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John Mirisch

John Mirisch

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Saving Franklin Canyon: Zoning In on a Solution

Posted: 05/ 6/11 07:19 PM ET

In a recent editorial, the LA Times opposes potential legal proceedings to confirm a public easement against a property owner who wants to build a mega-development on the border of Franklin Canyon Park. Says the editorial:

A Beverly Hills councilman who opposes the development plans characterized the issue in terms of "the rights of the public to enjoy nature in their midst." But the public has no inherent right to enjoy property that it doesn't own. Activists should be gaining access to the land by raising the money to buy it, not by suing for free use.

As the councilman referred to in the editorial, I think it is important to clear up some misconceptions the Times editorial board seems to be laboring under.

The first misconception is that the conservationists are only interested in suing for free use rather than trying to purchase the property.

In fact, through the Santa Monica Mountains Conservancy, the general public has indeed for years been attempting to purchase the subject property, which until it was recently consolidated, had been under the control of several owners. Due to poor and steep access, the parcels in question were considered to have limited value, which was reflected in official property appraisals. As a public agency, the Conservancy is rightly limited by rules protecting taxpayer dollars and is not allowed to pay more than the appraised value of the property.

Enter developer Mohamed Hadid, who is not constrained by such rules, who was able to offer more money and who was able to piecemeal together over 90 acres of property abutting the park. Presumably Hadid had an economic incentive to outbid the Conservancy on the basis of the $91 to $176 million in net profits he projects if his project is built as he envisions. The problem is, Hadid's "vision" seems clearly inconsistent with both common sense as well as any reasonable zoning laws.

States the Times editorial:

Development plans were approved years ago, though the construction permit has since expired... But when he (developer Hadid) applies to the city of Los Angeles for a new permit, the city should base its requirements only on the usual concerns about new construction and not on the desire of the public to continue hiking Hastain Trail.

Just what might those "usual concerns" be? In an April 28, 2011 letter to LA's Department of Building and Safety (DBS), Los Angeles County Supervisor Zev Yaroslavsky writes that he supported LA's adoption of its new Baseline Hillside Ordinance "because it promised to apply a principle the County of Los Angeles adopted in the unincorporated portion of the Santa Monica Mountains: 'let the land dictate the type and intensity of its use.' The City's ordinance would accomplish these goals by, among other techniques, reducing grading and rationally limiting the size of homes so that they are compatible with the surrounding neighborhood and the topography of the site."

In the case of the Hadid development, the surrounding neighborhood is a national park, part of the Santa Monica Mountains Conservancy, and the topography includes acres of pristine ridgelines and valleys, much of which Hadid wants to level and fill.

Even though the Yaroslavsky letter was in reference to a different, but nearby, property, he hits the nail on the head, while the Times seems singularly and oddly clueless about what appropriate development concerns along a ridgeline might be. Hadid's expired permit referred to in the Times editorial, originally issued in 2004, allows for the construction of one single family residence with a maximum of 1208 square feet. This is hardly in line with the developer's grandiose plans, and it is clear that a classic developer bait-and-switch is in the works.

Just what does Hadid really have in mind? In a prospectus in which the developer attempts to syndicate the project, which he dubs "Royal Canyon," one can read comparisons of the project with Beverly Park, where estates are measured in the tens of thousands of square feet and a bathroom alone might be 1208 square feet. One can also read that the proposed development is "by right" without any discretionary approvals and does not require review under the California Environmental Quality Act (CEQA). Something would be very, very wrong with zoning laws if a project this massive and which required this degree of grading were "by right" and not subject to CEQA, but perhaps the developer was counting on political influence to grease the wheels. In the prospectus, namely, we can also read that the "Company has contacts within the city, ensuring quick approval process."

On the other hand, perhaps LA's own environmental protection rules were so weak that the developer knew how to game the system. Perhaps such a gaming of the system led LA to finally adopt the long-overdue Hillside ordinance. In any event, on April 29, 2011, a little more than a week before LA's Baseline Hillside Ordinance takes effect, the developer resubmitted his plans. What was once a 1208 square foot residence has now metastasized into a 22,188 square foot, 36 foot high colossus with a porch deck, balconies, pool deck, pool and spa -- and all of it over a basement (on a steep ridgeline, no less). On the same date, the developer applied for a permit to grade 40,000 cubic yards of earth and to build retaining walls to support the entire compound. "Bait" and "switch," but hopefully not "check" and "mate."

I happen to be a dual American/Swedish citizen who spent many years living in Sweden, where a love and ingrained appreciation of nature infuses society and informs decision-making. The Swedish attitude towards nature as a right, rather than a privilege is perhaps best embodied by allemansr├Ątten, the age-old practice, now law which guarantees public access to nature for everybody. While California is not Sweden, even in America, the public has a right to be protected from environmental impacts and to expect developers to follow zoning laws and codes. If ever there were a legitimate case for the environmental protections afforded by CEQA, which unfortunately sometimes is abused for anti-competitive purposes, the "Royal Canyon" development is it.

The Times editorial states that the developer has been cited for unpermitted grading. There has also been illegal construction activity, as confirmed in an LA DBS report from Feb. 16, 2011. Unfortunately, ignoring codes seems to be standard operating procedure for some developers. Unfortunately, the dual mottos of some developers seem to be "Just Do It" and "Permission is good; forgiveness is better." Because, hey, once you've illegally graded, you can't put a mountainside back again, can you? The public deserves better protections against these kinds of building violations than slaps on the wrist and forgiveness.

As Yaroslavsky writes, in LA County, "if you violate the zoning code, we will not process a new application on your property until you remedy the existing violations. The purpose is to hold violators of the law accountable. If the Hillside ordinance and other key efforts of the City are to have any meaningful impact, the City should similarly ensure that its laws are being enforced. Therefore, a property owner who has failed to comply with the law should not have his permits accepted for any purpose until the property is brought into compliance with all City laws." Yaroslavsky describes this as a "common sense rule." It's about time that the decision-makers start applying the principles of common sense when it comes to development standards (not to mention many other standards, for that matter). Bravo, Zev. Let's hope the LA decision-makers also have the common sense not to accept Hadid's new applications until the past grading violations have been completely remedied. Guess what? If you've moved a mountainside illegally once, then you sure as heck can put it back again.

Then, of course, there's the separate but related issue of whether the public may have an established legal right to continue using the trail. The Times writes that past property owners' inaction while hikers enjoyed the trail does not entitle hikers to continue using the trail if the new owner decides to put up a fence. But far from being a case of "no good deed goes unpunished," as the Times writes, an implied dedication of public use, going back some 40 years -- just like a public easement through private property to access coastal areas -- may very well be an established public right. There is simply no reason whatsoever why the public should abdicate that right just because the new owner does not want to be encumbered by a legal public easement. Let us remember that another principle of unfettered property rights, which the Times seems to support, is: "caveat emptor." When the current developer purchased the various properties, he should have known about any potential easements or restrictions on his ability to build.

At the very least, the current owner should be expected to strictly follow current zoning laws, including LA's new Hillside ordinance, which he clearly is attempting to skirt with his eleventh hour application, and there should be no accommodations through political influence to suit his delusions of grandeur. Good zoning laws exist to protect the general public, the neighbors, and, presumably, the environment. With property rights also come responsibilities.

Undoubtedly, as the Times suggests, the best solution would be for the developer to come to terms with the Conservancy for a purchase of the property, which could then be enjoyed by the public in perpetuity. However, any price should be based on a reasonable appraisal, taking into account the limitations of the Baseline Hillside Ordinance, rather than the developer's attempt to bait-and-switch zoning rules.

We may not be Sweden, which has a much longer history of property rights, but we need to rethink our relationship with nature and try to achieve a better balance between property rights and our rights as citizens to enjoy our natural resources. While protecting property rights, we also need to do a better job of preserving the Franklin Canyons around us. Any paradigm shift should largely be internal, but we also need laws and zoning codes to reflect a more organic way of looking at our relationship with nature; just as there are regulations protecting the coastlines, so should there be ordinances protecting ridgelines against overdevelopment.

By the way, in case you're wondering, I'm a Republican. Just like Teddy Roosevelt.