Loeb & Loeb Land Use Lawyer Linda Bernhardt Opines on California City Planning Processes

Given that you have moved from a long public service background in land use and planning to representing private sector real estate clients, how would you critique city planning process in general and planning in the city of L.A. in particular?

The entitlement process in the city of L.A. has shockingly slowed to a snail's pace, as it relates to the processing of applications and final approvals up through the City Council. Based on the volume of projects and applications the city had two or three years ago, it was busier, yet they're slower now than they were then. It's not clear why. I get various answers: they're overworked; they have less staff, especially in the Environmental Review Section. I don't know what is true or not, but it's certainly not like when we had Bob Janovici as the Zoning Administrator. A lot of great, old-timer zoning administrators have left or retired, so there is a huge vacuum. Institutional memory is nearly gone.

Up and down the state, people think about the Permit Streamlining Act and actually adhere to it. It means that you put an application in, and if all the pieces are there, you are deemed "complete" within 30 days. That does not happen in the city or county of L.A. It happens in San Francisco; it happens in Hayward; it happens in West Hollywood. The city and the county are huge. They have a lot of issues to deal with and they need to prioritize them. But for processing of applications, it's just very different than it was two or three or four years ago.

You worked for former Councilmember Cindy Miscikowski, and you served on the City Council in San Diego. You have experience with public planning processes. Is real city planning possible?

I believe there is "real planning." In planning, you have your general plan, your community plans, your specific plans, your overlay zones, etc. If people understand what is allowed under these planning tools and of a typical planning department or city, those tools (as long as they're kept up to date, and that's part of the problem), you really do have planning and projecting out into the future. In the absence of updated tools, precedent-setting decisions get made and this undermines the city's ability to do "real planning."

When you say, "real planning," it's not like the plans aren't in place and there's no vision for the future.

The difficulty is that there has been a shortfall of public facilities and services to accommodate the level of growth coming into certain areas or regions of the state. Twenty years ago, they used to have community plans linked with facility benefit assessment programs that would say, "In this particular area, you can't pull x amount of building permits until such-and-such improvements are in." It was a very strong practice when I was in San Diego, working to have the connections to the facilities being in place-roads, sewer capacity, and mass transit-before developing certain areas.

If you were the chief adviser to L.A.'s City Planning Director, what would you recommend to improve that department?

Probably to look internally to the structure of her sections within her department to figure out how to staff them better. I would recommend that she take a very serious look at increasing the application fees for certain processes of approval for entitlements through the city of L.A. so she can get the staff needed to do the job.

She is tremendous as a visionary and taking a long-range view. She is wonderful at big public policy issues. But her experience hasn't really been in the project review and approval process for entitlements. I'm not saying it's any fault of hers, but I would recommend that she pay a little bit more attention to those functions-the deputy advisory agency for subdivision maps, the zoning administrators, for other entitlements such as conditional use permits, variances, and so forth. Those areas need to be better staffed.

Even though it hasn't been slow for our firm and many of the larger law firms that practice land use, the number of applications being submitted to the city are lower than they have been in the last couple of years, yet the planning staffing doesn't seem to be able to accommodate the level that's coming in now.

In Los Angeles, as compared to San Diego, Planning departments typically live in their own silos within the city government. What is the challenge in having projects move across the silos during approval in city planning departments in California?

They all can remain in their individual silos, but there has to be some sort of inter-relationship and constant dialogue and communication. When I think about the city of L.A., one of the departments that has done incredibly well with process is the Case Management Program out of the Department of Building and Safety. When you bring in a potential project for a client, even if it's just conceptual in nature, you sit down and have a meeting, and there might be ten different departments sitting around that table. Planning agencies and entitlement managers should really use that model. At this point in time, I don't believe the city of San Diego is using such a model, but it would behoove them to consider it, as well.

I've never opposed the silo concept. What I'm most concerned about, and what has a tremendous impact on my clients, is the fact that, sometimes, there is not the level of communication necessary early on in a project between departments.

In the past, L.A. planning has been thought of as project-by-project planning, with lots of discretion and buy-right actions being taken in the absence of contextual and visionary planning. Is that an unfair critique?

Yes, it is. If it's a buy-right, somebody, ten or 15 years ago, thought about it as part of their community plan-what the zones would be, and what the density in that particular area would be. It's not like it wasn't planned. I know it looks like applicants are receiving new entitlements that represent changes that lead the city away from the baseline document of a community plan, but that isn't necessarily true. Most of the projects that I see or work on, even if they're doing zone changes, are going in the direction of the revisions that are being made of the community plans. I don't think anybody's getting any kind of special favors to be able to proceed on a general plan amendment and zone change. I think the city has its fair share, but it's not to the point where it's excessive.

So, the communities on Sunset Boulevard, west of the 405 should have no complaints about the mobility impacts of densification and development?

That brings us back to public facilities and infrastructure issues and proper planning for transportation and public transit. The biggest issue I hear from my own friends and neighbors isn't so much the building itself; it's that the street system can't absorb anymore.

Some cities, including San Diego many years ago, put a building moratorium in place for a year or so to try to work it out. I don't see that happening in the city of L.A. I take it more from a policy perspective and say that pressure needs to be put on at the local, state, and federal levels to get the funding necessary to put things in place that should have been planned and put in place 20 years ago. We're playing catch-up.

The L.A. City Council just passed the "Green Building Ordinance" into law on Earth Day. There have been a number of other ordinances passed, some would say in piecemeal form, in recent years. What is the nexus between the regulations being passed and the predictability you need to have for your clients to move their projects forward?

Since I went into the private sector, I've been working with clients to explain to them the LEED certification program and what that does to the marketability in the future for their projects. Most of the clients that we have, particularly in localities that have either ordinances already on the books or that were just adopted, we follow those principles or rules and always try, at minimum, to get to what would be considered a Silver level and sometimes Gold or even Platinum. We have large corporations doing office towers that are interested in going as far as LEED Platinum. With every client we have, we work hard to integrate into their project the benefits of green building. We have clients that are listening and interested.

How have the credit crunch and real estate market woes affected your practice at Loeb & Loeb?

The good news is that it hasn't. We have a diverse client base and haven't been top-heavy with large residential tracts or master planned communities. We're still doing this business, but it's from a different perspective-it's due diligence and entitlements for financial institutions that repossess real property as part of a bankruptcy. In terms of due diligence and finalizing entitlements, we also have clients that are large equity firms picking up those properties for investment purposes.

On the other side, the existing clients that are doing projects now, or want to move forward, all have their own funding in place either through prior arrangements or they have the resources, because they're large enough, to fund the development. Also, these clients are not typically doing large residential subdivisions.

In recent months, TPR has carried dialogues about SB 1818, density bonuses, and affordable housing. What's your take on that debate?

I'm a very strong affordable housing advocate, and have been since my young years in San Diego. I used to chair the housing commission there. Back in a very conservative city in San Diego in the late ‘80s, we had a housing trust fund and inclusionary housing, and we had a mandate for affordable housing and systems were in place. When I moved to L.A., I was astounded that none of those things were in place.

I chuckle when I see the debate now, because the truth of the matter is, the county had no problem implementing SB 1818. In fact, if I recall, Supervisor Yaroslavsky and others made a unanimous vote to implement that into their code. Internally, the Planning Department tinkered quite a bit with the legislation when it came to the city of L.A., trying to be proactive and create options in implementing the ordinance for developers and builders. That's probably where they got caught up in going beyond what the average person thinks the state law should have allowed.

In either instance-in the city or the county of L.A.-there are very few projects moving forward that are asking for the density bonus allowed under SB 1818. In fact, I recently talked with Jane Blumenfeld, and she gave me a number for the city that was very low. It's the same with the county. The bigger picture is to focus on all the possibilities for affordable housing, and to step back and look at what the city of L.A. is doing or not doing on that issue. Implementing SB 1818 is only one very small piece of that picture.

Looking at the jurisdictions in California, which city is a good role model for land use planning and the process of development?

Some cities, like Santa Monica, do a really good job of planning and trying to do what's best for their city. The process can sometimes be a little slow; they may be a little rigid, but all in all, I think that they're attempting to do good planning. A tiny city like West Hollywood is also attempting to do good planning. In their case, the process is a little slower, but it certainly isn't as slow as the city of L.A.

A community that we worked in most recently, the city of Hayward, which not only has a good planning program but an incredible process for bringing applications to fruition within the timeframe that meets the state guidelines, which is amazing. What happens many times is, the smaller cities have overall good planning combined with good process. Some have good planning and just don't have the staffing to handle the process.