Land-Use Law; As She Is Practiced in California

Herewith, an exchange between California practitioners, that is too good not to share. The underlying basic subject started as a discussion of land-use corruption in Florida (which is sort of an industry over there). The participants were land-use lawyers from all over the country, discussing stuff for an upcoming CLE program, when one of the folks involved, Robert I. McMurry who practices in Santa Monica, an experienced, first-rate land-use lawyer who happens to be a former star student of your faithful servant, offered the following observation:

“Please understand that at least in California and I suspect in many of your jurisdictions this kind of ethics abuse is more endemic than exceptional. I have worked in all three jurisdictions – Bell, Vernon and Cudahy – which Michael and Gideon have kept you updated on for the past several years in our efforts to keep pace with Florida in the highly competitive Corruption Derby. In each case, while some of the specific allegation later made public were interesting news – resealing absentee ballots is a new low – I knew the level of corruption, the manner in which it was conducted, and in most cases who orchestrated it (since I met with many of them) and so did most people in the real estate business. In one city the planning commission occasionally held “rump sessions” (and yes the pun was multi-intentional) at the Spearmint Rhino, an adult sex club whose ads always featured full bodied and full lipped women, during which the serious business of exchanging favors/cash took place, followed by an adjournment to the actual city meeting at which the “deals “ were memorialized. It was no secret how land use permits were handled in that town but no one ever blew any whistles for decades. (Their justification for holding the meetings at the Rhino was that no one could ever provide the press or a court details about what got done there without admitting they had been at the Rhino at the time.)

“My point is that this stuff is commonplace and tolerated, if not accepted practice, in many cities in California. The “in people” know all about it and so does the press and the DAs and the key businessmen in town. And except in cases where somebody got hooked by accident and the press decided it was time run a scandal about local land use practices (Gideon and I triggered one that landed on the front page of the LA Times), nothing ever happened. And nothing ever will. It is the nature of local people running a process which generates a lot of potential value for people who will make sure it inures to their benefit. So let’s not pretend like Capt. Reynaud that we are shocked – shocked! – that there is gambling [going on in Rick’s saloon]. It is how business is done in many cases and in many jurisdictions. So let’s not kid ourselves by tut-tutting around articles about astounding local land use scandals. They are the tip of the iceberg and we all know it, and which part of the iceberg becomes the tip at any given point is largely random. (For example the city in which I got paid good money to attend sessions at the Rhino – my client knew very well what he was being billed for and where – and which has a level of corruption several times larger than Cudahy at least in terms of dollars, is still in full business and undisturbed by any but the occasional article about its land use practices. If you want to complain that I should have brought these corrupt practices to light you have a good point which we can debate in our ethics seminar – evil continues to exists when good people say nothing, yes? Not that I can qualify; I went on to represent the city instead.)”

To which we added our own response:

“I thought I should mention for the record that in the case Mac refers to (where the two of us worked together), to the best of my knowledge we were on the good guys’ side. The scandal consisted of an LA City councilwoman blowing her cool in a deposition and mouthing off graphically about improper conduct in conducting city affairs. This sort of thing can often happen during the deposition process, which if you click here, you can find out much more about. Sufficiently colorful to attract big-time attention of the local press, compleat with extensive quotations from the deposition. Fun was had. It cost her her seat in the next election. You can read all about it in McMurry & Kanner, Shootout at Warner Ridge, Los Angeles Lawyer, Jan. 1995, at 24. This was a cover story with a handsome picture of Mac (in an elegant double-breasted suit yet), as well as your faithful servant in his modest but tasteful professorial tweeds, and by today’s standards, in need of a haircut. If you’re interested, you may also want to see Warner Ridge Associates v. City of Los Angeles, 3 Cal.Rptr.2d 306 (1991) (ordered depublished by the California Supreme Court), affirming the trial court’s issuance of a writ of mandate. As for the inverse condemnation cause of action, the trial court granted summary judgment against the city, an event that precipitated prompt settlement.
“I am reliably informed that after years of litigation, a wasteful expenditure of gazillions of dollars, etc., the Warner Ridge property was eventually developed in a way the developer wanted it developed in the first place, which by an odd coincidence was as zoned when the whole kerfuffle started. Your tax money at work.

To which Mac added the following comment:

“All true, including Gideon’s haircut (his last haircut was for the Agins case in 1980; I again wore a tasteful suit). The developer (who went broke), the financing entity (which lost $40 million), and the city councilmember all bit the dust before it was all over, the City of LA had to revise its zoning code, and the project was sold to another developer who later hired [my firm] again and made a fortune on the last version of the project but then went broke financing Arnold Schwarzenegger movies.

“And that is what happens when you win a land use case [in la-la land].”

Welcome to la-la land , folks.

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