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“To give emergency powers reserved for earthquakes and horrible storms and true catastrophic emergencies -- to apply that to housing to override community plans and zoning for an indefinite period of time -- it’s just not good government and it decimates due process.”
-Michael Everoff, Co-founder of Fix the City, a group with two lawsuits challenging ED1's legality
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June 22, 2024
IS ED1 LEGAL?
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Can the Mayor make a law? Usually this is true: “With so much power in relatively few hands, the relationship the mayor has with the council is particularly important. The mayor needs the council's support to enact policy. Think of the council as L.A.'s legislature. While the mayor can make proposals and rally public support, it’s the council that writes and passes the laws.” (LAist)
Executive Directive 1 is different. Mayor Bass declared a state of emergency about the unhoused and housing crisis and a state of emergency gives a mayor the right to make a temporary law. But a group called Fix the City has two lawsuits challenging the legality of the emergency and ED1. They claim it breaks both city and state laws. If we understand correctly, these allegedly broken laws are in place to protect us from having one politician having too much power. Officials receive extra rights during emergencies which are meant to be used short-term instead of becoming the new normal. For example, in the case of ED1, the fast-tracking for housing is happening because the state of emergency allows many standing laws to be bypassed. These are laws that were often chosen by our community voices and votes that, in our opinion, help create sustainable, livable, and truly affordable home environments for residents. "The emergency declaration provided the mayor's team the power to award contracts, enter into lease agreements, suspend competitive bidding, commandeer property and lift regulations on the production of affordable housing, among other things. Lawyers for Fix the City argued that Bass was prohibited from making such a declaration, in part because city law defines a local emergency as an 'occurrence,' beyond the control of normal government operations. An emergency, those attorneys said, applies to a sudden or unexpected event, such as an earthquake or flood." (MSN.com / LA Times) Fix the City says according to city law, a local emergency isn't for chronic conditions. "Fix the City also argued that the emergency declaration violated state laws, including the California Emergency Services Act, which defines a local emergency as the existence of conditions of 'disaster or of extreme peril' caused by fire, flood, storm, epidemic, riot, cyberterrorism or various other events." (MSN.com / LA Times) |
The California Emergency Services Act, says local emergency "means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, deenergization event, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy, which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage...”
Also, according to California Law, a state of emergency also legally can’t last longer than 7 days, and if it does, it needs to be ratified within 7 days and renewed every 60 days to protect us from having autocratic leadership. But Fix the City says the mayor’s emergency wasn't ratified within 7 days and wasn't renewed within 60 days. In the year and a half of its existence, it has only been renewed once. Michael Everoff, the group's Co-founder, said, “To give emergency powers reserved for earthquakes and horrible storms and true catastrophic emergencies -- to apply that to housing to override community plans and zoning for an indefinite period of time -- it’s just not good government and it decimates due process.” On May 30th, an L.A. County judge dismissed the lawsuits, but Fix the City is appealing, calling the ruling “logically, factually and legally wrong.” (LA Times) So the legal battle continues. We don't want a mayor to have unchecked executive power. The mayor has used her power to protect the expensive housing, but is allowing truly affordable housing to be destroyed. The power is being used to help developers, not the homeless as promised, and it's also hurting low and middle-income longtime residents. We used to have a say in changes in our community when we had a public comment period, but that has also been taken by the executive directive. Checks and balances are there for a reason. They are protections for us. But until the courts decide otherwise, ED1 is happening as a temporary law. During this trial-period, we are supposed to give our feedback to the mayor and city council so they can adapt the law to our needs before potentially finalizing it. |
During a pandemic Zoom meeting where residents spoke to the city council, a woman shared how, over 30 years ago, she and the community spent years working to make the local zoning law which says developers can't build higher than two stories in Hollywood. She was upset that developers were able to build higher in recent years, despite the code never being updated.
Last year, in May 2023, without a vote from residents, the city council approved a new Downtown Community Plan and a Hollywood Community Plan, both of which allowed developers to build much higher than before and removed many of the protections we had that kept developers from making micro-units in our areas.
The problem here isn't just that the community efforts from decades before were overwritten or that the people didn't get a vote in the current decision. It's also that the Downtown Community Plan and the Hollywood Plan were very similar to the 2012 version of these plans that were struck down by a judge because they were illegal. The city council passed the 2023 versions of the plans unanimously, but three different groups brought lawsuits against the plans for different reasons.
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"The three lawsuits present a powerful critique of the recently adopted Hollywood Community Plan. The dilemma faced by the planners updating LA’s Community Plans are their contradictory goals. On one hand, they are bound by the planning provisions in the LA City Charter, the Los Angeles Municipal Code, and the State’s planning laws. On the other hand, their mission is to undermine LA’s existing zoning ordinances to encourage speculative real estate investment. This will not only fail, but it will also unleash four additional problems:
1) When upzoning is implemented through land use ordinances appended to Community Plans, it inflates the market value of the underlying parcels. This encourages property owners to flip their parcels. It can also lead to nothing at all. For example, LA’s commercially-zoned parcels – many on transit corridors – permit by-right apartments augmented by density bonuses. Yet, few developers ever build on these parcels. 2) When new development takes place in Los Angeles, the actors are profit-seeking private developers. They build market-rate and luxury apartments for the well-off, not unprofitable units for the homeless and overcrowded. |
3) The main purpose of Community Plans is to ensure that a city’s infrastructure and public services meet the needs of forecast numbers of people and jobs. By abdicating this role, unrestrained real estate development can lead to the failure of LA’s old public infrastructure and service systems.
4) Community plans are the bridge between citywide General Plan elements and local communities. Unfortunately, many of these elements are out-of-date. They should be updated before they are applied to local communities. For example:
How telling that despite successful lawsuits and City Hall’s unsuccessful misuse of the planning process to promote real estate development, City Hall won’t change course. By increasing property values, upzoning prices even more people out of housing, and many become homeless. Plus, because the new apartments are expensive, upzoning also replaces low-income transit riders with high income automobile drivers. Even though real world outcomes expose these fictitious cover stories, developers still benefit from upzoning, its intended purpose." |
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Why does this matter? Because these plans are part of many law changes that paved the way for ED1.
According to Calmatters.org, ED1 is also using some state laws to override our local laws: "Most so-called 'ED1 projects' also make use of a hodgepodge of statewide 'density bonus' laws that allow developers of 100% affordable housing projects to pack far more units and floors onto a given lot than would otherwise be allowed under local zoning rules."² |
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Also, the question had come up of why there were moderate-income units in 100% affordable housing. The answer is one more of the ways that laws have been changed that led to a ripe environment for ED1. In 2019, the Governor signed Assembly Bill 1763, written by CA Assembly member David Chiu, which redefined the words "100% affordable" to mean 20% of an 100% affordable building can be for moderate-income households, which is more expensive than low-income. Percentages don't work that way. Most of the public isn't aware that when the government says "100% affordable," "100%" no longer has its original definition. "Affordable" doesn't either. It means affordable to people who make up to $70,000 a year.
In addition to these preparatory steps being either potentially illegal or in some cases, simply misleading, Fix the City, the group with two active lawsuits against the City of Los Angeles, disputes the legality of the Local State of Emergency and anything succeeding it, like ED1.
In addition to these preparatory steps being either potentially illegal or in some cases, simply misleading, Fix the City, the group with two active lawsuits against the City of Los Angeles, disputes the legality of the Local State of Emergency and anything succeeding it, like ED1.
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From the lawsuit:
"Ratification by the legislative branch in an initially short period of seven days provides a crucial check on executive power. Regular and recurring ratifications within 60 days, with the mandate that the emergency be declared over as soon as possible, provides a further check on executive power. |
Ratification performs another critical function: It provides, indeed forces, the opportunity for public participation initially and for as long as the “emergency” continues because the act of ratification is the subject of a public hearing."
The lawsuit points out that California Government Code 8630 requires the City Council to ratify a State of Emergency, but the mayor's Local Emergency [written by the mayor's office] only requires the emergency be presented to City Council. It also sets the renewals at 90 days instead of the legal 60 days. Therefore, the Local Emergency's "reduced checks and balances violates controlling state law."
"Also, contrary to the law, the July 7, 2023 Emergency Declaration made under LAAC 8.33 was never effective because it was not ratified by the City Council."
Lastly, according to the allegedly illegal Local Emergency declared by the mayor, the Emergency Declaration was over on October 5, 2023 since the City Council didn't renew in the 90-day time frame written in its own terms.
The lawsuit points out that California Government Code 8630 requires the City Council to ratify a State of Emergency, but the mayor's Local Emergency [written by the mayor's office] only requires the emergency be presented to City Council. It also sets the renewals at 90 days instead of the legal 60 days. Therefore, the Local Emergency's "reduced checks and balances violates controlling state law."
"Also, contrary to the law, the July 7, 2023 Emergency Declaration made under LAAC 8.33 was never effective because it was not ratified by the City Council."
Lastly, according to the allegedly illegal Local Emergency declared by the mayor, the Emergency Declaration was over on October 5, 2023 since the City Council didn't renew in the 90-day time frame written in its own terms.
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Fix the City believes the route taken to achieve ED1 "eliminates public hearings, due process and the right of appeal.” The lawsuit states the State of Emergency declaration that opened the door for ED1 violates the:
"As written, LAAC 8.33 [The Local Housing and/or Homeless Emergency] is a vast and illegal expansion of mayoral power that seeks to override constitutional and statutory restraints on executive powers, that eliminates competitive bidding in violation of Public Contracts." |
The Local Emergency "places vast powers in the hands of the Mayor allowing the
"Fix the City brings this action because of the weighty public interest of the citizens of the City in open governance and how their tax dollars are spent. ...Fix the City is suing on behalf of itself, its board members, and on behalf of all others who will be affected as well as all citizens of the City of Los Angeles."
-Verified Petition for Writ of Mandamus and Complaint for Declaratory and Inductive Relief, a lawsuit by Fix the City vs. the City of Los Angeles
Again, on May 30th, an L.A. County judge dismissed the lawsuits, but Fix the City is appealing. "Appealing" means Fix the City goes to an appellate court to say the judge made a mistake. No new evidence is presented. The appellate court decides if a mistake was made.
Also, "California housing advocates have already sued over the city’s decision to halt projects in single-family zones, which make up 74% of the city’s residential land." (LAist)
While ED1 seems like it's not legal and therefore, most likely, shouldn't be used anywhere, the act of taking 74% of the land away from developers who sound eager to build (see this White Paper from 2018), seems to have caused them to turn their heads toward the remaining 26% of land. This funnels ED1 projects toward many neighborhoods who have less resources and less time to protect themselves from an allegedly illegal law that takes away public comment and rushes projects.
- taking of private property,
- the change of use of public property to the detriment of a broad range of citizens,
- approval of the development of property and operation of facilities behind the closed doors of City Hall,
- and the expenditure of City funds without the benefit of competitive bidding."
"Fix the City brings this action because of the weighty public interest of the citizens of the City in open governance and how their tax dollars are spent. ...Fix the City is suing on behalf of itself, its board members, and on behalf of all others who will be affected as well as all citizens of the City of Los Angeles."
-Verified Petition for Writ of Mandamus and Complaint for Declaratory and Inductive Relief, a lawsuit by Fix the City vs. the City of Los Angeles
Again, on May 30th, an L.A. County judge dismissed the lawsuits, but Fix the City is appealing. "Appealing" means Fix the City goes to an appellate court to say the judge made a mistake. No new evidence is presented. The appellate court decides if a mistake was made.
Also, "California housing advocates have already sued over the city’s decision to halt projects in single-family zones, which make up 74% of the city’s residential land." (LAist)
While ED1 seems like it's not legal and therefore, most likely, shouldn't be used anywhere, the act of taking 74% of the land away from developers who sound eager to build (see this White Paper from 2018), seems to have caused them to turn their heads toward the remaining 26% of land. This funnels ED1 projects toward many neighborhoods who have less resources and less time to protect themselves from an allegedly illegal law that takes away public comment and rushes projects.
THESE ARE THE PEOPLE IN OUR NEIGHBORHOOD
#SAVEOURHOMES