, or traffic congestion, even at locations where permitted by applicable zoning; and

WHEREAS, the issuance of building permits for development projects without discretionary review severely limits the City's ability to mitigate project impacts and to comply with the California Environmental Quality Act (CEQA); and 

WHEREAS, discretionary review of development projects will enable the City to impose conditions or require project alternatives to mitigate environmental impacts, and to fulfill its obligations under CEQA; and

WHEREAS, such review will also enhance the City's ability to manage its growth and development, by allowing for the imposition of conditions to improve the compatibility of development projects with their sites, surrounding areas and the availability of infrastructure.

NOW, THEREFORE,

            THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN

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            AS FOLLOWS; 

Section 1. The Los Angeles Municipal Code is hereby amended by adding a new Section 16.00 to Article 6, Chapter 1, to read as follows:

Sec. 16.00 -- SITE PLAN REVIEW

Purpose.           The purpose of site plan review is to promote orderly development, recognize and mitigate environmental impacts, and promote public safety and the general welfare by ensuring that development projects are properly related to their sites, surrounding properties, traffic circulation, sewer, infrastructure capability needs, and environmental setting; and to control or mitigate the development of projects which are likely to have a detrimental effect on the environment as identified in the City's environmental review process, or on surrounding properties by reason of inadequate site planning or improvements.

Requirements

1. Site Plan Review.         

Except as provided in L.A.M.C. Section 12.24 B 1 and in Exceptions Section. no grading permit, foundation permit, building permit, or use of land permit shall be issued for any of the following development projects, unless a site plan approval has first been obtained pursuant to this Section. The following size thresholds shall apply to individual permits and also to the cumulative sum of related or successive permits which are part of a larger project, such as piecemeal additions to a building, or multiple buildings on a lot, as determined by the Director of Planning.

a. Any development project which creates or adds 40,000 gross square feet or more of nonresidential floor area, but less than the amount of floor area for which a conditional use approval is required under L.A.M.C. Section 12.24 B 1 (u).

b. Any development project which creates or adds 35 or more dwelling units or guest rooms, or combination thereof.

c. Any development project involving change of use of an existing building or structure which requires a building permit and which results in a net increase of 500 or more average daily vehicle trips as determined by using the trip generation actors promulgated by the Department of Transportation for the purposes of this Section.

2. Compliance with California Environmental Quality Act.

Unless made discretionary by any other provision of law, the approval of any permit for a project which does not exceed the thresholds set forth in Requirements Section and 12.24 B 1 (u) is ministerial and statutorily exempt from the California Environmental Quality Act.

3. Enforcement

No person shall construct, establish, or maintain any development project, nor shall any grading permit, foundation permit, building permit, use of land permit, or certificate of occupancy be issued for any development project approved by site plan review unless such project is in accordance with all requirements of that approval.

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Raising the CRA Cap: Pros and Cons

Question #1: Who will best spend the money?

Question #2: Do you like the CRA?

In January, 1988, Mayor Bradley proposed to raise the spending limit for the Community Redevelopment Agency from $750 million to $5 billion. The proposal has sparked a debate among the social services, the legal services, and the City Council about how the city can best spend the redevelopment-generated tax revenues.

As the result of a 1977 lawsuit initiated by Councilman Emani Bernardi, the CRA is limited to spending $750 million of incremental revenue from the Central Business District redevelopment area. After reaching the spending limit, subsequent revenue would accrue to the General Funds of the City, County, and School District. It is likely that this limit will be reached in approximately five years.

Anticipating the attainment of the limit, the Mayor's proposal to raise the cap would allocate 50% of the funds for the development of housing and homeless services by the CRA, while the remaining funds would facilitate development in the downtown area. The varied responses to the proposed plan center on feelings about the CRA and a concern about how to most appropriately spend the tax revenues.

"The CRA is an effective agency for developing low-income housing," claims Ruth Schwartz, executive director of Shelter Partnership, a non-profit organization designed to develop housing for the homeless. "The CRA has financed over 20,000 new or renovated units. The majority (62%) of all units are affordable to low and very low-income people. Of the city agencies, the CRA is certainly the least bureaucratic and most effective entity."

However, many do not share Schwartz's opinion. Bob Erlenbusch, the Co-Chair of Health Access Coalition, argues that "the CRA is not a housing agency, and it is therefore inappropriate to develop and implement a housing policy for the city of Los Angeles. The City Administrative Officer’s audit of the CRA also revealed that there is no accounting of how funds are spent; it has no guidelines for recommending projects and programs to be included in the City's Community Development Block Grant applications, and there is no clear way of measuring the Agency's performance." 

Disagreements also focus on how the money should be spent. Advocates of raising the limit claim that since federal and state support for housing has declined, the Mayor's proposal to spend $2.125 billion for housing and homeless services is "one of the most progressive housing measures proposed nationally by a city mayor," according to Schwartz.

Another concern of advocates is Proposition 4, the Gann Spending limit. If the cap is not raised, one-third of the revenues will go to the city; one-third to the County and one-third to special districts. The City and County, however, will soon reach their limit on the revenues they can collect under Prop 4. "If the cap is not increased," notes Schwartz, "the funds collected will probably have to be returned to the taxpayers and will not be available for essential services such as general relief and mental health clinics."

Critics of lifting the cap would agree that funds for public services are desperately needed, and therefore don't believe that $2.2 billion, the other 50% of spending by the CRA, should be diverted to commercial development. "When basic programs in L.A. and the County health system are on the verge of collapse, it's outrageous to spend taxpayer funds on condominiums, night clubs, and street lights downtown,". states Erlenbusch.

In light of Erlenbusch's arguments, he has helped organize the Campaign for Critical Needs, a coalition of community groups and advocates to challenge the Mayor’s proposal.

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Business Responds: Guidelines for Managed Growth

The Chamber of Commerce Releases “White Paper” 

Amidst the parade of slow-growth initiatives inundating Southern California, the business community has either ignored the problem of growth management or has fought back defensively against no-growth initiatives.

This is not the Sierra Club talking. In its first comprehensive statement on managed growth, the Los Angeles Area Chamber of Commerce calls upon business to lead the effort to accommodate the region's inevitable growth. The Chamber's white paper, "The Realities of Growth Management," is a reflection of the high priority the business community is giving to growth management, according to Chamber board member Richard Weiss.

"We will follow-up this report with publication and dissemination in order to get a political consensus moving," he notes. "The entire business community is gaining awareness that they have a stake in this area. It is no longer solely the concern of those who build houses." Weiss, who is also a member of the L.A. 2000 Committee, stresses that both groups will begin to demonstrate "the negative effect of our failure to provide planning and infrastructure."

Throughout the report, the Chamber emphasizes that growth must be "accommodating" because it is inevitable. Approximately 6 million additional bodies will be living in Southern California by the year 2010, and over 60% of the increase will be the result of indigenous growth, of births over deaths, rather than immigration. "This means that we would still have to absorb another Orange County over the next 22 years, even if we could somehow close the region's borders," states the analysis.

One solution to the array of development problems and challenges submitted by the chamber is a regional planning agency. It would have authority over major regional planning decisions consistent with the land use decisions adopted by local governments. 

Land use decisions are left to municipalities that have no way to develop a balanced, regional mix of uses," the report states. "This fragmentation prevents the development of a coherent growth management program to both minimize the negative effects of growth and distribute both the costs and benefits of growth equitably." 

One Chamber member, in fact, claims, "It's absolutely inevitable that we identify as a region. It's like going back to colonial times. We either hang together or hang separately." 

Similarly, the Chamber calls upon the consolidation of existing single purpose environmental agencies (such as the South Coast Air Quality Management District and the California Water Quality Control Boards) into one multipurpose environmental control agency.

The Chamber's report relied heavily upon a growth analysis prepared for SCAG which affirms that unless specific actions are undertaken by a coalition of business, labor, minority, and community leaders, there will be a serious threat to quality of life in Southern California by the year 2010.

*Traffic congestion will grow much worse. Daily trips will increase 45%, and the average daily speed on the entire freeway network could drop from 35 mph in 1984 to 19 mph by 2010. Our freeways and roads would consist of little more than "near gridlock."

*Air pollution will worsen. Traffic congestion and the increase in cars on the road could create more air pollution which would adversely affect the areas where most of the new affordable housing will be built--Riverside and San Bernardino Counties.

*Housing prices could rise dramatically, while other major infrastructure problems could occur when Los Angeles County runs out of sites to dump an ever-increasing amount of solid waste.

"The Los Angeles metropolitan region is at a critical mass," says Weiss. "This report says, wake up, we've got a problem."

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Land Use News in Review

Reduction at the Pavilion

Mayor Bradley, breaking with the Planning Commission and its unanimous approval of a 160,000-square-foot expansion of the Westside Pavilion, released a letter to the City Council calling for a one-third reduction in the size of the expansion. The Commission had initially approved the requested expansion by the developer, Westfield Inc., but Bradley sided with local homeowner groups and Councilman Yaroslavsky in their attempts to reduce the expansion to 105,000-square-feet. Some viewed the Mayor's move as an attempt to diminish his pro-growth reputation.

Slow Growth in Highland Park

An ordinance introduced to the Planning and Environment Committee by Councilwoman Gloria Molina would temporarily limit development in the historic sections of Highland Park which are part of the 1st Council District. The proposed ordinance is expected to be voted on by the council within the next two months and would be in effect for three years. Molina's measure would limit new projects as well as ban the demolition of tum-of-the-century houses and aging storefronts.

Fact or Fiction?: The Mini-Mall Moratorium

The July 1, 1987 City Council moratorium on new mini-mall development has not succeeded in slowing the growth of mini-malls in the city. Eight projects were approved before the law took effect because of city delays, eight new projects have received special city permits, and an additional eight have been exempted by the City Council. Further, the city's interim review process has failed to create standards of parking, landscaping, and sign requirements. However, some city officials claim that the recent number of new mini-mall projects has dwindled.

New Hotel on the Block, and City is Sued

Neighborhood groups near the Beverly Center, charging that a new hotel, Ma Maison Sofitel, was exacerbating traffic conditions, recently settled the dispute when the hotel agreed to spend an extra $800,000 on parking. Prior to the settlement, however, hotelier Severyn Ashkenazy, who owns seven first-class hotels in West Hollywood, has sued the city, charging it with "abusing its discretion" by approving construction of Ma Maison. Attorneys for Ma Maison believe Askenazy's suit to increase the amount of parking was an attempt to pressure the hotel into purchasing an adjacent property which Ashkenazy owns.

Wasn’t the Supreme Court Supposed to be Conservative?

Any legal doubts about the increasing use of developers fees for municipal services were swept away when the Supreme Court upheld a San Francisco ordinance which orders owners of new downtown projects to subsidize the transit system. The Supreme Court, with only Chief Justice William Rehnquist dissenting, agreed with the contention of local governments that new development projects which place an additional burden on public services must be responsible for subsidizing some of the greater cost. The Metro Rail board in Los Angeles, meanwhile, already plans to levy fees on property owners close to new subway stations.

Downtown, Brentwood-Style

Lowe Enterprises, a Brentwood development company, has purchased 112 acres of industrial and commercial land in downtown Los Angeles for $131 million. The project, centered on Alameda Street, reflects the increased activity on the southern fringe of downtown. Lowe Enterprises plans to renovate the historic Seventh Street Produce Market as well as many of the aging industrial buildings within the area.

Council Approves all 27 Stories

Councilman Zev Yarolslavsky and two Westwood homeowner groups lost a decisive vote in the City Council, 8-5, when the Council voted final approval to Cal Fed Enterprises to allow the development of a 27-story luxury condominium project on Wilshire Boulevard. Yaroslavsky's alternative for the project would have chopped off six floors from the building, yet this council vote, 7-6, was one vote shy of the eight needed for approval. The condominium project had previously been approved in August by the Planning Commission after a recently-created citizens' panel, the Westwood Design Review Board, failed to agree on whether the height of the building should be reduced.

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