June 30, 1990 - From the June, 1990 issue

The L.A. Board of Zoning Appeals: An Insider’s View

Conditional use permits, development rights, variances—the technicality of land use and urban planning is extensive. The Los Angeles Board of Zoning Appeals (BZA) handles various disputes between the City, homeowner associations, developers, and other concerned stakeholders in zoning appeals. As the Vice-Chairman of the Board of Zoning Appeals, Joseph D. Mandel gives insight into the landscape that is the LA BZA. 

The Los Angeles Board of Zoning Appeals is one of the City's best kept land-planning secrets. Many of those involved in the land-use process, whether sophisticated or uninitiated, become aware of the Board only as they become immersed in an expensive and emotional dispute. Frequently the dispute could have been avoided with more foresight and a better grasp of the City’s zoning process.

I have served as a member of the Board for almost six years. During that time, I have seen it all—from homeowner efforts to frustrate the operations of major new hotels and restaurants by opposition to alcoholic beverage conditional use permits; to efforts by major commercial developers to gain additional development rights by using a variance procedure to adjust density from one portion of a property to another; to disputes between irate neighbors concerning the height of fences setbacks from property lines and configurations of tennis courts.

The Board is comprised of five members appointed by the Mayor and approved by the City Council. The Board’s current composition reflects the rich diversity of the Los Angeles community—two attorneys, a civil engineer, a financial advisor and a community activist; a Greek immigrant, two other Euro-Caucasians, an Haitian American and a Chinese American. Despite my more than 5½ years as a member of the Board, I rank only fourth in terms of longevity of service.

Perhaps the clearest way to conceptualize the Board’s role is to understand that it relates to the planning process as a court relates to a legislative body. The Board only addresses the specific cases and controversies appealed to it. The Board is not designed to be a policy-making body. Its Charter mandate is to determine whether a City planning official erred or abused his or her discretion. The Board must grant or deny an appeal by making certain specific legal findings which are set forth in the City’s Charter or Municipal Code.

The subject matter of the appeals held by the Board is almost as rich a mosaic as is the makeup of the citizens whose disputes are brought before the Board for resolution. In each instance, an appeal involves a review of an action taken either by a planning official, most often a zoning administrator. Issues range from issuance of permits for projects (such as mini-malls abutting residential uses) to very technical interpretations of the Municipal Code and City planning ordinances.

Most of the appeals which come before the Board are variance and conditional use cases. The variance appeals involve requests to waive or grant an exception to a requirement of the City’s Zoning Code. The conditional use appeals involve issuances of permits for requested uses in particular zones which are not allowed except by special permit. The Board is required to make very different findings and encounters very different issues in its consideration of these two types of cases.

Variance cases can be very frustrating for the Board members. This is a frustration borne of the awareness that many cases which come before the Board could have been resolved had applicants been provided with proper information early in the application process. The Municipal Code is complex and ever changing. Staff often is unaware of new ordinances, Zoning Code amendments or new interpretations or obscure provisions of the Zoning Code which directly impact an applicant’s project.

What is more, the rules may change after a project is underway. So even if an applicant follows the instructions and guidance of City staff and the applicant’s paid application processor, an applicant suddenly may find that a project violates some City regulation absent the receipt of a variance or exception from the law. Neighbors often become involved and, instead of attempting to work out a compromise which will make the project more acceptable to the neighborhood, the applicant and neighbors become bitter toward one another.

The resulting acrimony and inflexibility of the participants forces the Board to arbitrate a matter which should have been resolved at an early stage in the process. Board members feel sympathy for applicants who tried to follow the City rules and regulations, but is also sympathetic to neighbors who may be harmed by the grant of an exception to the law. The Board must be objective and fair, but the scope within which the Board must act is frustratingly narrow.

The Zoning Code states in unequivocal fashion that a variance may not be granted unless a variance applicant carries the burden with respect to each of five statutory findings. Each of the Commissioners, whether trained in the law or not, understands that a democratic system of government cannot long survive without a healthy respect for the rule of law. The rule of law requires that a quasi-judicial body such as the Board refrain from ignoring or acting in clear contravention of properly-enacted legislation.

This does not mean that a body such as the Board must act in a robot-like, solely ministerial way. It does mean, however, that the Board should properly confine its role to interpreting legal requirements when the requirements are unclear, to interpreting the applicability of the law to a given situation which does not seem to fit the intent of the law and to applying the law to a given set of facts.

The rigidity imposed by the five statutory variance findings frequently places the Board in an untenable and uncomfortable position. To the neighbors who may be opposed to the project more than to the variance itself, or to the applicant who is suffering some hardship, the resolution seems black and white, the answer easy. But the Board must make all five variance findings to grant the variance; the project per se is not before the Board.

In abbreviated fashion, a variance can only be granted where (1) the strict application of the Zoning Code results in practical difficulties or hardships which frustrate development of a property consistent with the intent of the Code; (2) special circumstances, such as topography, do not apply to similar properties; (3) the variance is necessary for the preservation of a property right enjoyed by similar properties; (4) the granting of the variance will not injure the public; and (5) the granting of the variance is consistent with the City’s General Plan.

In contrast to the rigidity of the statutory variance process, the Board is vested with enormous discretion and the broadest latitude when it reviews applications for conditional use permits. An applicant for a conditional use permit is entitled to a grant if that applicant can demonstrate that the proposed use is in harmony with development in the immediate neighborhood and is not materially detrimental to surrounding property owners.

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With respect to certain enumerated uses, other findings also must be made. Conditional use permits are required prior to commencement of a vast array of activities, including such disparate matters as the sale and dispensing of alcoholic beverages and the operation of sanitaria, hospitals, private schools and homes for the developmentally disabled.

At first blush, the depth of Board discretion seems desirable since it allows the decision maker to take into account all of the peculiarities and unique factors bearing upon the grant or denial of a conditional use permit. But standards as loose as those contained in the Zoning Code regarding conditional use permits provide little guidance to applicants and decision makers. They also result in the imposition of little, if any, constraint on the decision maker. The seeming injustices that sometimes result from the statutory rigidity that encumbers variance proceedings may be avoided, but the price that is paid is unpredictability. The decision rests exclusively with five citizen Board members. They must decide which evidence is the most persuasive and which evidence best supports the findings that must be made.

In recent years, the City Council has demonstrated an inclination and willingness to try to address recurring land use problems which are not addressed by the Municipal Code, the General Plan or geographically-oriented specific plans. The City Council is using a quasi-moratoria tool called the “interim control ordinance” to protect specific geographic areas in the City pending completion of plans, permanent ordinances or special studies.

For example, homeowners in some hill­side areas are concerned about two-and three-story homes which are being constructed on substandard lots on narrow, private, often dirt streets in neighborhoods which contain one-story single-family homes. Interim ordinances have been enacted to limit project size, to require additional parking and to require street improvements pending completion of a Municipal Code amendment.

When the City does adopt geographically specific plans or ordinances, the City attempts to establish height, bulk, design, historic preservation and other standards appropriate to a particular neighborhood or vicinity. The intent is to protect the neighborhood by addressing specific development problems.

Both the interim control ordinances and the specific plan ordinances contain procedures and requirements that allow project development permits to be obtained by property owners. The ordinances delegate project permit determinations to the Zoning Administrator or the City Planning Commission. In such cases, the ordinances provide general guidelines and provisions which must be interpreted by the decision maker. Zoning Administrator decisions are further appealable to the Board of Zoning Appeals.

The project permit cases often involve requests for exceptions to the standard provisions of the ordinance.

Typically, the Board finds itself called upon to interpret conflicting interpretations of the ordinance language and intent. Language to address a particular problem which seemed so clear when it was written is unclear in its application to an unforeseen circumstance. Language which seemed perfect when the legislative compromise was reached suddenly appears full of loopholes.

The board must decide what is right, what is fair. It not only must interpret the language, but often is given great latitude by the ordinances to grant or deny a project permit. All of the experience of the Board in handling code interpretations, zone variances and conditional use permits comes together in these often confusing, emotion charged hearings.

This interim, reactive, patchwork approach to planning again tends to remove predictability from the process. The lack of clarity in the ordinances allows them to be challenged, and the discretionary project permit approach provides little predictability for either the applicant or the neighborhood. Predictability is essential to the healthy operation of a rule of law.

A more comprehensive, pro-active. integrated approach to the statutory aspects of the land use process could significantly reduce the number of discretionary or interpretative issues that come before the Board. It would add a clarity and predictability that would restore a healthy respect for the rule of law, a respect so essential to our democratic system of government.

Although often frustrating, serving on the Board is one of the most challenging experiences available in the public sector. Clearly, a zoning code for a city of Los Angeles size and complexity is necessarily complex and detailed.

The Board tends to see the flaws rather than the perfections of the City’s ordinances and codes. It does not hear about ordinance language unless the language needs to be corrected. The Board is often the body designated to fix the flaws caused by haste, imprecision and narrowness of scope. That is a big challenge. In spite of the frustration, the Board does its best to hear all sides, to weigh all evidence and to render the best judgments capable of citizens untrained in the technical aspects of planning. By and large, the public acknowledges that it appreciates being given a “day in court” and that it appreciates the thoughtful debate among the Board members.

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