In a world of madness, the sane strategy is to go insane — YIMBY Law (2023)

Most of the time, the stalled housing projects we encounter at YIMBY Law are pretty straightforward. The local law allows the housing and the state law requires the city to approve it, the city knows this, or, accepts it once we point it out, but the immediate neighbors refuse to believe it, or believe the law is unjust and ask the City Council to fight it. Through a combination of grassroots organizing and threatening letters, everyone gets on the same page and the housing is approved.

Sometimes, however, we find ourselves beyond the looking glass, sinking into a well of madness, our minds bending into shapes known only to an evil, otherworldly geometry. And this is where we found ourselves contemplating Los Angeles’ reaction to Akhilesh Jha’s proposal to build 7 stories, 60 apartments, 60 parking spaces and one floor of retail at 5353 Del Moreno Drive in Los Angeles, California.

The Los Angeles General Plan land use designation for 5353 Del Moreno Drive is “Limited Commercial”. Among other things, Limited Commercial allows apartment buildings with a density of up to 1 unit per 400 square feet of the lot. So, on AJ’s, 20,000 sq ft lot, the general plan allows an apartment building of up to 50 apartments. (20,000/400= 50) In addition, the state density bonus allows another 17 units, for a total of up to 67 apartments.

The zoning code, however, only permits a single family house, and, incidentally, a chinchilla farm.

AJ submitted an application to the LA planning department to build a 60 unit apartment building, as described above. The LA Planning Department replied saying that the proposed density of 1 unit per 400 sq. ft. at 5353 Del Moreno Drive is not consistent with the zoning (see Attachment 1.1), so if he wanted to move forward with his project, he would need a zone change.

No problem, AJ replied, the Housing Accountability Act, Gov. Code, § 65589.5(f)(4) states that “a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan.” (emphasis added) My project is clearly “consistent with the … general plan standards,” so I do not need a rezoning.

Well, said the LA Planning Department, that sentence only applies if the “... zoning for the project site is inconsistent with the general plan,” and the zoning at 5353 Del Marino (single family) is consistent with the General Plan designation (limited commercial).

Wonderful, said AJ, to hear that the zoning is consistent with the General Plan. Given that my project is consistent with the General Plan, and the zoning is consistent with the General Plan, it sounds like my project is consistent with the zoning, and we can proceed.

No, not at all, said the LA Planning Department. Your project is not consistent with the zoning, although it is consistent with the General Plan, and the Zoning is consistent with the General Plan, but the Zoning is not consistent with your project.

What?

AJ wisely called YIMBY Law.

LA Planning’s argument is basically that because the zoning allows a subset of what is allowed in the general plan, then the general plan and zoning are not inconsistent. It’s a maddening idea of “consistency” but it explains this apparent contradiction.

LA Planning should have kept reading paragraph (f)(4) because the sentence after the one AJ initially cited still supports AJ’s project. It says that where the zoning is consistent with the General Plan, “the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.” (emphasis added)

Cities therefore have no way out. If they think that the zoning for a site is consistent with their General Plan, they can only enforce the aspects of the zoning that facilitate the density allowed on the site by the General Plan. And if the city claims the zoning is inconsistent, then a project sponsor can basically ignore the zoning, and only look to the standards and criteria in the General Plan.

We will be helping AJ build his apartment building, and maybe also a chinchilla farm. If you see any other examples of cities trying to avoid their duties under state law, let us know!

Attachment 1: Communications Between Planning Department Staff and Applicant

On Fri, Aug 7, 2020, 4:04 PM Justin Bilow <justin.bilow@lacity.org> wrote:

Hi AJ,

This email follows up on and summarizes information discussed during our call from Friday July 10, 2019. Below is a summary of zoning information related to your proposed project at 5353 Del Moreno Drive (“Project”); information related to your questions about the Project’s SB330 Preliminary Application for vesting under Government Code Section 65941.1 (“Preliminary Application”); and contact information to assist you with pursing your later application for a development project.

1.The Preliminary Application Is Incomplete

The Project’s Preliminary Application for vesting under Government Code Section 65941.1 is not considered submitted because the Preliminary Application contains inaccurate information regarding the use of Density Bonus, and therefore does not contain all of the information required. The Preliminary Application states that the Project will seek Density Bonus incentives and bonus units for 60 residential units. However, the site’s RA-1 zoning does not support a Density Bonus development because the existing zoning authorizes a single one-family dwelling. Additional density for the project may be sought through a Zone Change (LAMC 12.32 F) or Vesting Zone Change (LAMC Section 12.32 Q).

The Department seeks accurate and complete Preliminary Application information from the applicant at this early stage in order to, among other things: (1) give project applicants an opportunity to secure the earliest possible Preliminary Application submittal date through an early opportunity to correct and accurately submit all of the information required; (2) facilitate a smooth and expeditious development project application process because incorrect or incomplete information can cause unexpected delays or loss of vesting, (3) facilitate an applicant’s ability to maintain vesting rights during the next short development project application timeline — i.e., the 90-day period under Government Code Section 65941.1(d)(2) to submit information needed for the subsequent complete development project application; (4) provide an accurate basis upon which the City is required to evaluate any potential project revisions under Government Code Section 65941.1(c); and (5) avoid delays by facilitating an early accurate understanding about what standards, rules, and entitlement procedures apply to the project based on the information required by Government Code Section 65941.1.

Your requested findings under California Government Code Section 65589.5(j)(1) are not applicable to the Preliminary Application, and are therefore not required to determine that the Preliminary Application is incomplete. The findings at Government Code Section 65589.5(j)(1) apply to the later development project application which is supposed to be submitted to the Department of City Planning within 180 calendar days after you submit a Preliminary Application with all of the information required. See Government Code Section 65914.1(d). The later development project application would request specific development approvals through procedures, hearings, and findings specified by the Los Angeles Municipal Code.

2.The Site Requires A Zone Change For The Proposed Project

The site is zoned RA-1, but the Project is proposed at C1.5-1 development standards with 60 residential units. As a consequence, the proposed Project requires the site to seek a Zone Change or Vesting Zone Change.

The site requires a zone change because the General Plan’s applicable Community Plan, here the Canoga Park - Winnetka - Woodland Hills - West Hills Community Plan (“Community Plan”), states that the site’s zone is consistent with the "Limited Commercial" land use designation. Consistency is supported by: a) the Community Plan map, b) text in the “Plan Consistency" section on page 20 of the Community Plan, and c) Footnote no. 9 on the Community Plan Land Use Map relating to "Corresponding Zones." Footnote 9 states the following in pertinent part:

“Each Plan category permits all indicated corresponding zones as well as those zones referenced in the Los Angeles Municipal Code (LAMC) as permitted by such zones unless further restricted by adopted Specific Plans, specific conditions and/or limitations of project approval, plan footnotes or other Plan map or text notations.”

Footnote 9 explains that each land use category permits the less intensive zones referenced by the LAMC, in addition to the more intensive corresponding zones listed on the face of the Community Plan land use map. The site’s zone-plan consistency is further explained by the City's hierarchy of less to more intensive zones found in LAMC Section 12.04-A, and a review of LAMC Sections 12.07 (RA zone) through 12.13 (C1.5 zone)....

Best Regards,

On Tue, Aug 11, 2020 at 5:09 PM Sarah Molina-Pearson <sarah.molina-pearson@lacity.org> wrote:

Hi Akhilesh,

Yes, the zone and land use designation are consistent. As I mentioned to you yesterday, I would like to continue to explore options for your project to move forward. Please feel free to reach out to me in the next week or two. If I receive any new information before then, I will make sure to let you know.

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