Ripped from the Headlines

By Frank Gruber

It's already begun, that anxiety-ridden six months of the year when the city and the school district are wrapped up in the dramas of their budgets.

It's good that the City Council has acted on its own to see if there are long-term solutions for the local schools' funding problems before being overtaken by events, namely an initiative directing City tax revenues to the schools. ("Council Votes to Explore Funding Plan to Help Schools," Dec. 18, 2003)

It's important to acknowledge that the City has responsibilities of its own, and that in general it's not a good idea to budget by ballot box.

Yet if the City Council continues, as it has done over the years, to hire more planning staff, code and traffic enforcers, attorneys and police and employees of all other kinds, to serve a stable population, rather than give money to the schools, the electorate might think different.

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I have to learn more about Mello-Roos bonds before I have an opinion whether the innovative plan of Council members Feinstein and Katz to use them to buy school properties and generate operating revenues is a good idea. ("Councilmen Float Plan," Dec. 16, 2003)

But if the City is going to ask voters to tax themselves to pay for school expenses, that's one thing. If the City is going to ask us to tax ourselves to build hugely expensive and unneeded underground parking garages, that's quite another.

This is one voter who is never going to vote for bonds to subsidize parking underneath the Samohi football field or under what's now the Madison site parking lot.

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I hope the City's "performance audit" of the Planning Department goes even farther than the additions the City Council made to the Planning Commission's original recommendation. ("Council Backs Call for Planning Commission Audit," Dec. 19, 2003)

The Planning Commission focussed its shock and outrage on planning staff. The City Council widened the focus to include the permit and code enforcement processes and the zoning code itself. But I hope that the "auditor" the City hires takes a long look at the two deliberative bodies that set the tone for everything that happens regarding development in the city -- the Planning Commission and the City Council.

There are reasons our bureaucrats are afraid of making decisions. For one, they don't like being yelled at by the Planning Commission. For another, the planning commissioners have a hard time staying within the parameters of their discretion. For another, the commissioners don't like to disagree with each other and bend over backwards to achieve consensus, thus according whoever that night has the most extreme view a lot of power and throwing any notion of consistency out the window.

Both the Planning Commission and the City Council give inordinate weight to whatever squeaky wheels involve themselves in a given project. The slightest hypothetical grievance by a neighbor or a self-appointed neighborhood group is enough to cause hours of debate and months and even years of delay.

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There is a reason our zoning code is so complicated, and that's because our City Council tries to solve every social ill by means of zoning.

Often the social ills the City Council wants to alleviate are ludicrous and usually the solution is to make development decisions more subjective. Tuesday night, the very same night City Council authorized the performance audit, the council extended for another seven months the "emergency" ordinance -- originally adopted in 2000 -- that limits development on Montana Avenue until new zoning standards are enacted by lowering the threshold for discretionary, i.e., subjective review.

What was the crisis that caused the City Council to enact the emergency ordinance in 2000 and which, according to the staff report, still exists?

"The size and compatibility of commercial development and the adverse effects of sidewalk dining and incidental food service."

Get it? The City Council had to lower, on an emergency basis, the threshold for development review because there were too many happy people enjoying cappuccini on the sidewalks in front of too many coffee shops.

Yet just a week ago the City Council voted to encourage outdoor dining, passing an ordinance that allows "bars and restaurants[to] provide outdoor seating as long as it is used by customers for dining or drinking. ("Council Paves Way for Sidewalk Displays," Dec. 12, 2003)

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Before I discuss the Architectural Review Board hearing on the apartment building at the corner of Seaview Terrace and Appian Way, let me make a correction. Last week I reported that a new developer converted the project from condomiums to apartments, but apparently my information was wrong, and it's the same developer who has hung on for more than five years. My apologies.

In any case, after five years, the hearing was anticlimactic. ("ARB Gives Major Projects Mixed Reviews," Dec. 19, 2003)

Neighbors Stephanie Barbanell and Jerry Bass, whom Wade Killefer, the project's architect, described as having been the most vocal opponents of the building in its earlier incarnation as a condominium, chose discretion over valor. They met with Mr. Killefer the week before the meeting and gave him their critique. Mr. Killefer and the developer found the suggestions acceptable, and in a letter to the Planning Department they agreed to make the changes in return for Ms. Barbanell and Mr. Bass agreeing not to oppose the project.

The concerns neighbors expressed at the ARB hearing mostly involved noise from the building's mechanicals, the depth of the water table, exhaust from the parking, and similar matters not relevant to the building's design, the subject of the hearing. Even Greg Cole, who recently survived a barrage of non-design comments to the addition to his house at 18 Seaview Terrace, couldn't resist informing the ARB of his worries about noise.

I'm not unsympathetic to the neighbors. Even in the administrative approval context it makes sense to provide a window for neighbors to give comments to builders. They know the site, and developers should be smart enough to listen. But when a discretionary and subjective process empowers people, they can abuse the power.

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It's worth noting -- in the context of the audit of the planning process -- that when the Seaview/Appian Way project previously, as a condominium, was subject to discretionary development review, it didn't get past the Planning Commission.

The first time the developers tried, in 1998, I was on the Commission. The commissioners all liked the project but did not like how the design worked in the context of the Seaview Terrace walk street. We asked for what we thought would be a quick redesign.

When the project returned to the Commission in 2000, with a new design apparently similar to what the ARB approved last Monday, the Commission was entirely new. The new Commission thought the project was too big, even though it was consistent with the zoning. They sent it back for redesign and reduction.

In a bizarre incident at last week's ARB hearing, Darrell Clarke, one of the members of the Commission in 2000, and the Chairman of the Commission now, appeared before the ARB to give the board members his opinion that because design review includes analysis of "massing," the size of a project is within their jurisdiction.

Mr. Clarke said that because the Planning Commission might ultimately hear the matter on appeal he didn't want to make any comment on the plans of the Seaview/Appian project, but it was hard to imagine any other reason for his appearance. Why otherwise choose the hearing on a specific project to raise a "general" question of the ARB's jurisdiction?

Mr. Clarke's appearance was especially troubling since, according to the minutes of the 2000 Planning Commission meeting, he stated at least seven times that the project was too big for the neighborhood, and specifically said that it needed to have fewer units. (Minutes of Nov. 8, 2000 Planning Commission meeting)

Of course, Mr. Clarke was wrong about the jurisdiction of the ARB. As the ARB members correctly explained the law to Mr. Clarke, design review includes evaluation of a building's "massing" and "compatibility" with nearby developments, but only as massing and compatibility relate to appearance, not to square footage.