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City's Density Bonus Plan Taking More Heat

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A reader forwaded us a letter sent out by City Planning Commission chairperson Jane Usher on the saga that is the City's Density Bonus ordinance [PDF]. Wonks take note! If you're unfamiliar with Ms. Usher, you're really missing a lot. She is what you may call: a brutal force of nature. She yells, she skewers developers, she gets all up into people's faces--and she's unrepentant about it. It's fun to watch from the peanut gallery. Now she's taking aim at the density bonus ordinance, which appears to exempt certain projects (those only asking for a density bonus and reduced parking) from environmental review. As the emailer notes, Ms. Usher's letter appears to be inviting someone to sue the city over the density bonus implementation.
The following is a letter from Jane Usher, president of the city planning commission, regarding the fact the city's density bonus ordinance would exempt many projects from environmental review.

Dear Friends and Residents --

At its February 28, 2008 regular public meeting, the City Planning Commission received an update from planning staff concerning the City's density bonus (SB 1818) enabling legislation. Unfortunately, this update was delivered to us at the very moment that the City Council's enabling ordinance became final.

There is no question; the City needs more housing for the middle class and the poor. But we must achieve this lawfully and transparently. This brings me to the February 28 update, via which we learned that the City Council had added a provision to the City's enabling ordinance that defines applications that seek only a density bonus up to 35% and reduced parking (but no other incentives) as "ministerial." The City Attorney confirmed that state CEQA Guidelines exempt "ministerial" projects from CEQA review. The City Attorney also confirmed that SB 1818 does not itself use the phrase "ministerial" and is silent on how CEQA applies to density bonus applications.

I expressed my opposition to our apparent short circuiting of CEQA at the CPC meeting. The Commission asked to bring this matter back for further hearing, though we are well aware that we have no continuing jurisdiction. In the week since then, I conducted modest online research. I learned that the Director of Planning had issued a Categorical Exemption in January 2008 to support the City's SB 1818 enabling ordinance. This Categorical Exemption states that "projects filed in accordance with this ordinance will be subject to CEQA and analyzed individually regarding any potential environmental [impact] (sic)." This claim is at odds with the "ministerial" procedure authorized by the enabling ordinance.

These circumstances present at least two legal issues which are ripe for immediate litigation due to their short statutes of limitation: 1) whether the Categorical Exemption issued in support of the City's enabling ordinance is fatally flawed in light of the actual contents of the ordinance; and 2) whether the "ministerial" definition contained in the ordinance itself violates CEQA. I invite your comments and your action.

Jane Ellison Usher
President, Los Angeles City Planning Commission