One of the most contentious issues in the very, very contentious formation of a business improvement district in Venice has been the existence of properties with commercial zoning that are used solely for residential purposes that were included in the BID and therefore assessed. This is the basis of a recently filed lawsuit against the City as well as a significant number of other protests against the BID.

For instance, in May 2016, Venice homeowner¹ Louis Traeger wrote to the City protesting the inclusion of his home in the BID. On June 1, 2016 Los Angeles City Clerk Holly Wolcott answered him, stating:

In address of your request to remove said property from the proposed Business Improvement District, the City Clerk does not have the authority to remove or add properties in a Business Improvement District. However, we will forward your request and this information to the Engineer conducting the survey and analysis for the creation of the Venice Beach Business Improvement District.

Further, you requested notice of any hearing concerning the approval of the Venice Beach Business Improvement District in order to submit your written opposition. If your property is ultimately included within the Business Improvement District boundaries, a notice of the City Council hearing date will be mailed to you. At the hearing, an opportunity will be provided to protest the establishment.

As far as I can tell² what Holly Wolcott says is the truth and it’s nothing but the truth, but it is in absolutely no way at all the whole truth. Her statement that “the City Clerk does not have the authority to remove or add properties in a Business Improvement District” is true. When she follows it up with a statement that she will “forward your request and this information to the Engineer conducting the survey and analysis” she is certainly creating the impression that ONLY the engineer is empowered to remove properties. This is not true. It’s really badly not true, as I will demonstrate below.

On July 27, 2016 Holly Wolcott wrote to Venice homeowners William and Laura Kuel making essentially the same argument, but with this additional twist:³

You also requested suggestions or options you may have such as applying for a zone change. Information on the process can be obtained from the Department of Building and Safety. … In addition, the property is currently a non-contributing structure adjacent to the Lost Venice Canals Historic District… You may wish to consider restoring the property to qualify for historic designation through the City’s Office of Historic Resources, which can qualify you for a reduction in property taxes through the Mills Act or other preservation incentives, in order to maintain the historic character of the property.

Again, as far as I can see, this is all true enough, but in effect it’s a lie. Indeed, it’s a condescending and insulting lie to act as if the only option these people have for removing their property from the BID is to get it rezoned or else to freaking have it RENOVATED to freaking restore its historical character?!? This is not only not true, but, as above, it’s really badly not true, as I will⁴ demonstrate below.

And Holly Wolcott isn’t the only one singing this song. Also shadowy BID consultant Tara Devine, about whose illegal business practices I will be writing soon enough,⁵ uses the same kinds of arguments in a particularly mendacious email to William Kuel:

Please keep in mind, as we discussed during the petition stage, it is zoning and not use that guides assessment district formation. In many communities across California, zoning and use are not consistent. Conditional uses, legal non­conforming uses, variances, etc. are also all part of the landscape that causes differences between zoning and use. No, neither the Engineer nor I can remove your parcel from the proposed BID.

She has used this “zoning and not use” argument many times. As far as I can see it’s based on the established fact that if a property is zoned residential it is conclusively determined not to benefit from BID activities and is thus excluded. Tara Devine⁶ acts as if this means that commercially zoned properties MUST be included in BIDs which is, of course, the fallacy of the converse.⁷ If she’s committing it intentionally she’s a liar. If she’s doing it unintentionally she’s a fool.⁸

Furthermore, her statement that neither she nor the engineer can remove the parcel from the BID is just flat-out not true. Of course the engineer can remove it. Holly Wolcott said as much in the two letters discussed above. Deciding which parcels go into the BID is precisely the engineer’s job. If she’s lying, of course, she is lacking integrity, which is one of the Clerk’s explicitly stated criteria for even being a BID consultant.

And Mike Bonin himself is guilty of this exact same kind of obscurantism. On November 8, after his BID was approved by his co-conspirators on the Council, he made the following remarks:

I would just say one final thing to those who talked about the fact that…properties that are zoned commercial but are used as residential. As I said when I met with you folks recently, I am happy to help those folks get their properties rezoned as residential properties. And I’m happy to meet with those folks and would even be willing to initiate a zone change from my end to make it a little less expensive and more helpful. [Unintelligible] …these properties that have been used residential but have been zoned commercial for a long time, and that’s certainly something we can work on at this point.

Again, even though he’s not saying anything false, he is definitely creating the impression that the only solution for people whose properties are zoned commercial but used for residential purposes is to have them rezoned. This impression is very, very wrong.

In fact, the state law regulating the establishment of BIDs, which is known as The Property and Business Improvement District Act of 1994, seems to have anticipated the need for flexibility in the inclusion of properties. In particular, take a look at Section 36624, which states in its entirety that:

At the conclusion of the public hearing to establish the district, the city council may adopt, revise, change, reduce, or modify the proposed assessment or the type or types of improvements, maintenance, and activities to be funded with the revenues from the assessments. Proposed assessments may only be revised by reducing any or all of them. At the public hearing, the city council may only make changes in, to, or from the boundaries of the proposed property and business improvement district that will exclude territory that will not benefit from the proposed improvements, maintenance, and activities. Any modifications, revisions, reductions, or changes to the proposed assessment district shall be reflected in the notice and map recorded pursuant to Section 36627.

See that? The law explicitly allows the City Council to remove properties from the BID at the end of the hearing. It explicitly gives the City Council the right to overrule the engineer and to make their own determination as to which properties will benefit from the BID and by how much they will benefit. That is, when Mike Bonin was offering to meet with his unhappy constituents to rezone their properties in order to exclude them from the BID, he could just as well, and ever so much more effectively, been telling his colleagues on the Council that they ought right then to remove those properties. Or to reduce their assessments, even down to zero. After all, by offering to get them rezoned, he had already admitted that the properties ought to be excluded or not assessed. Why not use his power to exclude them rather than acting as if the complicated and probably costly rezoning process was the only option?

And when Holly Wolcott was answering the Kuels and Louis Traeger, why did she act as if there was no recourse to have properties removed? Instead of telling Traeger that he could protest the establishment of the BID at the Council hearing, why not tell him that he could ask Mike Bonin to exclude his property and that Mike Bonin had the power to exclude it?⁹

And when she was explicitly listing options for the Kuels, including the intensely, ridiculously unrealistic option of renovating their freaking house, why didn’t Holly Wolcott also tell them that, oh by the way, you can just ask Mike Bonin to exclude your property and he has the power to do so? And shadowy BID consultant Tara Devine? Instead of claiming that neither she nor the engineer could exclude the Kuels’ property from the BID and then blathering on about zoning, why did she not just admit that Mike Bonin could remove the property at the hearing?

Now, none of this means that Mike Bonin is a liar, or that Holly Wolcott is a liar, or that Tara Devine is a liar.¹⁰ In order for them to be lying, they would have had to have known about the law. But Tara Devine is paid to be an expert in the BID establishment process. Can she really not know about the law? Holly Wolcott is in charge of the Neighborhood and Business Improvement Division of the City Clerk’s office, which does all the City’s BID work. Does she really not understand the law? Mike Bonin has been pushing for this freaking BID since he took office in 2013. Does he really not understand the law?

Well, sadly, it isn’t impossible that none of these people understand the law. They’ve all had so much free rein to operate with so little oversight, with no one paying attention, that they are incredibly sloppy in their work. Their idiotic flouting of explicit statutory requirements in the case of the first Venice Beach BID hearing in August shows that, and this is just one of many, many examples.

But really, what kind of people hold themselves up as experts when they don’t even know the basics? What kind of people assume the power to create BIDs without knowing the basic rules of BID creation? Not smart people. Not honest people. If they weren’t lying about this law, if they didn’t understand this fundamental aspect of the process of BID establishment but took their jobs anyway, then they aren’t liars. But they are fools.¹¹

Images of Mike Bonin, Holly Wolcott, and Tara Devine are ©2016 MichaelKohlhaas.org. Image of Divine may be under copyright and appears here under a claim of fair use.

1. And party to the above-mentioned lawsuit.
2. And please, never forget that I am not a lawyer and I don’t really conclusively know what I’m talking about with respect to legal matters. On the other hand, at least I’m honest, and as I will argue, pretty convincingly at least to myself, many of the lawyers involved in this whole Venice Beach BID fiasco, at least the ones working for the City, are either incompetent, dishonest, or some toxic combination of the two. Which is partly why I don’t feel inclined to refrain from commenting. I may be wrong, but at least I’m trying to be right.
3. Links omitted.
4. I promise I will. Or you can just skip ahead if you’re getting impatient.
5. I hope within the next week. This is what Miss Myers, my Tenth Grade English teacher at Venice High, used to call “foreshadowing.” I’ve since discovered that she did not invent the term! Anyway, it ain’t foreshadowing if it don’t come true later.
6. And probably everyone in the BID world of Los Angeles.
7. It’s the fallacy of the converse complicated a little bit by the intrusion of logical modalities. That is, it’s true that if a property is zoned residential then it must be excluded. It’s tautologically true that if a property must be excluded then it can be excluded. That’s the modal bit. Thus it’s true that if a property is zoned residential then it can be excluded. Devine argues that if a property is not zoned residential then it cannot be excluded. This is the contrapositive of the statement that if a property can be excluded then it is zoned residential. That is the false converse of the true statement that if a property is zoned residential then it can be excluded. I’m sure my parents will be happy to know that college wasn’t wasted on me!
8. She may in fact be both, but that’s beyond the scope of this inquiry.
9. OK, it’s true that the whole Council would have to vote to exclude the property, but anyone who is paying attention knows that they would defer to his wishes as a matter of course.
10. Tara Devine is in fact a liar, though, as shown by her claim that the engineer does not have the power to exclude properties from the BID.
11. And I suppose that doesn’t speak so well of we the people of Los Angeles, who voted in Mike Bonin and Eric Garcetti, who appointed Holly Wolcott. But we can certainly fix that in March.