ILLEGAL CONSTRUCTION

DOES CITY HALL CARE?

In less than a month, we will be deciding who will lead this city forward. I hope we will elect a slew of candidates who believe in the preservation and adaptive reuse of historic buildings. We need to elect candidates who will take action to help, rather than sit back and watch while our city continues to burn. Our city officials fail us when they refuse to lead and instead treat concerned citizens like their wait-staff.

The recent loss of the Hollywood Center Motel on Sunset Blvd due to “demolition by neglect” leads back to a council district office disengaged from the public. Every response by the Department of Building and Safety (LADBS), by the Air Quality Management District (SCAQMD), and by the Police (LAPD), was in reaction to public complaints. If not for the expanded news coverage drawing media attention, council district staff acted as if it were business as usual.

We also need to take a hard stance against illegal construction. A new tenant at the former Pig n’ Whistle Café on Hollywood Blvd wantonly destroyed historic building tile, gutted and white-washed the interior, and modified the historic frontage, all without permits. The response by LADBS inspectors was slow, allowing the illegal work to continue unabated. When stopped, the mitigation required by the Office of Historic Resource (OHR) was trivial.

In response to this event, I prepared a list of actions and measures that the city could take to deter illegal and unpermitted construction work, improve LADBS response to public complaints, and improve historic building resource oversight. My list was presented to the various officials in charge, and their response was the typical “thanks” followed by, I assume, placement in the round file.

So, I now offer these same actions and measures to the new candidates in hope that one of them will step up, take charge, and take action.

ILLEGAL & UNPERMITTED CONSTRUCTION WORK

Council File 17-0226, adopted 13 June 2018, directed City Planning to report on the differences between a remodel and a demolition project per current code, provide ways to improve notification requirements to neighbors, and identify all applicable building loopholes in the code that may negatively impact neighbors.

City Planning was also instructed to address the following Best Practices for Demolition:

a) timely and adequate notification to neighboring properties;
b) dust mitigation;
c) noise mitigation;
d) construction street parking; and
e) other impacts and complaints received by the City.

To date, no such plan or report has been prepared in compliance with Council directive. The LADBS submitted a report to the PLUM Committee in November 2020 that only addressed the current penalties imposed on unpermitted remodels, additions, and the demolition of historic buildings and structures. While the report proposed an increase in fines and penalties, the Council has taken no further action.

We need much stronger consequences for illegal construction work, regardless of the building’s historic status. Unpermitted work is illegal and should have serious consequences for both the project applicant who hires unlicensed contractors and for licensed contractors who work without permits.

Adopt Stronger Civil Penalties

The LADBS report (provide link) presents the then current fee structure for non-compliance and code violation inspections. Existing fees are inadequate in deterring illegal work because the fees only cover the recovery of LADBS costs. The city should impose major civil penalties so that no building owner or developer benefits from illegal construction or demolition.

Examples of civil penalties levied by other cities include:

• The City of San Antonio fine for unpermitted demolition is 90 percent of the fair market value of the cost of replacement or repair of such building, object, or structure.

• The City of New York Landmarks Preservation Law imposes a civil penalty for unpermitted demolition up to the fair market value of the improvement parcel, with or without improvement.

• The City of Ventura assesses a fine equivalent to the greater of a) the appraised value of the building before demolition minus the appraised value after demolition, or b) $10,000.

Pursue Non-Monetary Penalties

Per the LADBS report, the city can place a five-year moratorium on issuing permits for sites where demolition or relocation work has been done without permits. Moratoriums have been imposed in the past, primarily in situations involving the unpermitted demolition or alteration of historically significant buildings.

However, site-specific moratoriums against illegal construction tend to be ineffective; they do not present enough of a deterrent. An owner may gain financially due to the freeze on project spending while the value of the land continues to increase.

Additionally, in the case of a historic building, the illegal act may free up the land for a variety of unrestricted uses, making it more valuable. The moratorium does not stop the owner from doing this again elsewhere. And while the site sits vacant, it is the neighbors who suffer most.

Rather than a five-year moratorium on the site, LADBS should be authorized to prohibit the owner and contractor from filing any construction permit for projects within the city. Such restrictions are currently in place for companies who do business with the city and are found guilty of violating financial laws. The penalty for illegal work needs to be severe, or the practice will continue unabated.

Another potential non-monetary penalty is loss of the contractors’ license. The California Contractors State License Board (CSLB) places a very high priority on the enforcement of building permit violations. Contractors who violate the law are subject to disciplinary action, the assessment of civil penalties of up to $5,000 per violation, an order of correction to pay permit fees and any assessed penalty imposed by the local building department, and suspension or revocation of their license.

Based on my contact with LADBS, they are not aware of any permit violation or discovery of unlicensed work that results in CSLB notification. LADBS only tracks how many referrals they make to an outside agency in response to a public complaint. They do not initiate outside contact in response to a site investigation.

CSLB notification should be automatic since unpermitted and/or unlicensed work is a crime. LADBS bears responsibility in this matter since they are the inspection arm of City Planning. LADBS inspectors have the information needed to file a complaint, but the information remains internal. The act of notification places no additional burden on LADBS since any follow-up is the responsibility of CSLB.

LADBS FAILURE TO RESPOND

The listing of incorrect addresses in permit files has been an ongoing issue for many years. The project site address used by City Planning and LADBS can differ, leading to confusion and slow response. Complaints regarding illegal construction at the Pig ‘n Whistle Café were initially ignored because the LADBS assumed that the work was part of the Egyptian Theater project.

Compounding the issue, City Planning relies upon their official web-based mapping tool ZIMAS (Zone Information and Map Access System) for accessing official property data, zoning designations, and planning documents. However, address data provided by ZIMAS is not official. To obtain official address data, you need to access the web-based mapping tool NavigateLA maintained by the Bureau of Engineering.

Because the internal department systems, processes, and procedures with City Planning and LADBS are so opaque, one cannot offer solutions but only point out the problems. City Council should instruct City Planning and LADBS to conduct a review as to how these problems can be avoided in the future.

INADEQUATE OHR REVIEW AND OVERSIGHT

Most residential projects are ruled by City Planning to be exempt from the California Environmental Quality Act (CEQA). The exemption from CEQA eliminates the public review of project documents. A CEQA exemption cannot be applied to a project that impacts a designated historic resource.

For a project that impacts a historic building, the Office of Historic Resources (OHR) requires the applicant to submit an historic assessment report. The report must be prepared under the direction of a qualified individual. While the applicant pays for the report, the contracted person or company serves OHR who is the actual client and is there to represent the public interest.

All too often, OHR fails to acknowledge their role as client and representative. The submitted report is accepted at face value with little or no comment. With the Pig n’ Whistle case, in response to illegal work, two historic assessment reports were prepared. The second report was requested by OHR because they were not satisfied with the grammar of the first report. All of the OHR comments focused on form rather than substance.

OHR overlooked the fact that neither report complied with the scope of work. The scope of work is part of the legal contract that specifies what the consultant must provide in order to complete the project and be paid. In ignoring the scope of work, neither report addressed the full extent of illegal work that occurred within the building.

Worse, the reports contained factual errors as to site history and to renovations, both legal and illegal. Some of the illegal work was clearly shown in the photos but not called out as such. Rather than require the consultant to comply with the scope of work and correct the errors, OHR signed off on the second report as final. OHR then issued to the building owner a token list of mitigation measures.

Another example of inadequate review by OHR is from the Sears Building on Santa Monica Blvd. The historic assessment report conducted a drive-by windshield survey and found the building to not warrant preservation. The report did not reference a prior report from 2006 that found a windshield survey to be inadequate because character-defining features could be present under the modern façade. OHR approved the report, approved demolition, and guess what was found when the facade was removed?

None of this is to say that the professional historian must accept the findings of a prior report unconditionally, but there is a professional obligation to present as complete and factual an assessment as possible. If two or more reports conflict, the approach taken should be to clearly call out the conflict and provide a solid basis in support of one’s findings. In hiding the conflict, what should be an unbiased assessment becomes a political tool.

To better serve OHR and the public, the historic assessment review process needs to be more transparent. Potential improvements include:

• OHR should create a detailed checklist for use in conducting their review of the historic assessment report. The report should include:

  • A clear and detailed timeline of the site history based on permit review with all gaps in building history clearly noted.

  • A report on the steps taken to fill in all identified gaps.

  • A review of prior reports and studies to determine how their findings either support or conflict with new information and research.

  • The method of site investigation employed.

  • The adequacy of response to comments (final report).

• All OHR comments should be submitted to the consultant in writing, with all comments addressed in the final report, or as an addendum to the draft report. The three documents (draft report, comments, and final report or addendum to draft) must be part of the Council file subject to public discovery.

• Any interim meeting(s) with the project applicant and the historian to discuss the report must be documented and made part of the Council file.

• Since OHR has limited staff, the creation of an independent peer review panel should be considered. OHR should reach out to the neighborhood councils and preservation groups within the city for their professional expertise.

• As the city maintains a list of qualified consultants for performing historic assessments, the city needs to adopt measures to ensure that the list undergoes periodic review. Clear and well-defined measures should be included to address the grounds for delisting a consultant.

IN CLOSING

I see the problems created by demolition by neglect and by illegal construction to be two sides of the same coin. The city fails the public when it passes a law but then takes no action to enforce the law. City Planning fails the public when they complain about their limited resources but take no action to utilize resources outside the department. Both of these issues are readily addressable, but only if we elect leaders who care about these matters.