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The Letter and the Law


By Jorge Casuso

June 17, 2009 – A few eyebrows were raised last week when new Planning Commissioner Ted Winterer voted on an issue that had been opposed in a letter bearing his name.

Winterer cast the only vote last Wednesday opposing a recommendation that the Santa Monica City Council initiate a development agreement to develop a mixed-use 284-room hotel with commercial, retail and 16 multi-family rental units at 710 Wilshire Boulevard.

The vote came after a letter warning that the proposed development is “way too big (and) grossly out of scale with its neighboring surroundings” was sent to the commission by the Santa Monica Coalition for a Livable City. Winterer, an advisor for the group, was listed on the letterhead.

So was Winterer’s vote illegal or unethical? No, said the City Attorney’s office, which Winterer consulted before he cast his vote.

Winterer was not bound to step down because he had no monetary interest in the proposed project and the commission was not acting as a quasi-judicial body, which would have required that he express no prior opinion on the matter, said City Attorney Marsha Moutrie.

Under State law, “a development agreement is an ordinance, and the law on conflict does not prohibit a legislator from having a view on a policy issue,” Moutrie said.

That was the same information Winterer said he received when he consulted before the meeting with Barry Rosenbaum, the City’s attorney in charge of land use issues.

“I discussed it with Barry beforehand, and he assured me it was okay to go ahead and vote on it,” said Winterer, who was appointed by the council to the commission last month.

Winterer, who serves as an advisor for the coalition, said he took no part in discussing or drafting the letter with the group’s board or steering committee.

“I was not in on the meeting where it was discussed and did not take part in the writing of the letter, said Winterer. “The letter did not affect my decision on the issue.”

Winterer said he plans to maintain “some involvement” with the coalition, but will “erect a Chinese wall between me and any issue taken by the Planning Commission.”

Development agreements have become a hot-button issue for community activists. The agreements, which must be approved by the City Council, allow developers to exceed zoning and land use standards, while remaining consistent with local planning policies under the general plan.

This month, the coalition, along with four neighborhood groups, sent letters to City officials opposing the proposed project at 710 Wilshire, as well as a proposal to replace a rent control building with luxury oceanfront condominiums that also will require a development agreement.

"Development Agreements," the coalition wrote in a June 10 letter to the commission, “make a sham of zoning as they allow wealthy developers to play by a different set of rules than the rest of us: If you don't like the zoning, you can change it for your project.”

The letter, which was unsigned and included Winterer’s name on the letterhead, also worried that “residents don't have a voice when these backroom deals are made; deals that profoundly affect their neighborhoods.”

The letter opposing the proposed project to redevelop that landmark office building at 710 Wilshire by adding on to the original structure came two days after the coalition sent a letter to the City Council, signed by 150 residents, including Winterer. (“Coalition Opposes Condo Development,” June 9, 2009)

The letter opposed an anticipated development agreement for the condo development at the corner of Ocean Avenue and San Vicente Boulevard. Last week the council upheld an appeal by the developer, Trammel Crow, and overturned a decision by the Landmark Commission to designate the 47-unit apartment building a landmark. (“Council Overturns Landmark Designation for Former Mayor’s Building,” June 10, 2009)

Winterer -- who ran for City Council last November and championed a failed measure to cap most commercial development -- said he is worried about the number of development agreements in the pipeline.

He noted that there were seven development agreements approved or being considered, compared to only three in the previous six years. (“Development Agreements on the Rise, August 13, 2008)

“I think we should know what else is out there looming on the horizon,” said Winterer, who said he planned to try to place the issue as a discussion item Wednesday night. “I think we should have a framework.

“Regardless of whether they’re a good planning tool or not, it’s constructive to have a dialogue,” he said.

Winterer worries that the number of development agreements being negotiated will take precious staff time from the major task at hand – drafting a Land Use and Circulation Element (LUCE) to guide development in the beachside city for the next quarter century.

Once the LUCE is approved, it will reduce the number of development agreements, he said.


“A development agreement is an ordinance." Marsha Moutrie


“The letter did not affect my decision on the issue.”
Ted Winterer

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