Curb the appeal

Let’s say you’re Viva Padilla, a civic-minded Chicana living in Boyle Heights, and you find out that the acclaimed bookstore/cultural center you founded is set to be torn down to make way for a six-story apartment building. You think this proposal is “monstrous” and connected to the long struggle against gentrification in Boyle Heights. You decide to fight. You organize your fellow tenants. You get the local Neighborhood Council to oppose the building. Your city councilmember comes out against it. With all this momentum, you personally write a 50 page appeal letter to the Planning Dept. presenting a wide range of arguments against the project.

The Planning Dept. finds your appeal unpersuasive. Staff recommend that it be denied and prepare a presentation rebutting every argument point by point. Meanwhile, the developer reworks the design to stand out a little less.

But that’s not the end. The final decision on your appeal rests with the East LA Area Planning Commission. At a nearly five hour long meeting in March 2024, 40 community members, some holding signs saying “BOYLE HEIGHTS IS NOT FOR SALE,” testify about their experiences with eviction and displacement, and their fears of gentrification. Three of the five APC commissioners are moved. Commissioner Lydia Avila-Hernandez says:

The Commission votes 3-2 to uphold your appeal and deny the project. The project is dead.

Except…it turns out the whole appeal process was a charade. The Commission’s denial was illegal. In February 2025, a court concludes the Commission acted in bad faith, overturns their decision, and demands they reconvene to approve the project within 60 days. If they don’t, the city will be subject to fines that start at $2.5 million.

What happened here? Why did Viva Padilla put in all this work only to have it overturned by a judge? In California, if a developer proposes a building that follows a city’s rules (zoning, design standards, etc.), the city has to approve the building. This sounds obvious, like if you’re following traffic laws while driving, you shouldn’t get pulled over. But like traffic stops, planning decisions can be influenced by all kinds of other factors. Like, say, fears of gentrification. Or NIMBYism. Or aesthetics. So the state legislature decided to provide guardrails by passing the Housing Accountability Act.

The HAA says two big things: first, a city’s rules for housing have to be objective, with “no personal or subjective judgment by a public official.” A building can’t be denied because someone thinks it’s ugly, or out of scale, or causing rents to go up in the neighborhood, because all of that is just like your opinion, man.

Second, the HAA says if a proposed building follows the city’s rules, the city has to approve it, no matter how much it doesn’t want to. The only rare exception: if the city can somehow prove that the building would harm public health or safety, again based on objective standards.

If a city wants buildings to look a certain way, it can enact design guidelines. If a city wants buildings to be a certain size, it can enact zoning laws. If a city wants to mitigate the effects of gentrification, it can enact a whole host of policies, including rent stabilization, just cause eviction, and protections for tenants whose buildings are demolished. What all of these rules have in common is that they don’t apply to just one building. They are policies that reflect a city’s values, and they provide clear guidelines to developers who want to build there.

The HAA has made the approval process less arbitrary and more predictable, which in turn has made building in California a less risky proposition for developers. In fact, the law has become such a cornerstone of housing policy in California that the legislature has amended it multiple times in the last decade to strengthen and clarify it.

Which brings us to appeals. Building approvals get appealed all the time. By neighbors who don’t like poor people, by labor unions angling for better pay for construction workers, and even by resourceful bookstore owners taking up the righteous cause of a historically marginalized community.

Appeals make building approvals more democratic, forcing developers to engage with the community in order to make the built environment better. But the appeals process has been abused so many times, with buildings denied for so many arbitrary reasons, that the state legislature needed to pass a law to take the democracy out of the process.

If a building that follows a city’s rules can’t be blocked, why do they even let people appeal it? The Planning Dept. says:

The public gets to question certain decisions. Not to actually influence them. Because the HAA took that power away, not just from individuals, but from the city as well. Once the city writes its housing laws, the approval is baked in when the developer submits their lawful proposal. All the hearings, public comments, letters from elected officials, protests, and appeals - by law, they can have no bearing on whether the building gets approved. Appeals are, at best, a way for people to vent their frustration about a building. But apparently nobody has the guts to tell them that.

There is nothing fair or equitable about a process that gives people the illusion of power. It is particularly cruel and patronizing to give false hope to the people of Boyle Heights, who have been fighting other people’s planning decisions for decades. Freeways slicing through parks so suburbanites could drive downtown faster, oil pipelines proposed in the middle of neighborhoods, lead polluting the air and soil from the Exide battery plant. At the bare minimum, Boyle Heights deserves honesty from its leaders about what is possible and what isn’t.

And yet every one of those leaders conspired to maintain the illusion. Viva Padilla organized her butt off to fight the building in Boyle Heights, and not one of her leaders - not the Neighborhood Council, not the Area Planning Commission, not even her City Councilmember - had the courage to tell her in public there was nothing they could do about it. Instead, they all joined her. A special badge of cowardice goes to the APC, whose members were told over and over again by city staff that they couldn’t deny the project:

And the commissioners knew they were breaking the law:

These quotes are from the Judge Curtis A. Kin’s opinion in the case, which is clearly written and worth reading for the blow-by-blow recap of the Area Planning Commission’s meetings. Judge Kin needs only one sentence to dismiss the APC’s vibes-based reasoning:

It’s notable that while none of Ms. Padilla’s leaders were willing to tell the her truth, plenty of city staffers were willing to state clearly what the law is to those leaders. Even the state housing department weighed in, sending the city a letter that “urges the Commission to reverse its denial of the appeal and approve the Project.” The problem is that the ultimate decision in the appeal process rested not with any of these impartial staffers but with the APC commissioners, who were so swayed by the stories of the people facing them in the hearing that they were willing to break the law in order to avoid telling their audience the hard truth.

City leaders should not be involved in deciding appeals. We already have a long-established system for resolving disputes in our country: the courts. Ms. Padilla’s case wound up there too. The point of the justice system is to provide a semblance of impartiality. We can’t expect city leaders to be impartial - we expect them to represent their constituents. That lack of impartiality means appeals decisions should be taken out of their hands. Let city staffers decide appeals, and let rther disputes be resolved in the courts.

People still get the chance to exert power over development, just earlier in the process: when the city is making its rules. In fact, at the same time Ms. Padilla was appealing the building, the city was in the middle of rezoning her entire neighborhood as part of the Boyle Heights Community Plan Update. The process included tons of public meetings where people could voice their desires and concerns, and much of that input influenced the final plan. That’s the process through which the city gave its people power. Once the zoning is in place, according to the HAA, the people can’t have say over individual buildings.

Should building appeals be eliminated altogether? I don’t think so, but they should be reframed. There is value in the city convening hearings where developers have to face members of the community they intend to build in. For all the toxicity, once in a while, the process leads to constructive dialogue between the parties. At the very least, people can feel heard. So let’s call it something other than an appeal, something that gives people a voice but not a misleading sense of power. A community engagement session. A development roundtable. A planning dialogue. Set clear expectations at the outset for what citizens can and can’t accomplish through the process, and let people have at it.

For a masterclass in how a leader can set expectations for their community in the appeal process, listen to Councilmember Katy Yaroslavsky address her constituents who appealed an apartment building in her district. She thanks them, even while pausing to call one of them out for giving her the finger. She thanks the developer for modifying the project in response to community concerns. Then she asks city staffers about the law. We don’t have the discretion to make the building smaller, correct? There’s no evidence that would allow us to grant the appeal, correct? If we grant the appeal, we could be fined $2.1 million, correct? Then:

Regardless of what she personally thought of the project, Councilmember Yaroslavsky understood the situation, explained it to her constituents, acknowledged their concerns, sympathized with them, and then followed the law. That is the kind of leadership that treats citizens like adults - the leadership Viva Padilla and Boyle Heights deserved but didn’t get.

Good leadership is rare. Most officials can’t resist the pressure to pander to their constituents. Until we find more leaders who are willing to tell us hard truths, let’s take appeals out of their hands.