PLUM Committee Delays Vote on New Land Use Appeal Fees

On Tuesday, August 15, the City Council’s Planning and Land Use Management Committee held a public hearing on the issue of increasing fees for “non-applicant” appeals in land use cases. But the committee decided, in the end, to postpone a vote on the issue for two weeks, to give both the committee and community a chance to review five alternative fee schedules proposed by the city Planning Department and City Administrative Office just a day earlier.

At Tuesday’s meeting, the Planning Department and CAO jointly presented five new options for increasing appeal fees for “non-applicants,” who are often individual neighbors or small groups such as neighborhood associations.  Traditionally, the city has subsidized fees for these appellants, charging only an $89 filing fee, while developer project “applicants” (who will profit directly from land use projects) are charged much higher fees that fully cover the city’s costs to process and hear the appeals.

In recent years, however, the number of non-applicant (resident and community) appeals has nearly doubled – from just over 150 in fiscal year 2013-2014 to almost 300 in fiscal year 2016-2017 – and the city now finds itself subsidizing nearly $4 million annually for the cost of those appeals.  As a result, and as part of a periodic review of city fees, the Planning Department and CAO have recommended increasing non-applicant appeal fees to a level that would fully cover their costs…or, in blunter terms, from $89 per appeal to as much as $13,000 per appeal.

Discussion of the issue at Tuesday’s meeting was vigorous.

On one hand, city representatives argued that the $4 million subsidy comes directly from the Planning Department’s operating budget, saying that if it continues, as many as 30 staff positions in the Department will have to remain unfilled, and the department will not be able to meet its long-range planning goals (a serious problem as the city struggles to update its 45-year-old city plans in the midst of both a housing crisis and development boom).

On the other hand, however, individual residents and neighborhood activists argued that the current subsidies are necessary to guarantee the right of individuals to a voice in the development process in their neighborhoods. And eliminating that voice, they said, would have a variety of serious consequences for the city.

During committee member comments on the proposed fee increases, 12th District City Council Member Mitch Englander was the most vocal, siding largely with Planning and the CAO. Englander contended that a large number of non-applicant appeals actually come from non-neighbors, and that neighbors and neighborhood groups also have ample opportunity to weigh in on land use issues via pre-determination hearings at Neighborhood Councils and other local bodies.  Englander also said, however, that while it is definitely necessary for the city to get to “full cost recovery” in land use appeals, it should also attempt to preserve the ability for community voices to participate in the process, especially in cases of compliance with historic designations.

Of the five possible fee schemes presented by the Planning Department and CAO on Tuesday, Englander said he was particularly intrigued by the fifth option, which allows “hardship” exemptions or discounts for low-income appellants and/or those who live within a 500-foot radius of proposed projects.  Englander called this option “the most innovative and creative” of the five proposed, and said that it could help to protect the appeal process for those who have “true standing.”

Englander noted, however, that the committee had not yet had much time to digest the full set of fee options, which were presented to members just a day earlier.  So he suggested that the committee remove the appeal fee component from the larger set of fees it was reviewing, for further study.

When the hearing was opened for public comments, however, it was clear that all of the residents and neighborhood activists who took time to come to the hearing  were very much opposed to ending the city subsidies for non-applicant appeal fees.  All of the speakers objected to the proposed fee increases, and many also opposed even modifications like those that intrigued Englander.

The first, and major, public argument was that increasing fees above the current highly-subsidized level will effectively stifle individual appeals, and will further advantage deep-pocketed developers, who not only can afford higher appeal fees, but benefit (and are subsidized) in other ways, such as the ability to take tax deductions for the fees they pay – which individual appellants cannot do.

Marian Dodge, a member of the Los Feliz Improvement Association, said raising non-applicant appeal fees to full cost recovery level would be a “Draconian solution.”  She – and several other commenters – said the city would be much better off  if – instead of raising fees to deal with the huge increase in land use appeals – it dealt instead with the cause of the growth in appeals:  the city’s increasing tendency to approve projects that request exceptions to local zoning.  Dodge (and several others) said residents have a “civic duty” to appeal such projects to help enforce local zoning and, “if the city followed its own rules, there would be very few, if any, appeals” to subsidize.

Other speakers, including Sylvie Shain, who ran for a City Council seat last year after being involved in an appeal to save her Hollywood apartment building from re-development, noted that community appeals can actually be valuable to the city, by allowing a variety of voices into the planning process and, thus, creating “better” projects in the end.

Carol Citrone, from the Melrose Hill neighborhood, agreed, noting that the city “often makes mistakes” that can be “apparent only to immediate neighbors” when approving new land use projects. So it’s “our right to oppose problem projects,” she said.  The proposed fee increases, Cintrone said, would take away that right.

Several other speakers agreed, saying land use appeals are both a public right and duty (especially given that there are no other official channels through which the public can register dissent for land use decisions). Speakers further claimed that it is government’s duty to subsidize that process to maintain public access to it.

Damian Goodmon, of the Crenshaw Subway Coalition, equated unaffordable fees for individual appellants to a “poll tax,” saying it would effectively prevent low income residents from being heard in the development process.  He suggested that the city instead pass on the costs of all appeals to developers who request exceptions to existing zoning, rather than charging residents who protest the exceptions.

Doug Haines, an activist who has been fighting the large Target-based development in Hollywood, also took exception to Englander’s idea that only the residents closest to such developments enjoy an increased ability to file appeals.  The impacts of large projects, Haines said, are felt far beyond a 500-foot radius, so people beyond 500 feet should not be locked out of the appeal process by astronomical fees.

Another point raised by public speakers at Tuesday’s hearing was the manner in which the city has (or hasn’t) sought public input on this issue before rushing toward a decision.  Several speakers suggested the whole discussion at both this week’s and last week’s PLUM Committee meetings were violations of the Brown Act, which requires explicit descriptions of items to be discussed on the agenda for every open meeting.  This issue, they noted, was only very briefly described on both PLUM Committee meeting agendas as “Reports from the Department of City Planning and City Administrative Officer relative to a comprehensive fee study and recommendations for cost recovery for project planning services.” The agendas made no mention of the specific fees to be increased, or the degree of the proposed increases. A more detailed public notice, contended the speakers, would probably have attracted wider interest, input and attendance from the public.

The issue of public participation was also raised by PLUM committee chair Jose Huizar, who asked at the initial discussion of the fee increases last week whether the Planning Department had done any community outreach (it turned out they had brought the proposal to only two local business groups)…and asked at this week’s meeting why the proposal hadn’t gone through the more usual channel of a public Planning Commission hearing before coming to the PLUM Committee.  A representative of the City Attorney’s office replied that the city charter does not require changes in fees of this type to go through the usual Planning Commission hearings.

Finally, at least one speaker noted that if the appeal process is effectively closed to individuals by the imposition of burdensome fees, the only other option for dissatisfied residents will be lawsuits, which could wind up costing the city even more than the current appeal fee subsidies.  “If this is an attempt to get us to stop appealing,” said speaker Susan Hunter, “We’re just going to sue (instead).

In the end, PLUM Committee Chair Huizar agreed with Englander and moved that fee increases for other Planning functions (which did not face opposition) be approved, while the issue of non-applicant appeal fees be separated from the package and re-agendized for further discussion and a possible vote at the August 29 PLUM Committee meeting.