What I Say

Who's Jerking Whom

"Holiness is what all the gods love, and its opposite is what all the gods all hate, unholiness." -- Euthyphro, 399 BCE, from Plato, Euthyphro 9(e).

"L'etat c'est moi." -- Louis XIV, 1651.

"If this Commission deems it appropriate, then it will be appropriate." -- Planning Commissioner Kelly Olsen, in response to Planning Director Suzanne Frick's comment at the March 5, 2003 Planning Commission meeting that there are many ways of enhancing the pedestrian experience, and that sometimes landscaping is not appropriate.

By Frank Gruber

At its meeting March 5, the Planning Commission reviewed the City's application to build a parking structure behind the courthouse. The structure is a key element of the Civic Center redevelopment plan.

The commission spent about four hours on the project. The only members of the public who spoke both represented the Doubletree Hotel, which has concerns about views and shadows.

In the end, the commissioners (there were five present) liked the project but had a few issues. They wanted the City to add a "compelling gateway effect" at Civic Center Drive, "reduce the massing" (i.e., the size) of the top floor, add landscaping in front of the retail spaces planned for the project's Fourth Street frontage (the issue about which Kelly Olsen believed the commission had particular authority), and relocate solar panels on the roof.

The commissioners wanted the City to agree to a continuance and return at a future date to respond to their requests.

Assistant City Manager Gordon Anderson, representing the City, would not agree to the continuance. He wanted a decision which, of course, staff could appeal to the City Council. (Several private developers have taken the same approach recently, deciding that it was better to lose quickly at the Planning Commission and appeal to the City Council, than to engage the commission in a protracted process of serial continuances that might still result in a denial.)

The commissioners then agreed to approve the project, but they wanted to add to the approval a request to the Architectural Review Board that the ARB pay special attention to the issues the commission had raised -- the gateway effect, the landscaping, etc., when the project came before the ARB.

The commission characterized these issues as aesthetic and within the purview of the ARB; decisions of the ARB are appealable to the Planning Commission, not to City Council, and once a project is in the design review process, the Planning Commission does not have City Council looking over its shoulder.

Olsen asked Anderson if the City would even appeal, "straight to City Council," an approval if the approval included the request to the ARB.

Anderson answered that yes, due to the importance of the project to the City Council, staff "would probably want the council to consider what [the commission's] actions are tonight and how we might respond to [them]."

In fact, when Olsen quizzed him further, Anderson said that staff would have an "obligation to go back to council."

Olsen threw up his hands.

Commissioner Jay Johnson, hotly interrupting Darrell Clarke, the Commission's courtly Chairman, was "upset."

Johnson told Anderson that for "you folks" to say that they were "arbitrarily" going to go to the City Council was an "insult" to the Commission, that he "resented" it, that the City was acting in "very bad faith," and that the City should accept the "nickel and dime things" the commission wanted and take the project straight to the ARB without "jerking us all around."

Unfortunately, because they paid more attention to Olsen's leading questions than to Anderson's considered responses, the commissioners misunderstood what Anderson said.

When Anderson speaks for the City, he is not the client. The City Council is. As staff members, Anderson and his colleagues have no authority to agree to changes such as adding a "gateway" element, or reducing the project's size, especially for a project that has been of such keen interest to the council.

The ARB may require aesthetic changes to the plan, including those suggested by the Planning Commission. However, if Anderson were not to go back to the council to get the council's response to the Planning Commission's ideas -- a response that may well be positive -- the council (again, the client) would have no opportunity to make its views known, inasmuch as the Planning Commission is the final stop for ARB appeals.

That's why Anderson had an "obligation to go back to the council." He didn't "jerk [the Commission] all around" -- on behalf of the City, he spent four desultory hours on a Wednesday night to hear the Commission's views, to which, assuming the City does appeal, the City Council will no doubt accord great deference.

After all, if the Planning Commission deems something appropriate, then it will be appropriate.

A check with the Planning Department on Thursday, March 13, revealed that staff had not yet decided to appeal the Planning Commission's decision.

Perhaps staff will not do so, in deference to the commissioners' thin skins, but they should, for another reason in addition to protecting the City Council's role in designing the parking structure.

The other reason is that the Planning Commission made a mess of certifying the EIR, a mess the City Council will have to clean up.

For some time the commissioners have been challenging the traffic data underlying the City's EIRs. They prefer anecdotal evidence and their subjective perceptions to the City's periodic traffic counts, or they consider counts even just a few years old to be out of date, because they don't confirm their a priori assumptions that traffic is getting worse geometrically.

The commissioners, as usual, railed against the EIR for the parking structure and staff for bringing it to them. Barry Rosenbaum, the lawyer from the City Attorney's office who attends all Planning Commission meetings, repeatedly asked the commissioners to hear from staff and the City's traffic consultants as to why the data were good, but the commissioners were not interested in hearing anything that might create cognitive dissonance -- in Chairman Clarke's words, they didn't want to "beat that dead horse."

However, the commissioners faced a quandary. If they did not certify the EIR, they would have no further input into the development review issues, because certifying the EIR has to come first. So, cynically, four of the five commissioners voted to certify the EIR anyway -- in an aside, Kelly Olsen said he voted yes with his "fingers crossed," and Arlene Hopkins changed her vote from no to yes with no explanation beyond a coy smile.

The problem is that the record is now terrible on the EIR. If the Doubletree Hotel, which based its complaints about the structure on alleged defects in the EIR, challenges the parking structure on environmental grounds, all it has to do is show the tape of the hearing to a judge.

So my guess is that the City Council will have to hear the whole thing no matter what.

Who's jerking whom?

***

Barring another exciting Planning Commission meeting, or war in Iraq, my second column on Lantana will appear next week.