April 9, 2018 - From the April, 2018 issue

Carlyle Hall Opines on LA City’s Forfeiture of Local Control Over ADUs

To provide a counter perspective on the State Legislative efforts to streamline ADU regulations, TPR interviewed noted land-use attorney Carlyle W. Hall to ascertain Los Angeles’ failure over years to plan for and approve ADUs. Hall, founder of Los Angeles Neighbors in Action, previously led the citizen group that successfully brought the suit to compel the city to follow its zoning standards for ADUs in single family residential areas. Now, Hall advocates for more community plans that can provide structure and build trust in local government as the way to plan for ADUs. Hall also comments on the unremitting impacts of Prop 13 on local government services and the next generation of homeowners.


Carlyle Hall

"It’s frankly shocking that the planning establishment of a city like Los Angeles, which prides itself on being forward-looking and on top of things, has for more than a year done nothing to take back local control over ADU buildout." - Carlyle Hall

In a 2016 op-ed in The Planning Report, you wrote: “The city’s planning establishment appears willing to let LA’s neighborhoods suffer the negative consequences of unwanted (and unstoppable) second-unit development without first making any meaningful effort to study alternatives and to formulate public policies that take into account differing points of view.” Has anything changed since 2016, in your opinion?

Carlyle Hall: The general scenario has not changed. But the activity level has changed, because of some recent developments in state and city law.

Previously, the city had, for all practical purposes, refused to follow its own ordinance on accessory dwelling units (ADUs) for about 10 years. The Planning Department and LADBS were approving and issuing many permits that were unlawful under the city’s ordinance, and the court ordered them to stop that. That put the City Council in a position where it had to act: It had to either legalize the activity that had been illegal by changing the ordinance regulating ADUs, or it had to retain the ordinance and start following it.

That court ruling was at the beginning of 2016.  In response, the Planning Commission and the City Council launched a series of hearings regarding the Planning Departments ADU proposal, culminating in the Council’s September 2016 action.  It decided to keep the City’s existing local ordinance with the older, tighter, stricter standards that allowed fewer ADUs, while making sure that those ADUs are compatible with their surrounding neighborhoods.

That lasted only for about four months. Then a new state law kicked in, which told every city in the state that they had to make certain relatively modest changes in their local ordinance if they wanted to retain local control over accessory dwelling units. Los Angeles, however, took the default position of doing nothing, causing the state law—which exercises much looser control over ADU buildout—to come into play. That kicked in on January 1, 2017.  Meanwhile, the Planning Department’s proposed revised local ADU controls have languished in the PLUM Committee since last spring -- approximately a year.

In the same TPR piece, you criticized the city’s non-enforcement of planning rules, and shared your fears about a “one-size-fits-all” solution from the state legislature to California’s housing challenges. Today, do your concerns persist?

By doing nothing in response to the state law, Los Angeles has been essentially choosing to forfeit local control over ADU policies and practices—including the ability to have customized zoning and building standards. Consequently, our city has been following the default one-size-fits-all standard from the state.

It’s frankly shocking that the planning establishment of a city like Los Angeles, which prides itself on being forward-looking and on top of things, has for more than a year done nothing to take back local control over ADU buildout.

This is symptomatic of a general inability of the city to use its planning and zoning powers in effective ways. Time after time, whether it’s ADUs or short-term rentals, the building and development community says what it wants to do, and the city’s planning establishment rolls over and plays dead.

The mayor, the Planning Department, and Planning Commission talk a big game, but they have been very ineffective in dealing with these problems. They talk about doing something about our terrible housing crisis, but what are they doing about it? They’re not doing enough; actually, they’re doing very little. Rather than using the powers they have, they are repeatedly taking a weak-kneed approach and trying to shift the blame onto others.

As a former “liberal lion” of the legal profession in Los Angeles, how do you believe a city or region ought to address the challenges of housing unaffordability and lack of supply?

Planning principles and zoning laws have been very well laid out by now. We need community plans that provide control, and bring the building industry and the public sector together to provide a more sensible buildout than we get when the private sector does its own thing.

The mayor, the Planning Department and the Planning Commission pay a lot of lip service to making the city’s 35 community plans into effective documents. Effective use of our community plans, and rallying both the public and the building community around those plans, is the first step.  But they need to do more.

If there are not enough sites in those plans for affordable housing or for homeless housing, then the second key step is to go through the process to amend the plans and build the framework for affordable housing and homeless facilities. Instead, what we get is rhetoric about how zoning laws and NIMBY’s are precluding us from building affordable housing and homeless facilities.

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Let’s see some leadership. Let’s see the Planning Department work with communities, not to disrupt them, but to get them on board to find suitable locations for new housing. The last thing we need is something like Senator Wiener’s SB 827, which would take away even more local power, when local governments just aren’t doing a very good job.

Rather than directly increase the capacity of his own Planning Department, the mayor has brought the architecture critic from the Times in as his point person on urban design. What do you expect to see from the city, as the state Legislature considers bills on the table that would override local control of urban planning?

I hope the city does not forfeit control over its local jurisdiction and the buildout of their city to SB 827, which takes a truly draconian one-size-fits-all approach.

In addition to keeping control, the city should make that control more effective by reaching out to citizen groups and homeowner associations—the people traditionally blamed by builders and by affordable housing advocates for the housing crisis—to work together on solutions to this problem. There’s very little happening at the city level in the way of active community planning and getting all the different interest groups together.

Our housing problem is very difficult. You can’t just blame it all on homeowner associations and NIMBYism. That’s such an easy and thoughtless target. The problem is one of economics, urbanization, and many other issues. It won’t get solved by rhetoric.

The City’s new urban design czar will be a welcome addition to the planning and building process.  He’s a respected voice who can lean on the current players, hopefully moving them in the right direction.

Lastly, in 1991 you brought a constitutional challenge in the U.S. Supreme Court to California’s Prop 13 for its inequitable impacts on new home buyers. The court refused to “upset the will of the people of California,” but did call the state’s property tax system “distasteful and unwise.” It’s also been said that Prop 13 makes new housing a money-loser for cities, which must fund their local services with reduced property taxes. Today, how significantly does Prop 13—presently considered an untouchable political third rail in California—still contribute to the state’s housing crisis?

Prop 13 is a major part of many inequities that we face. It creates problems on many levels.

For one, it puts the bulk of the responsibility of paying for infrastructure and public services on younger people—who are buying houses in markets that are highly appreciated. When they have to pay disproportionately high taxes on top of that, it becomes very difficult for them to purchase homes.

On the flip side, Prop 13 encourages people to remain in the same home long after they would otherwise probably move, because they don’t want to lose their artificially low tax rate.

It also creates artificial caps on how cities can raise money, by setting a two-thirds supermajority requirement for all kinds of taxes and fees. The principle of majority rule has been the byword for democracy much longer than America has been in existence, and yet the supermajority requirements dictated by Prop 13 make it very difficult to tackle the serious problems that local government faces—affordable housing, homelessness, infrastructure buildout, and more.

How will we end this unfairness? There is a campaign to get a measure on the November ballot that would split the roll, but that’s just a part of the problem. However, in the next few years, I expect that there will be a push for general tax reform at the state level, and that Prop 13 reform will become part of that larger package.

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© 2018 The Planning Report | David Abel, Publisher, ABL, Inc.