From individual in West Adams Avenues Association
This is an opinion piece written in response to Dianne Lawrence’s article in the most recent online edition of the Neighborhood News, “Do Wesson's Old School Politics Work For Council District 10?”, in particular to the section discussing Save Our Future at the McCarty Church property on Adams Boulevard.
Dianne Lawrence is entitled to her views, but she should not be publishing fact-free allegations and innuendo of this kind. We refer to her claim that Herb Wesson “allowed the Save Our Future and Youth Build charter school to be shut down”, although the City’s “Building and Permit office” had ruled that the program “complied with the Church’s Certificate of Occupancy” (CofO), and was “exempt from procuring a new conditional use permit”. Nevertheless, she claims, the CD 10 “forced the issue of a conditional use permit”. “Forced the issue” is presumably intended to suggest that Herb Wesson applied pressure on City officials to do something other than what the City’s codes require. What is implied, moreover, is that the CD 10 also somehow secured the intervention of the City Attorney’s office to get the school to go, and that these actions deprived the district of a “worthwhile and successful program”. The CD 10 did this, apparently, because of a “few complaining neighbors”, and the CD 10 therefore chose to support the interests of this small minority. A serious set of allegations, if true, implying, without saying this in so many words, that the Councilman took some action to defeat the true requirements of the zoning code, to the detriment of the neighborhood as a whole. This, so it seems to us, is what she intended to suggest. So, let’s see how this relates to the facts. Let’s start with the City’s “Building and Permit office”. This sounds important, as though it might even exist, and might actually be the department responsible for validating building permits, and making determinations about the uses that they allow. The City, however, does not have a “Building and Permit office”. When there is a possible code violation, the initial use determination must come from the Code Enforcement Section of the Department of Building and Safety, and what it had to say about the McCarty property issue is freely available in the public record, in the form of Order To Comply number A-2375633, dated November 10th, 2009. This Order is the only official and relevant statement from Code Enforcement on the matter. What the Order says is that the use and occupancy of the McCarty premises were changed to a charter school without the required CofO, and that the operator and property owner were therefore in violation of sections 91.8203 and 91.103.1 and 12.21.A.1(a) of the LA Municipal Code. Since Dianne Lawrence makes no reference to this Order or to the violations it lists, we are left wondering if she knows that it was issued, or who issued it, or what the listed violations mean. Her article gives no indication that she does. The listed sections of the Municipal Code all state that new permits and CofOs are required, if there is a change to a use or occupancy. The first two (the 91.*) sections refer to building code violations. These sections are in the code to ensure that uses are not changed without compliance with all applicable life-safety standards, which standards are the main reason for having a building code in the first place. The minimum standards in any specific case are derived from the State code, which defines if and how old buildings must be upgraded, when a structure or use or occupancy is changed. Since Southern California is a dangerous earthquake zone, it is entirely appropriate that safety upgrades should be generally necessary, when the original permit conditions change, and this is never more so than when the users are school children. The school at the McCarty property was operating in a 60 year old, three story, Type V building. Current code does not permit a school to operate at all in a building of this kind. An application for a permit and CofO to change the use of this building to a school would almost certainly have resulted in a request from the LA Department of Building and Safety to produce engineering studies to demonstrate safety, or engineering proposals to remedy unsafe conditions. An operator of a school who must make an application, but fails to do so, makes it impossible for the City to carry out its obligation to ensure that the applicable safety standards had been met, before a new use begins to operate. The protection of public safety is the principal reason why new uses must have new CofOs, and the primary purpose of a CofO is to certify that the applicable safety standards have been met. For obvious reasons, the operator of a use never gets to decide without official review whether its premises are safe or not. Even if it turns out that they are safe, this is for the City to say, not the operator of the use. And the City is robbed of the chance to say this, unless there is an application. Dianne Lawrence seems completely oblivious to the fact that critical life safety issues are involved in use-change cases, not just the question of a conditional use permit. The third clause listed in the Order refers to a violation of the City’s zoning code (12.*). This clause exists to ensure that uses are operated only in zones where the zoning code says that they are allowed to be, and that, if changed, there is compliance with zoning code requirements for the new use, such as the provision of adequate parking. The City of LA cannot allow a use to operate in a zone where it not permitted to be by right, unless a conditional use permit has been issued. Whereas the big issue with the building code sections listed in the Order is public safety, the big issue with the zoning code section listed is due process. If a use is not permitted by right in the zone – and schools are not permitted by right in the R3 zone, where the McCarty property is located – then the City must follow the due process requirements pertaining to the approval of conditional uses. This has been established by the 9th Circuit Court, in City of Los Angeles Etz vs League of Neighborhood Advocates, which case the City lost, because it failed to provide a neighborhood with the due process that its zoning code mandates. Before a conditional use can be allowed to operate, there must be advance notification to the neighborhood; there must be a public hearing; the Department of City Planning must make certain findings; where there are possible negative impacts, it must impose conditions to mitigate them; and there must be the opportunity for all parties, including local residents, to appeal to the City Planning Commission. If a use has been changed illegally, therefore, the City is obliged to act, both to ensure the safety of the public, and to provide due process, when it is due. Action is not optional. The clarity of the Order To Comply notwithstanding, Dianne Lawrence might nevertheless think that it remains an open question as to whether the use was indeed changed in this case. After all, so she says, the phantom “Building and Permits office” concluded that “the program complied with the Church’s CofO”. The program at issue was a charter school. Charter schools are regulated by the California Education Code. If Dianne Lawrence had asked an authority responsible for overseeing charter schools in LA what is required when a charter school is opened – such as the Los Angeles Unified School District, or the Los Angeles County Office Of Education - she would have found out that a charter school requires a CofO saying “charter school”. Not even “school” is good enough. She would have discovered that anyone who wants to open a charter school must obtain this CofO before the school begins to operate. If she had looked through the permits for the McCarty property, she would have seen that there is no CofO that says “charter school”. She would, moreover, have seen that there is not even a CofO for any school on the property, other than a pre-school. The CofO covering the part of the building where the school was located was issued for a “youth center”, after a permit application made by the Church in 1949. Assuming that Dianne Lawrence still felt that there were legitimate grounds for doubt as to exactly what this CofO allowed, she could have approached the LA Department of City Planning, which is the LA City department primarily responsible for making use determinations. She would then have been told, this time from the perspective of the LA zoning code, that not only can a charter school not operate on the McCarty property under a CofO saying “youth center”, but that it cannot operate without a new conditional use permit, even if the Church had obtained a CofO that said “school”. She would have been told that because the McCarty Church and its customarily incidental uses are on a lot that is conditionally approved for religious use, a permit and CofO issued to the Church for any conditional use allows only the Church to operate that use, and no-one else. Conditional use rights vested in the Church cannot be transferred to outside organizations, such as Youth Build Charter, or affiliated organizations, such as Save Our Future, or to anyone from whom the Church derives rental income, such as, so we believe, both of the above. To demonstrate the basis of all this in the actual text of the City’s zoning laws, City Planning might well have referred Dianne Lawrence to page six of the City’s Zoning Manual – which is readily available online for download - or to the Zoning Administrator’s ruling to which the manual refers. These spell out in simple English that only a Church itself can operate a conditional use on a property that is conditionally approved for religious use, unless a new conditional use permit is obtained. They define precisely what the term “Church itself” means. What it means is that the use cannot be operated by outside or affiliated organizations, and that the Church must operate the use as an accessory function to the main use of the property for religious purposes, and that it must provide the funding itself, employ the staff itself, and supervise the use itself. A school operated as a conditional use on such properties, must be, and must remain, a parochial school, or else new permits are required. By definition, no charter school in the State of California can be a parochial school. This is because a publicly funded school cannot be a religious school without violating both the State and the Federal constitutions. Finally, before a Church can utilize the special dispensation available for its own customarily incidental uses, all of the required permits must have been obtained. For a school, this is a permit application and CofO that says “school”. If she deemed this still insufficient, as one final act of fact-checking before publishing her allegations and innuendo, Dianne Lawrence could also have consulted the City’s charter school experts in the Case Management Section of Building and Safety, which helps prospective charter school operators to identify the applicable code requirements and obtain the necessary permits. If she had asked about the McCarty property, she might have discovered that in 2007, several years before the Order To Comply was issued, Save Our Future had been told that a charter school could not be operated on the McCarty property without a new conditional use permit. This being the case, perhaps she might then have been given cause to wonder why Save Our Future did not make the required application. Dianne Lawrence, it seems, did nothing to establish what was actually the case, but just settled comfortably and uncritically into the conclusion that the non-existent “Building and Permit office” had correctly identified what was the case, and that by somehow over-ruling this ghostly entity – which, one assumes, like other denizens of the spirit world, has left no material trace of its views that she can produce - Herb Wesson had improperly intervened to make the path to legality for Save Our Future and its associates more onerous than the code really required, in order to favor the interests of a small minority. She concluded this, although a few hours of investigation would have been enough to show that the Order To Comply was issued by the appropriate City agency; that it reflects what every City department responsible for use determinations has to say about the applicable code, including the City’s charter school specialists; that it reflects what is set out in the actual texts of the City’s codes and supporting documents; that it reflects the State of California’s requirements for what must be the case before a charter school can be opened; that the parties cited in the Order could have appealed, if they felt that the Order was incorrect or unfair, but elected not to do so; that the case was referred to the Building and Safety Commission, which had the opportunity to review the Order, and explain it to the parties in violation; and that the Order’s proper legal basis in the City’s codes was independently verified by the City Attorney’s Office, as it is required to verify the legality of any Order, before contemplating legal action. With regard to this last point, the very able neighborhood prosecutor whose name was misspelled and whose integrity was implicitly questioned by Dianne Lawrence because she informed the school operator of the legal consequences of failure to comply with the Order, did no more than exactly what her job requires, which is to take appropriate action to ensure that the requirements set out in Orders from the Code Enforcement section of Building and Safety are followed. The legal requirement here is very simple: correct the violations, or go. In fact, the truth of all of this is the exact opposite of what Dianne Lawrence seems to think. She implies that Herb Wesson intervened to secure an adverse outcome for Save Our Future, one that is not based on the applicable code. The record, however, is clear that the decision regarding the legality of the school was made not by Herb Wesson or his staff, but by the appropriate City agency, and was set out in the usual way in an Order To Comply that stated the violations clearly, and reflected exactly what the codes require. Dianne Lawrence, clearly, would have preferred an outcome more congenial to her own preferences, and seems to think that Herb Wesson “forced the issue” in a direction not really required by the codes. But the irony here is that Herb Wesson forced nothing, the appropriate City agencies made appropriate decisions on the basis of the City’s codes, but if Herb Wesson had actually done what Dianne Lawrence seems to expect, his intervention would then have prevented the codes from being applied correctly by the officials and agencies whose job it is to apply them. This would have been an illegal attempt to subvert State laws, at the potential expense of the safety of children, and the obligations of the City to follow due process. Arbitrary political decisions to waive code requirements should not, and cannot, be made by a Councilman, or anyone else, not even a Congresswoman. The fact is that there is no “Dianne Lawrence exception” to be found anywhere in the codes, saying that if Dianne Lawrence thinks that a pet program of hers is “worthwhile”, then all code requirements can summarily be suspended. Whether Save Our Future is or is not a worthwhile organization is debatable, but irrelevant. Institutional worth, or the lack thereof, is not an issue for Code Enforcement to consider. Only code requirements are relevant. It is bizarre to suggest – as is implied by Dianne Lawrence’s assertion that all of this arose because “a few neighbors” complained - that whether building and zoning codes should be enforced or not should be a matter to be decided by popular vote. If a violation exists, as it existed in this case, then a single phone call pointing it out is sufficient cause for an Order To Comply. One complaint, or one million complaints, it makes no difference whatsoever. Finally, and not insignificantly, Dianne Lawrence fails to mention that this is not the first time that a charter school with which Save Our Future was involved was issued with an Order to Comply for operating without the necessary permit and CofO (Order To Comply number A-971777 of June 30th 2005, applicable to premises previously occupied by Save Our Future at 3801 South Broadway). As they say, déjà vu all over again. It is not convincing to portray Save Our Future as the innocent victim of some supposed act of official malfeasance. If you purport to be a journalist, and you write for something with the word “news” in the title, then it is irresponsible to cast aspersions, without doing the basic fact checking that is fundamental to the practice of journalism. Dianne Lawrence seems to think that it is acceptable to attack Herb Wesson, and by implication to malign the City’s officials, for supposed actions that have no basis in fact. If she has any interest in honest journalism, then Dianne Lawrence will retract these allegations, and immediately apologize to Herb Wesson and to the City’s officials, who, her innuendo suggests, were part of some unsavory scheme, although what they did was what their job description requires.