Memo to council: make decisions and the priorities will take care of themselves

Tomorrow the Santa Monica City Council will convene in an extraordinary Sunday session to, in the words of the staff report, identify “which three to five of the many significant things the City is already doing should be the top priorities for the upcoming years.”

Due to prior commitments, including a general commitment to using Sunday mornings to preserve my sanity rather than wreck it, I’m going to miss the retreat, but that doesn’t mean I don’t believe it’s a good idea to prioritize. Our municipal government does try to do too much (meaning more than it has capacity for, not that there is too much to do), and even if all this activity is the result of good faith efforts to fix every problem, at some point it’s necessary to step back. When I look at the accomplishments of the City of Santa Monica, my belief in government in strengthened. But when I look at the ambitions, I at least begin to understand where traditional conservative thinking comes from.

The staff report lists twelve suggestions for the council to consider (I could suggest even a few more), and the report mentions in passing that staff has identified 68 high-level departmental goals for themselves. So pruning and prioritizing makes sense. If I were setting the agenda for a council retreat, however, I would prioritize some time for soul-searching. The root of the problem is that the council itself has a hard time making decisions and sticking to them, and is easily distracted by whatever is the crisis of the day, so that it wastes its own time and staff’s time going this way and that.

Take the LUCE, which is listed as one of many past “Strategic Projects and Priorities That Have Shaped Santa Monica.” When City Council in 2004 authorized staff to begin the LUCE process, the expectation was that the project would take two years. It took six and the final product didn’t even cover the crucial areas of downtown and the Bergamot district, which were left to more process to develop specific plans. More that than, the six-year process resulted in a LUCE that was soon gutted by a combination of the Hines Paper Mate fiasco and the zoning that was supposed to implement the LUCE but took five years to finalize.

How can government expect to sustain the vision to make good decisions over an eleven-year process? There were many immediate causes for all the delays, but the underlying cause was that the council was afraid to make decisions. It was always easier to authorize more process, hire more consultants, take more surveys, allow more public venting. The LUCE that resulted is itself a document that enshrines indecision, by making the most important future development decisions discretionary.

The most pernicious impact of the passage of time was that by the time the council voted on the key implementations of the LUCE, on Hines and the zoning ordinance, the focus and priorities, not to mention the membership, of the council had drastically changed from what they had been in 2004 and 2010.

Perhaps I’m thinking about this because last Monday the ultimate insult resulting from the epic failure of the LUCE, namely the “Pen Factory” re-do of the Paper Mate factory, came before the Architectural Review Board. In 2004 it was clear that the focus of future development in Santa Monica would be the old industrial areas around Bergamot, and that the key goal of the LUCE was not to repeat the planning failures of the 1980s, when the council authorized monolithic suburban-style office parks on former industrial properties. The most important piece of property in the area is the Paper Mate site, because of its size but even more important its location between the future Expo stop and the rest of the district to the north and east.

So eleven years later, after so much governmental effort, what role does government have in the redevelopment of this property into . . . monolithic offices? Drum roll . . . government gets to help pick out the paint colors, while it pleads with the new Pen Factory property owners not to hide the building behind a giant hedge. Government can’t even get them to remove a decrepit chain link fence that seals the property off from Olympic Boulevard.

What role did time play in this? For one thing, if the LUCE had been completed in two years, by 2006, when the economy seemed strong, staff and council might have been more confident reducing the amount of office development and increasing the amount of housing. As a result, the developer would have had to design a better project.

As it happened, these decisions were made in 2009 and 2010, during the Great Recession, and we had a City Manager new to Santa Monica who was panicked by the idea of having to provide services to a lot of new residents without offsetting taxes from businesses. We heard a lot about the virtues of “creative offices” and we had a consultant tell us that the purpose of the development there was, in effect, to generate more riders for Expo. Council unanimously passed a LUCE that allowed far too much office development in the Bergamot area.

Then, by the time the actual plans came up for approval, in 2014, times had changed again, and we know what happened then. As a result, we’re getting just what the LUCE was supposed to protect us against.

Santa Monicans have generally elected capable and knowledgeable councilmembers. What the council needs is confidence. They need to make decisions based on what they know and believe, not hide behind endless public process that satisfies no one and exhausts everyone. Then the priorities will take care of themselves.

Thanks for reading.

When transparency meets opacity

In 2000 voters in Santa Monica passed the “Oaks Initiative,” a charter amendment intended to stop corruption by preventing public officials from benefiting financially from decisions they make. Unlike laws against bribery, etc., that target actual malfeasance, the Oaks Initiative is based on a presumption. It presumes that only the promise of monetary benefit, in the form of campaign contributions or compensation for services, could have motivated any public official to make a decision beneficial to a person or entity if after making the decision the official receives a monetary benefit from the person or entity that received the benefit.

Oaks was nine years ahead of the Tea Party in its cynicism about government.

The Oaks Initiative is also odd because it doesn’t prevent officials from receiving benefits before making any decision. Worse, the Oaks Initiative, by restricting contributions directly to candidates, further encourages contributions to non-accountable independent campaigns that spend far more money in Santa Monica elections than the candidates themselves.

The Oaks Initiative was in the news last week because three members of the Transparency Project, including its founder, Mary Marlow, have brought a lawsuit against former City Manager Rod Gould for accepting employment from Management Partners, Inc., a company that Gould had hired while he was City Manager to perform services for the City. Marlow and the other plaintiffs brought the suit after City Attorney Marsha Moutrie told the Transparency Project that because of a conflict of interest, she could not enforce the law.

On its face, it appears that Marlow and her fellow plaintiffs have a strong case. Gould awarded contracts worth more than $25,000 to Management Partners, and within the relevant Oaks time period during which he was restricted from getting a benefit from Management Partners (two years after he left his employment with the City) Management Partners hired him.

However, after Oaks was passed, two trial courts found that it was unconstitutional. While those rulings were voided on appeal for procedural reasons, Gould will probably raise constitutional objections, and he may have other arguments. California law includes strong public policies in favor of a free labor market. For instance, in most circumstances California bans covenants not to compete. Courts might apply those policies against the application of Oaks when it prevents someone who hasn’t otherwise broken the law from getting a job.

But unless he has someone to pay his legal fees, there will be a lot of pressure on Gould to settle. Under Oaks, successful plaintiffs get 10% of any damages assessed against the defendant and repayment of their costs of litigation, but defendants who win have no redress against plaintiffs.

One thing is clear: the case further tarnishes Gould’s reputation. While Gould did a good job running the City after the Great Recession, his taking the job with Management Partners and the Elizabeth Riel fiasco raise significant questions about his judgment.

At the same time, the lawsuit raises questions about the Transparency Project and its collective judgment.

By any standard, let alone the standards of municipal government in California, Santa Monica is a well-governed city. Even if you believe that Santa Monica City Hall is a cesspool of corruption, do you think it stinks because a technocrat like Gould hired a firm of technocrats to help manage Santa Monica’s bureaucracy? The annual budget of Santa Monica is something like half a billion dollars; the total dollar amount of the four contracts Gould awarded to Management Partners was about $165,000, less than half of the annual compensation Gould received from the City, and I presume less than what he’s getting from his new employer. Sure, Gould done wrong taking the job, but is this really quid pro quo government?

Marlow and the other Transparency Project volunteers may be well intentioned, but the case reinforces the perception that the group is an adjunct of the no-growth side of Santa Monica politics. Here they’re bringing this lawsuit against Gould, but they’ve ignored the most opaque shenanigans in Santa Monica politics, namely the deal that got Sue Himmelrich the endorsement of Santa Monicans for Renters Rights (SMRR) in the 2014 City Council election.

Consider these true statements and then I’ll give you a thought experiment:

  • Months before SMRR, by far the most powerful political organization in Santa Monica, would be making its endorsements in the 2014 election, Himmelrich hired Denny Zane, a founder of SMRR, a member of its Steering Committee, and the most influential individual in SMRR, to be her campaign consultant.
  • Himmelrich failed to get the SMRR endorsement at the organization’s membership convention, and then she didn’t get the endorsement from the SMRR Steering Committee when it met behind closed doors after the convention. But a month later, at another closed-door meeting, Himmelrich’s supporters on the Steering Committee made a deal with two Steering Committee members who had strong ties to Santa Monica College to give the SMRR endorsement to Himmelrich if the Steering Committee also endorsed Andrew Walzer, who was running for reelection to the SMC Board of Trustees.
  • The SMRR Steering Committee makes its endorsements, the most impactful decisions in Santa Monica politics, not only in secret, but following rules and procedures that are completely opaque not only to the public but even to SMRR members.
  • Himmelrich’s husband gave tens of thousands of dollars in campaign contributions to organizations that run campaigns that are supposed to be independent of Himmelrich’s campaign.
  • Himmelrich spent over $100,000 of her own money to get elected, explaining that she would do whatever it takes to get elected.

Here’s the thought experiment. Substitute “Pam O’Connor” for “Himmelrich” in those statements. Then imagine what the reaction of the Transparency Project would have been.

Thanks for reading.

Sprawl Repair

Santa Monica is a post-sprawl city, but vestigial remains of its origins are still around. The most obvious are its major commercial boulevards, which offer miles of low-slung, mostly nondescript but often ramshackle commercial buildings, strip and mini-malls, and surface parking lots. This land use pattern is a characteristic of sprawl, in great part because of onsite parking requirements.

The ugliness of sprawl is so commonplace that people take it for granted. It’s another aspect of what John Kenneth Galbraith described as “private affluence and public squalor.”

However, there is one boulevard in Santa Monica that is so degraded that even people who rarely accept the idea that Santa Monica might stand to change for the better in any respect acknowledge its ugliness. I’m speaking, of course, of Lincoln Boulevard from the freeway to the Venice border. (Lincoln is even uglier in Venice, because of the utility poles and because there are even fewer trees than in Santa Monica, but that’s for someone else to write about.)

The urbanist writer James Howard Kunstler, in his great screed, The Geography of Nowhere, coined the word “crudscape” to describe what the roads and highways that lead into cities and towns all across America look like, and crudscape is what Lincoln Boulevard is.

Lincoln Boulevard is so ugly (this is sounding like a Rodney Dangerfield routine) that a few years ago neighbors decided to do something about it. Some of them made a video about what they called “Stinkin’ Lincoln,” the Ocean Park Association set up a committee to look into how Lincoln could be improved, and most eye-opening of all, a young neighbor, Evan Meyer, started persuading businesses to allow artists to paint murals on their walls, in a project first called Beautify Lincoln, but now expanded to Beautify Earth.

The City’s Planning Department got involved, not only in response to all the agitation from the community, but also because of the zoning ordinance update, and now there’s a process, called “The LiNC” (from “Lincoln Neighborhood Corridor”), to remake the boulevard into something you might actually want to take a stroll on. Last Thursday evening the department hosted a workshop to get feedback on the work the department and consultants have done so far. (Materials presented at the workshop can be accessed through the LiNC website, by scrolling down to the section on “Workshops & Milestones.)

There are many reasons that Lincoln is particularly difficult to improve. To begin with, since there are so few north-south routes west of Centinela, it carries a heavy transportation load. At the workshop planners said that vehicle traffic is 50,000 a day and 8,000 riders take the bus. This is not realistically a situation for a “road diet” like Santa Monica has used on other streets, including Ocean Park Boulevard.

Perhaps the most exciting part of the developing plans for Lincoln is the return of the idea to run bus-only lanes during peak hours. The bus lanes would not require the removal of any traffic lanes because they would replace curbside parking; studies show that very few of those spaces are used during peak travel hours. At the workshop last week, and previously in surveys, residents showed strong support for the bus lanes, which would, according to planning staff, drastically improve travel times for buses and thus attract more riders.

While a road diet wouldn’t work at the present time, the City is planning on using landscaped medians to at least make the roadway greener (and in some cases provide “way stations” for pedestrians trying to cross the street). One of the questions staff had for the public last week was whether residents favored more or fewer medians. Nearly everyone at the workshop, including myself, voted for more medians, yet the planners need to be careful not to turn the boulevard into a divided highway. In certain cases, it might be better, where the center turn lane can be eliminated, to use the regained space to widen sidewalks rather than build a median.

Another problem with Lincoln is the narrowness of many of the lots that line it; the effect of narrow lots is that even if the economics of a site would justify the cost of underground parking, it’s often impossible physically to build it. Given the parking requirements, and the lack of any shared parking other than street parking, this means that in many locations it’s practically impossible to build anything new that might improve the boulevard.

Rather than wait for new development that might never happen, the LiNC planners are focusing on developing programs to encourage property owners and businesses to upgrade their current buildings. For the City’s part, planners have identified 48 locations where the City could plant more trees.

Another issue is that because the Ocean Park and Sunset Park neighborhoods, which are on opposite sides of Lincoln, were subdivided separately, few side streets on one side of the boulevard match up with streets on the other side, which means that there are few places where pedestrians can cross. At the workshop last week planners said that the average distance now between crosswalks is 1500 feet—five football fields! They have plans to add crosswalks so that the average distance is half that.

All in all, the ideas the Planning Department presented at the workshop were well received. We in Santa Monica like to celebrate our history. The Lincoln Boulevard crudscape should become it.

Thanks for reading.

U.S. Reps to FAA: make up your administrative mind

A few weeks ago U.S. Representatives Ted Lieu and Karen Bass organized a meeting in Washington where Santa Monica officials and local residents could express their grievances about Santa Monica Airport to Federal Aviation Administration (FAA) officials. The meeting had no concrete effect because the FAA had declared ahead of time that its representatives would not respond to anything that was said there, but the meeting did result in Reps. Lieu and Bass promising to press the FAA to issue an overdue decision in an administrative proceeding brought against the City by the National Business Aviation Association (NBAA) and other aviation interests.

By way of background, the case Lieu and Bass referred to involves a grant of money Santa Monica received from the FAA for airport upgrades under a contract entered into in 1994. The contract obligated the City to assure continued operation of the airport, but for no longer than 20 years, i.e., the City’s obligations under the contract would terminate no later than 2014. This is important because the City was not going to accept any money from the FAA that would tie the City’s hands beyond the expiration of another agreement with the FAA, from 1984, that required the City to operate the airport only to July 1, 2015. (The City’s obligations under the 1994 contract are often referred to as “grant assurances,” and the case is often referred to as the “grant assurances case.”)

In 2003 the 1994 contract was amended to increase the amount of the FAA’s grant by about $240,000 because work contemplated in the 1994 agreement proved to be more expensive than anticipated. The amendment, however, left the remaining terms of the contract, including its 2014 expiration date, unchanged. Nonetheless, last year the NBAA was the lead plaintiff in an FAA administrative law proceeding demanding that the FAA tell the City that it was bound, because of the 2003 amendment, to keep the airport operating until 2023, i.e., 20 years after the increase in the grant.

For months now the grant assurances case has been fully briefed. The delay maintains the status quo at the airport, which must please the aviation parties who brought the action. Santa Monica wants a decision. Any decision (for reasons I’ll discuss below).

Last week Lieu and Bass acted on their promise and sent a letter to the FAA that not only asked the agency to make up its administrative mind, but also forcefully expressed the City’s case why the 2003 amendment did not extend the contract term. (You can read the letter here.)

The decision in the grant assurances case is of tremendous importance—but not, I would argue, for what the decision might be. Whatever the decision is, it will free the City to take drastic action regarding the airport.

More background. Santa Monica has brought its own lawsuit against the FAA to determine whether a 1948 agreement requires the City to operate the airport “in perpetuity.” The case now languishes, on appeal from a procedural decision against the City, in the Ninth Circuit. But the 1948 agreement should not apply to a large parcel of land (known as the “Western Parcel”) that includes 2,000 feet of SMO’s 5,000-foot runway. If the City is not otherwise obligated (such as because of the grant assurances) to keep the airport operating, then regardless of the enforceability of the 1948 agreement the City should be able to close down the Western Parcel and reduce the runway to not more than 3,000 feet. In that event the largest private jets would not be able to use SMO.

(Important parenthetical: the FAA disputes this, and says that the 1948 agreement would be violated if the City terminated aviation on the Western Parcel. But if the FAA does bring an action against the City on this issue, it will be better to litigate first over the Western Parcel than over the airport as a whole.)

But why do I say that the actual decision in the grant assurances case is not important?

What is hamstringing the City from pulling the trigger on the Western Parcel is not whether the FAA might rule that the 2003 amendment extended the grant assurances to 2023, but rather the fact that the case is still pending. The City Council decided over a year ago that if the 2003 increase in the grant did extend the term of the grant assurances, then to resolve the matter the City would repay the FAA the $240,000. While the City has made strong arguments on both procedural and substantive grounds for why the FAA should dismiss the case, in practical terms the only issue is whether the City gets to keep the $240,000.

In a post two weeks ago, I wrote that the City need not make any strategic decisions regarding the airport until it receives the FAA’s decision in the grant assurances case. True enough, but the Lieu/Bass letter focuses the mind. Why? It’s one thing for the City to be patiently waiting for the FAA to announce a decision in the case, but it’s quite another when two members of Congress call the FAA out on their delay.

The FAA’s decision should come soon, but no matter what the decision is, the City’s strategy should be the same: announce a closing date, as soon as practicable, for all aviation operations on the Western Parcel.

Thanks for reading.

An emerging consensus on what to build in Santa Monica?

After six years of communal agonizing over the LUCE and then another five spent on a new zoning code to implement the LUCE, is there finally a working consensus on what projects can be built in Santa Monica?

Based on actions the Planning Commission took last week, the answer may be yes.

Could our long local nightmare be over?

As reported here and here and here, the Planning Commission last week approved two mixed use (retail on the ground floor, housing on the floors above) projects downtown that would together add 163 needed apartments to Santa Monica’s inventory of housing. These are the first significant projects to come before the commission under the LUCE and since approval of the zoning ordinance, and since two new commissioners took office who were recently appointed by the slow(er) growth City Council majority.

One project, on the block of Fifth Street between Santa Monica Boulevard and Broadway, is about 52,500 square feet of development on a double lot (i.e., on 15,000 square feet of land). The other, on the northwest corner of Lincoln and Colorado, is about twice the size, 102,500 square feet, but sits on five lots (37,500 square feet of land). The Fifth Street project has a height of 84 feet, the Lincoln Boulevard project would go up to 60 feet. Both projects require development agreements, and thus final approval will rest with City Council.

Fifth Street project; digital rendering by Michael Folonis, Architect

Fifth Street project; digital rendering by Michael Folonis, Architect

The Planning Commission voted 4-1 to forward the Fifth Street project to City Council (two of the seven commissioners were absent). The no vote came from new member Mario Fonda-Bonardi. His no, however, was a vote on principle against the 84-foot height (he wanted it reduced 10 feet), and otherwise he didn’t have big problems with the project. The vote for the Lincoln Boulevard project was a unanimous 5-0.

It’s significant that the majorities in favor of both projects included commissioners Richard McKinnon and new commissioner Nina Fresco, and the Lincoln Boulevard project received Fonda-Bonardi’s support as well. (Fresco and Fonda-Bonardi were both attending their first commission meetings.) McKinnon is generally identified with the slower-growth side in local politics. The development politics of Fresco are not well known, but the self-described slow-growth majority on the council appointed her to the commission. Fonda-Bonardi is strongly identified with anti-development views because of his being part of the S.M.a.r.t. group that writes for the Daily Press (even though, in a column he wrote, he advocated for the same rate of housing construction forecast in the LUCE, about 250 units a year).

Lincoln/Colorado Project; digital rendering by Killefer/Flammang Architects

Lincoln/Colorado Project; digital rendering by Killefer/Flammang Architects

The votes made it clear that at least certain kinds of projects are going to have support from a broad spectrum of Santa Monica politics. It’s worth looking at what the two projects had in common, beyond the fact that under their development agreements, the developer (NMS in both cases) had agreed to substantial community benefit packages and affordable housing.

Both projects:

  • Are located downtown, i.e., convenient to transit, and are otherwise designed to reduce environmental impacts, with LEED-platinum certifications, solar panels, and mechanisms for reducing water and energy use. Both projects would replace low-slung, suburban-style commercial buildings and surface parking primarily with housing. All the current council members, even those who identify themselves as “slow-growth,” recognize the need to build housing, given the region-wide shortage and market demand that’s pushing rents and housing prices to record highs.
  • Are characterized by good, contemporary design that maximizes public space and avoids “boxiness.” The Fifth Street project, designed by local architect Michael Folonis, creatively re-considered the use of setbacks, and instead of wasting them in a wedding cake design that would leave a monolithic street frontage, used the required cubic feet of the setbacks to widen the sidewalk in the front of the building into a mini-piazza and to create a “donut hole” in the middle of the building that will better open the façade to the street. The Lincoln Boulevard project, designed by local architects Killefer-Flammang, will create a similarly widened sidewalk/plaza area at the important corner of Lincoln and Colorado and a paseo coming off Lincoln.
  • Adhere to the City’s new standards for unit mix, to encourage more two and three bedroom units. Also, by breaking up the buildings with ground and upper floor open space, the architects have been able to give the apartments more light and air. The amount of development in both projects also reflects de facto downzoning downtown, since under the pre-LUCE development standards residential square footage was discounted 50% when determining the amount of development allowed. Perhaps ironically it’s the regional and local housing shortage and the resulting high rents that enable these projects, with their community benefits and reduced size.

Projects like these two mark and are consistent with 60 years of changes that have made Santa Monica a “post-sprawl” city. While there will be battles to come over big projects, while one wonders what’s going to be built on the boulevards, and while Residocracy may float an initiative that would ban nearly all development, nonetheless there are encouraging signs of an emerging consensus on what will work for Santa Monica’s future.

Thanks for reading.

SMO leases: City Council steps off the track to let the train pass by

Sometimes government—not unlike other aspects of life—can be simpler than expected, and anticlimax rules the day. Whimper rather than bang. This was the case with the City Council’s vote last week on leases at Santa Monica Airport (SMO). I wrote about the issue last week, trying to analyze as many angles about a complex question as I could in one column. In retrospect, overdid it. When the leases finally came before council Tuesday night, the council, after hearing a complicated staff report and about 75 speakers, quickly came to a unanimous and sensible decision that appears to have sidestepped controversy.

As has been reported, City Council approved three-year leases for restaurants and a theater, but deferred action on four leases to aviation businesses. What the council notably didn’t do was step into the controversial issue of whether the City is required to maintain aviation businesses while the City’s litigation with the FAA is pending. Instead, council asked staff to hold off on the proposed aviation leases because they all allowed for subleasing, which the council had told staff in March that it didn’t want. The council also directed staff to investigate further what are the appropriate market rates rents.

The decision reminded me of the old t’ai chi strategy about how to avoid being killed if you’re standing on railroad tracks and a train is roaring towards you—namely, step off the tracks.

Stepping off the tracks was not the advice City Council was getting from some anti-airport activists. For months, going back to before the council authorized staff in March to negotiate three-year leases for both aviation and non-aviation uses on some airport land, there’s been a steady drumbeat demanding that the City confront the FAA and the aviation industry head on, by banning aviation businesses, no matter what the consequences—which are manifestly unpredictable—might be.

The demands have mostly taken the form of emails to councilmembers that are cc’d to activists, but Monday, the day before the hearing, the City received a formal “lawyer’s letter” from Jonathan Stein, of Sunset Park Anti-Airport, Inc., warning the councilmembers that if they approved leases with aviation businesses at the rates staff was recommending Stein would do what he could to have them personally prosecuted by the District Attorney for making “gifts of public funds.”

Stein’s group has been sending out mailers for months to residents of Sunset Park and Ocean Park more or less accusing Mayor Kevin McKeown and other council members and staff of conspiring with aviation interests to create a jetport at the airport. Readers may recall that Stein is the attorney who filed the ill-fated suit against the City and aviation lobbying groups in 2014 trying to invalidate the industry’s initiative to preserve the airport before it could be voted on. (The initiative, as Measure D, was, thankfully, overwhelming defeated in the November 2014 election.)

At the council meeting, cooler heads prevailed. Although initially Councilmember Sue Himmelrich made a motion not to give leases to aviation businesses, by the time council had approved its directions to staff to defer approval of the leases use (aviation or non-aviation) was not part of the council’s reasons. The primary reason, as Himmelrich confirmed to City Attorney Marsha Moutrie, was to get subleasing out of the leases. Subleasing is also an issue with non-aviation property at the airport.

So what happens next? City Manager Rick Cole made it clear that it’s going to take time for staff to answer the council’s questions about subleasing and rental rates. During that time the status quo will stay the same at the airport, with the notable change that the City is making considerable money as the direct lessor to some large business tenants at the airport that formerly paid rent to aviation businesses that had master leases, in effect subsidizing aviation operations. That money now goes to the City.

Don’t hold your breath, but by all rights the City should soon get an overdue answer from the FAA on whether the FAA agrees with aviation businesses that the City is required to keep the airport open until 2023 because of federal money the City spent on the airport. There is no reason to make any strategic decisions about the airport until the City receives that decision.

Anecdote department: A week ago Sunday I flew back from my vacation in Italy. At one point in the long flight, while I was hanging around in the back of the plane, I got to talking with a young man who it turned out had moved to Santa Monica a few years ago. One thing led to another, and our discussion turned to local politics. He said he hadn’t paid much attention to last year’s election (let’s put it this way, he didn’t recall that I’d been a candidate), except that he and his wife had made sure to vote to turn the airport into a park. (They have a new baby and they were looking ahead.)

Listening to us talk was another passenger, and at a certain point he asked us if we thought Santa Monica Airport would close. I said yes, ultimately. He nodded, and said that he owned property near Van Nuys Airport, and that recently there had been a lot more interest in properties around that airport . . . from aviation businesses at Santa Monica Airport that were expecting it to close, and were looking for places to move to.

Thanks for reading.

Rights and Remedies at Santa Monica Airport

Time, tide and vacation wait for no man, and as it happened I was traveling the past two weeks when there was big news about Santa Monica Airport. Regrettably I missed “Start the Park,” the celebratory barbecue that the Santa Monica Airport2Park Foundation threw July 1 to note the termination of the 1984 Settlement Agreement and the immediate prospects of turning twelve acres of asphalt used for airplane tie-downs into parkland.

Mayor Kevin McKeown at the "Start the Park" barbecue

Mayor Kevin McKeown at the “Start the Park” barbecue

Then there was a potentially significant meeting in Washington. Under the auspices of U.S. Reps Ted Lieu and Karen Bass, representatives from the Federal Aviation Administration (FAA) heard from Santa Monica officials and from members of the public about why Santa Monica needs to control the airport land it has owned for almost a century. Because the FAA had made it clear that their representatives would not comment on anything said at the meeting there could never be concessions from the FAA that some airport-impacted residents originally hoped for or even expected, but the meeting might still lead to changes from the agency.

When Bobby Shriver was a member of the City Council he expressed the view that the path to solving the airport problem would run through the political process in Washington if and when local congressional representatives got involved. For decades our congressman, Henry Waxman, took a hands-off approach to the airport; the activism of Lieu and Bass is a notable change. It might not be the only factor that ultimately allows the City to close the airport, but at least in the short-term it appears that Lieu and Bass might at least be able to push the FAA to give the City a quicker FAA ruling on whether the City must operate the airport until 2023 to satisfy so-called “grant assurances.”

But whatever politicians outside Santa Monica do or don’t do about the airport, the biggest issues always end up before the City Council. Tonight the council will have more tough decisions to make, in particular whether to grant three-year leases to aviation businesses. This issue was controversial in March, when the council voted to allow three-year leases on part of the airport provided that the leases included clauses that allowed the City to terminate if the City gained control of the land.

The issue is even more charged now. In March opponents of the three-year leases wanted leases to be given on a month-to-month basis; now many opponents want to go further, and evict all aviation businesses from the airport. They argue that now that the 1984 Agreement has expired, the City has the right to close the airport, and further that even if the City can’t do that during the pendency of current litigation, the City can get rid of any businesses that support aviation and still not be in violation of any obligations to the FAA.

It’s hard to argue with this reasoning, because the substance of the argument is correct. The City, if you look at the documents and the history, acquired, as of July 1, the right to close the airport. In fact, the City based its 2013 lawsuit against the FAA on that right. The FAA must know that it has a terrible case—in 2000 it issued a ruling that after July 1, 2015, the future of the airport would be a “local land use matter.” The agency has in recent years repudiated that decision, declaring that under a 1948 agreement the City must operate the airport in perpetuity, but there’s a reason the FAA has been trying to keep the issue out of federal court.

There’s an adage in law that there’s no right without a remedy, meaning that if you can’t enforce a right, you may as well not have it, and at the moment the City has no remedy to enforce its rights. With litigation and administrative proceedings pending, the City is vulnerable. Based on recent history, it’s reasonable to fear (as the City Attorney does) that if the City made it practically impossible or even difficult to use the airport the FAA would come down on the City like a ton of bricks, those bricks taking the form of an injunction that could freeze the status quo at the airport for years and years.

There may come a day (for instance, if the Ninth Circuit rules that Santa Monica doesn’t have legal standing to get a declaration of its rights in federal court) when the City’s only means of getting a judicial validation of its rights will be to close the airport, but until then the City’s best strategy is a patient one—continue the litigation in federal court to get a declaration of its rights, meanwhile do what it can to reduce the impact of airport operations.

We’ve been through this before. In 2008, after years of trying to deal with the FAA about safety issues associated with large jets, the City banned them from the airport. The FAA immediately struck back and got an injunction. The City’s cause was noble, but the City lost, as the courts affirmed an FAA administrative ruling that the big jet ban violated the City’s grant assurances. In retrospect the ban was a mistake. The case cost the City a lot in money and credibility, and made the City Council and City staff gun-shy. Not only that, but it was during the course of these proceedings that the FAA repudiated its 2000 ruling that after July 1, 2015 the future of the airport would be a local land use matter.

As for the business terms of the leases, I’m no expert in leasing rates or appraisals. It’s troublesome, however, that staff did not find a way to open the bidding process to non-aviation businesses for properties being used now for aviation purposes. This likely would have increased rents—under the proposed leases aviation tenants will be paying less per square foot than office tenants would pay. It does seem, however, that the City is again handcuffed because of the need, out of fear of FAA action, to keep some airport businesses operating while the litigation proceeds.

It’s hard to be patient, but ultimately, I hope in just a few years, the City is going to get control over the airport land. At that point the City will convene a public process not only to design a great park there, but also to determine the future of the aviation buildings.

Thanks for reading.