SUSAN CLOKE
Columnist, Santa Monica Mirror
November 17, 2011
Qualified applicants need not apply is the take home message for many Santa Monicans who follow City Hall actions. In the last few months the City has lost Hank Koening and Gwynne Pugh, two Santa Monica architects who served on the Planning Commission; Architectural Review Board Chair and architect Michael Folonis; Landscape Architect and Recreation and Parks Commissioner Dryden Helgoe; and Arts Commissioners Jan Williamson of 18th Street Arts Center and Asuka Hisa of the Santa Monica Museum of Art.
This unhappy rash of resignations began this summer with Gwynne Pugh responsibly seeking City Attorney advice regarding a Request for Proposals for an Urban Design project and whether or not he could apply to be considered. Although he appropriately sought advice he anticipated being told that he could apply and that if he should be awarded the contract he would be required to recuse himself from voting and completely distance himself from participating in any City or Commission discussion of the matter. This is the requirement under the Political Reform Act and has been the typical practice of the City.
However there is another State Law, specific to contracts, State Government Code Section 1090. (Sec. 1090) City Attorney Marsha Moutrie describes the law as “harsh, narrow and deep.” It prohibits Board or Commission Members from participating in any City contract. If there is a violation, the action of the Body becomes nullified and the entire contract becomes void. Further, it is a felony and could result in incarceration.
The City Council, on June 21, 2011, heard the staff report regarding Sec. 1090, listened to public comment and, concerned by the possibility of serious consequences for the City and all parties to any contract under the jurisdiction of Section 1090, directed Staff to prepare prohibition guidelines for the City and to ensure that all Board and Commission Members and applicants were notified. In Mayor Richard Bloom’s words, “I don’t want this to be a trap for the unwary.”
As this point, you may, understandably, be asking, “What changed? Is this a new law?” No, the law is not new. What has changed is that the City of Santa Monica had entered into only a handful of Development Agreements (DA) in the past and a DA is a contract. Sec. 1090 is specific to contracts.
Previously, development projects, including major projects, would be heard in a public review process under one of the many mechanisms in the Planning and Zoning Code such as a Conditional Use Permit or a Variance Application, a Site Plan Application, or a Specific Plan. You get the idea – there are many tools in the Planning approval toolbox. None of these tools is a contract. Now there are 14 major projects in the DA queue in Santa Monica and each DA is a separate contract.
The Civic Center Housing Village, the Miramar Hotel, the new downtown Cineplex, Bergamot Transit Village, to name just a few, are all in the DA queue. And all are major projects that cannot help but have a considerable impact on the scale and character of Santa Monica.
The result of Sec. 1090 is that architects and landscape architects, commissioners who bring professional training and expertise to the table, are allowed to serve on Boards and Commissions when the standard planning tools are used. When a DA is being considered the conflicts laws regarding contracts prevail and the architect’s knowledge and perspective would no longer be heard on the Boards and Commissions.
The exception to this would be to find an experienced, professional architect or landscape architect who wanted to volunteer to serve on a Board or Commission and was not interested now, and who would agree not to be interested for the term of his or her appointment, in the biggest and most interesting architecture jobs in the City.
Don’t get me wrong here. We need many different perspectives on our Boards and Commissions and the broadest representation of the City possible. We need voices of neighbors and community leaders and more. But we all lose when professional voices are not at the table.
Additionally, there is an influential timing element. As just about everyone in Santa Monica knows, the City has recently completed an extensive public process of writing a new Land Use and Circulation Element, called the LUCE. The LUCE has been approved and now the Zoning Code must be conformed to the LUCE, a difficult and demanding task. Planning Director David Martin estimates June of 2012 for a first draft ready to be ready for public review with final approval around the beginning of 2013.
In the interim between the passage of the LUCE and the adoption of the conformed Zoning Code many developers have chosen, or been advised by the City, to use the DA process. The terms of the DA contract are required to be negotiated in public. A kicker to this issue, but one to keep in mind, is that, because the DA is a contract, it can establish terms that are outside the LUCE.
That brings us back, full circle, to the fact that the much needed expertise it will take to understand the architecture, design and land use issues being considered is not able to be at the table because the DA is a contract.
If you got this far you can see the conundrum for the City. Marsha Moutrie said, “this body of law in Section 1090 has costs for the City in terms of our ability to ensure that very well qualified people serve on our Boards and Commissions. At the same time, this body of law preserves the public trust in government.”
In an important case regarding Sec. 1090, Thompson v. Call (1985), the Judge wrote, “The truism that a person cannot serve two masters simultaneously finds expression in California's statutory doctrine that no public official shall be financially interested in any contract made by that person or by any body or board of which he or she is a member.” It’s hard to argue with that.
Is there a solution in sight? One that preserves public trust, respects the law and includes the much-needed voice of experts on our Boards and Commissions. One possibility may be to look at the cumulative environmental impacts of the 14 large development projects, all proposed to be developed in a relatively short time frame, and consider whether it would be prudent to slow down and space out the projects to lessen the construction and traffic impacts on residents, businesses and visitors. The City would be able to so because cumulative impacts are considered under the required Environmental Review.
Doing so could mean that many, or even most, of the Development Agreements being considered might reasonably be processed using other planning mechanisms. In that event the DA could become the exception rather than the rule and the many and highly qualified design professionals who have been such able volunteers in the service of the City could again participate in the City dialogue as Board and Commission members.
The positives would be a lower level of disruption and congestion from the proposed developments and a higher level of public service from the many, highly talented design professionals that we are fortunate live in the City. The negatives are that a slower timetable may create hardships for developers and for the people depending on them for income, employment, business, and the other opportunities that good development can bring.
The future scale and character of the City will be decided by these projects. I say it’s worth discussing all alternatives and looking for the best way to continue to have all voices at the table. We saw how important it was to the LUCE process to include the voices of design professionals. Let’s not lose them now.
What Say You?
Contact Susan Cloke
susan@smmirror.com
