After spending six months studying a major zoning proposal, the Planning Commission discovered this week that it cannot vote without risking a violation of conflict-of-interest law because four of its five members own property in or near the area.
At a meeting Monday, commissioners even resorted to drawing straws so only fate could be blamed for the composition of the voting quorum.
But three of the four members decided that even that failed to resolve the problem, and they refused to take a chance on being fined or sent to jail.
So the commission was forced to send the zoning proposal to the City Council without offering any recommendation.
“I’m sad because the City Council has not sat in on any of the hearings,” said Whittier Conservancy member Helen McKenna-Rahder. “I don’t think they have the knowledge or expertise the Planning Commission does. . . . You’re talking about five (council) people who wouldn’t know an environmental impact report if it bit them on the leg.”
Vote to Follow Hearing
The council will hold a public hearing and vote on the zoning proposal at its March 21 or April 11 meeting, City Manager Thomas G. Mauk said.
The proposal calls for changes that would limit apartment construction north of Hadley Street, an area that includes some of Whittier’s oldest residential neighborhoods. After the Oct. 1, 1987, earthquake, some property owners in the area sold their damaged houses to developers who replaced the structures with apartments.
The new apartments angered residents because the neighborhoods are designated as low- or medium-density under Whittier’s General Plan, the city’s overall blueprint for development. However, the zoning in some areas permits more apartments than called for in the General Plan.
Laura Hudson, an urban planning consultant hired by the city, prepared an environmental impact report on the issue and recommended that zoning limits be reduced to more closely adhere to the General Plan.
If her recommendation is adopted, another 1,200 apartments could be added to the area.
But developers want to build under the existing zoning, which would allow the construction of about 2,700 more apartments.
Ironically, it was preservationist McKenna-Rahder who raised the conflict-of-interest question that tied the hands of the Planning Commission, known for being somewhat tough on developers.
At a Planning Commission meeting last week, McKenna-Rahder questioned whether Commissioner Larry A. Haendiges could legally vote on a separate project because he owned property nearby. Haendiges subsequently abstained from voting on that issue.
“A Small Problem”
About 40 people showed up for Monday night’s Planning Commission meeting, at which a long-awaited vote was expected on the apartment-building controversy that has dominated City Hall since last summer.
But after the roll was called at the start of the meeting, Commission Chairman Francois Pellessier announced “a small problem.”
In the last week, Pellessier said, commission members had became aware of a state conflict-of-interest law provision that prohibits public officials from voting on a matter if they own property that is in the affected area or within 2,500 feet of the area. Under the state Political Reform Act, he continued, public officials who knowingly violate the provision can face a fine of up to $25,000 and 10 years in jail.
Pellessier disclosed that four of the five members had such conflicts because they owned property in or near the zoning proposal area. One commissioner owns investment property in the area, two others own houses in the area and the fourth owns a house nearby.
The only member without a conflict was Commissioner C.R. Rollins, Pellessier said.
Michael Wood, a city-hired attorney who advises the Planning Commission, said that in such instances, the Fair Political Practices Commission recommends attempting to gain a quorum by drawing straws. The rationale behind drawing straws is that it provides an impartial means of trying to achieve a quorum from among those with an acknowledged conflict of interest.
So the remaining four commissioners left their seats and gathered around Planning Director Elvin Porter, who hid two long straws and two short ones in his right hand. Those who selected the long straws--Pellessier and Commissioner Wes Murray--were then asked to return to their commission seats and vote despite their potential conflicts.
The Fair Political Practices Commission’s “arbitrary capriciousness is something I wish not to expose myself to,” Pellessier said. “I will not participate.”
Murray said, after speaking to Wood, that he believed there was “very little likelihood of the problem coming back and biting me. I will remain.”
But a third commissioner was required for a quorum, so Haendiges and Charles T. Henry drew again from two straws in Porter’s hand. Haendiges drew the long one and promptly disqualified himself.
“I think it’s a sad situation when we have to live in fear of our own government,” said Haendiges. “I would love to support my city but . . . I will choose not to stick around. I will decline.”
Henry, the only remaining commissioner, also declined to participate.
The zoning proposal now moves to the City Council, and City Manager Mauk said none of the council members have such a conflict of interest.
Sandra Michioku a spokeswoman for the FPPC, said public officials occasionally disqualify themselves if they own property near an individual project under consideration. Michioku said she did not know how many commissions or councils had been paralyzed by conflict of interest considerations because the FPPC analyzes such situations on a individual, not a group, basis.
However, in the case of zoning changes over a large area, Michioku said public officials have the option of voting under a provision known as the “public generally.”
“If the effect for the official would be the same as anyone else in the general population, then the official could vote,” she said. The population of the zoning study area is about 10,800, according to a city report, with about 75,000 people residing in the entire city of Whittier.
Attorney Wood said Wednesday that the “public generally” exception might not apply in this case because only 14% to 15% of the city’s population lives in the affected area. While the provision was successfully applied recently in Monterey Park, Wood said, that case affected 17% of that city’s population.
Wood said that is the lowest percentage that the FPPC has approved to date.
McKenna-Rahder said she never intended for all the Planning Commission members to disqualify themselves from voting on the zoning issue. She said she hopes the City Council will consider it as carefully as the commission has in the past few months.