Beverly Hills City Council
June 27, 2024

WRITTEN PUBLIC

COMMENTS RECEIVED
June 27, 2024
VIA EMAIL:

City Council, City of Beverly Hills ([email protected]) RE: ITEM F-2: APPEAL OF MIXED-USE PROJECT (125-129 S. LINDEN DR.) Dear Honorable Mayor and City Councilmembers:

On behalf of UNITE HERE Local 11 (“Local 11”), this office respectfully provides the following comments to the City of Beverly Hills (“City”) regarding the new 19-story, mixed-use building including a 73-room hotel and 165 apartment units (33 units affordable) (“Project”) on a 21,676 square foot (“sf”) property located at the above-referenced address (“Site”), proposed by the property owner 9300 Wilshire LLC (“Applicant”).

City staff has determined that the Project application is incomplete, in part, due to substantial changes made to the Project since its initial submittal, missing application materials, corrections needed to comply with development standards, and the missing application for a General Plan Amendment and Zone Text Amendment. (See Staff Report, pp. 2-3.) The Applicant has appealed this determination, arguing for a “Builder’s Remedy” under the Housing Accountability Act (collectively “Appeal”), and the Staff Report recommends that the City Council deny this Appeal. (Id.)
According to the Staff Report, the Applicant’s Preliminary Application (“PA”) was submitted in October 2022 for a 100 percent residential project (i.e., 16-story, 259,547-sf, 200 dwelling units). (See Staff Report, pp. 4, 7-8.) However, roughly six months later, the Applicant submitted its formal Development Plan Review (“DPR”) application for a substantially different mixed-use project (i.e., 19-story, 311,197-sf, 165 dwelling units, 73-room hotel). (Id.) In short, the addition of three more stories and 50,000+ square feet, a reduction of 35 dwelling units, and adding an entirely new commercial use seems to be a significant change. So too, there does not appear to be any environmental analysis conducted to ensure potential Project impacts affecting adjacent residents and other City stakeholders have been analyzed or mitigated (e.g., construction noise impacts, vehicle miles traveled, greenhouse gas emissions, minimizing wasteful use of energy, etc.). Moreover, while Local 11 is supportive of housing projects (particularly those including affordable units), it is troubling to see the use of housing laws— intended to help produce housing during a housing crisis—to further a Project that was substantially changed after the fact to reduce housing in furtherance of a 73-room hotel.

For these reasons, Local 11 supports the Staff Report recommendation that the Council deny the Appeal and require a complete application and adequate environmental review of the Project.

Sincerely,
__________________________________________________
Jordan R. Sisson
Attorney for UNITE HERE Local 11

MATTHEW GELFAND, COUNSEL
[email protected]
TEL: (213) 739-8206
June 27, 2024

VIA EMAIL
Mayor & City Council
City of Beverly Hills
Email: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
RE: Proposed Development at 125-129 S. Linden Drive (PL2300146) To the Mayor and City Council:

As you know, Californians for Homeownership is a 501(c)(3) organization devoted to using impact litigation to address California’s housing crisis. This letter follows up on our October 10, 2023 and February 20, 2024 letters regarding the proposed development at 125-129 S. Linden Drive. These letters established our standing to challenge a denial of the application under subdivision (k)(2) of the Housing Accountability Act (HAA), Government Code Section 65589.5. Now that the City stands at the precipice of denying the application, we are notifying you that we intend to initiate litigation against the City under the HAA—tomorrow—if it does so.

As we explained in our prior letters, this project is subject to the so-called “builder’s remedy” under the HAA. Because the project qualifies as “a housing development project . . . for very low, low-, or moderate-income households,” the City must approve it unless the City can demonstrate the applicability of one of the exceptions in subdivisions (d)(1) through (d)(5) of the HAA. And because the City has not adopted a general plan housing element that substantially complies with state law, it is further prohibited from using subdivisions (d)(1) or (d)(5) to reject the project. The record reflects that the City has no good faith basis for a denial, and indeed is engaging in a bad-faith scheme to disguise the planned denial as an incompleteness determination.

When a locality rejects a housing development project without complying with the HAA, the action may be judicially challenged in a writ under Code of Civil Procedure Section 1094.5.

Gov. Code § 65589.5(m). The legislature has significantly reformed this process over the last decade in an effort to increase compliance. Today, the law provides a private right of action to non-profit organizations like Californians for Homeownership. Gov. Code § 65589.5(k). The locality bears the burden of proof in HAA litigation, and must pay a prevailing challenger’s attorneys’ fees. Gov. Code §§ 65589.5(i), (k)(1)(A)(ii), (k)(2). In certain cases, the court will also impose fines that start at $10,000 per proposed housing unit. Gov. Code § 65589.5(k)(1)(B)(i).

Indeed, earlier this year, a court fined the City of Berkeley $2.6 million on this basis, and that city June 27, 2024

was also forced to pay $1.4 million in attorneys’ fees arising out a developer’s HAA lawsuit.1 We have successfully litigated under the HAA in the past. In Californians for Homeownership v. City of Huntington Beach, Orange County Superior Court Case No. 30-2019- 01107760-CU-WM-CJC, the court ruled that Huntington Beach violated the HAA when it unlawfully rejected a condominium project. That city attempted to appeal the decision but abandoned its appeal after coming to understand that it would need to post a multimillion dollar bond to do so. It ultimately agreed to approve the project and pay $600,000 in attorneys’ fees to us and two other plaintiffs.

And to be clear, if the City Council affirms the incompleteness determination regarding the 125-129 S. Linden Drive project, that will constitute a denial of the project for purposes of the HAA. The City’s plan is a transparent sham that attempts to insulate the City from HAA liability by disguising a denial as an incompleteness determination. Among other things, the City cannot demand that an applicant under the builder’s remedy apply for a general plan amendment or rezoning in order to have its application deemed complete. The builder’s remedy requires the City to disregard its zoning and general plan standards, not to change them.

Recent letters from the applicant and the state Department of Housing and Community Development explain in detail why you must grant the appeal before you. These letters are attached for your reference.

We urge the City to follow the law. If it refuses to do so, we will immediately file a lawsuit.

Sincerely,
Matthew Gelfand

cc: Michael Forbes, Comm. Dev. Dir. (by email to [email protected]) Masa Alkire, City Planner (by email to [email protected]) Edgar Arroyo, Senior Planner (by email to [email protected]) Nancy Hunt-Coffey, City Manager (by email to [email protected]) Ryan Gohlich, Asst. City Manager (by email to [email protected]) Laurence Wiener, Esq., City Attorney (by email to [email protected]) 1 https://www.berkeleyside.org/2024/02/16/court-ruling-1900-fourth-street

EXHIBIT A

633 West Fifth Street
Suite 5880
Los Angeles, CA 90071
213.557.7222
www.rpnllp.com
Dave Rand
213.557.7224
[email protected]
June 26, 2024

VIA EMAIL
City of Beverly Hills
Honorable Mayor and City Council
[email protected]

Re: Appeal of Incomplete Determination Pursuant to Government Code § 65943(c) 125-129 South Linden Drive
Dear Honorable Mayor and City Council:

Our firm represents 9300 Wilshire, LLC (“Applicant”) in connection with the Development Plan Review application (“DPR Application”) for the proposed mixed-use project at 125-129 South Linden Drive (“Site”) in the City of Beverly Hills (“City”), assigned case number PL2300126 (“Project”). The Project is a mixed-use development including 165 total units, with 33 of those units (20%) restricted for lower-income households. The Project would also include 73 hotel rooms and a hotel restaurant.

On January 11, 20241
, the Applicant filed an appeal of the City’s Second Incomplete Letter, which determined that the DPR Application was incomplete (“Appeal”). 2 For the reasons stated below,
we respectfully request that the City Council grant the Applicant’s appeal and determine that the DPR Application is complete.

HCD
On June 26, 2024, the California Department of Housing and Community Development (“HCD”) issued a Letter of Support and Technical Assistance to Michael Forbes, the City’s Director of Community Development.3
This letter states that “For the proposed Project on Linden Drive, the City Council should grant the appeal and direct City staff to process the Project without further delay and without imposing a requirement for a [general plan amendment or zone change].”4 We urge the City to comply with
HCD’s guidance.
1 The Applicant submitted the appeal request to the City on November 13, 2023. The Applicant paid the appeal fee on January 11, 2024, so this is considered the filing date. 2 Attachment 13 to the July 27, 2024 City Council Agenda Report for Item F-2. 3 Attached hereto as Exhibit 1. 4 Page 4 of the letter (emphasis added).

City of Beverly Hills
June 26, 2024

Summary
This Appeal ultimately hinges on whether the City of Beverly Hills will comply with the Permit Streamlining Act and the Housing Accountability Act and allow the application to move forward through the normal review process, or instead disregard state law and refuse to even consider an application for a project that would bring 165 new housing units to the City, including 33 affordable units.

To be clear: this Appeal is not asking the City Council to approve the Project. All the Applicant is asking for at this stage is a basic, benign acknowledgment that the Applicant has submitted a complete application. There will be plenty time in the future for the City to consider the merits of the Project.

To date, the City has continuously nitpicked the DPR Application and contorted the review process and requirements in an apparent effort to delay and frustrate this Project. Moreover, the City has outright refused the process the DRP Application as a Builder’s Remedy project in violation of the Housing Accountability Act. We respectfully request that the City find the Applicant has submitted a complete DPR Application and permit the project to move forward as a Builder’s Remedy project, in compliance with state housing law.

Application Submittal and Review Timeline
On October 21, 2022, the Applicant submitted a preliminary application for the Project (“Preliminary Application”) pursuant to Government Code Section 65941.1. 5 On April 14, 2023, within
180 days after filing the Preliminary Application, the Applicant submitted the DPR Application for the Project.

On May 12, 2023, the City issued a letter determining that the DPR Application was incomplete (the “First Incomplete Letter”).6 On August 9, 2023, the Applicant submitted a formal written response to the First Incomplete Letter (“Response to First Incomplete Letter”), which included detailed written responses to each of the First Incomplete Letter’s 38 comments as well as attachments addressing the specific information identified as outstanding by the First Incomplete Letter.7 On October 13, 2023,8 the
5 The City’s May 12, 2023 First Incomplete Letter states “Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022.” This point is not contested here. 6 Attachment 2 to the July 27, 2024 City Council Agenda Report for Item F-2. 7 Attachment 3 to the July 27, 2024 City Council Agenda Report for Item F-2. 8 Notably, the date of the Second Incomplete Letter is more than 30 days after the date of the Response to First Incomplete Letter. Pursuant to Government Code Section 65943(b), “Not later than 30 calendar days after receipt of the submitted materials described in subdivision (a), the public agency shall determine in writing whether the application as supplemented or amended by the submitted materials is complete and shall immediately transmit that determination to the applicant. … If the written determination is not made within that 30-day period, the application together with the submitted materials shall be deemed complete for purposes of this chapter.” Because the Applicant did not receive a written response within 30 days following submission of the Response to First Incomplete Letter, this firm sent additional correspondence to the City on September 15, 2023 (“Confirmation of Deemed Complete Letter”), again via email, advising the City that because no response to the Response to First Incomplete Letter had been timely received, the Project was therefore considered “deemed complete” in accordance with Government Code Section 65943(b). The City responded to the Confirmation of City of Beverly Hills
June 26, 2024

City issued a second letter which again determined that the DPR Application was incomplete (the “Second Incomplete Letter”).9
In light of the City’s repeated rejection of the DPR Application and the ongoing disagreement between the Applicant and the City about how to fundamentally process the Builder’s Remedy aspect of the Project, it became clear to the Applicant that the parties had reached an impasse. Consequently, on January 11, 202410, the Applicant filed an appeal of the Second Incomplete Letter in accordance with the procedure established by Government Code Section 65943(c), which is now set for a hearing by the City Council on June 27, 2024.

Notably, in the months after filing the Appeal, the Applicant has continued to make revisions to the DPR Application, as requested by City staff, in a continued attempt to obtain a determination from the City that the DPR Application is complete. Specifically, on January 10, 2024, the Applicant submitted a response to the Second Incomplete Letter (“Response to Second Incomplete Letter”), which included detailed written responses to each of the Second Incomplete Letter’s comments as well as attachments addressing the specific information identified as outstanding by the Second Incomplete Letter.11 On February 9, 2024, the City issued a third letter which again determined that the DPR Application was incomplete (the “Third Incomplete Letter”).12 On May 9, 2024, the Applicant submitted a response to the Third Incomplete Letter (“Response to Third Incomplete Letter”), which included detailed written responses to each of the Third Incomplete Letter’s comments as well as attachments addressing the specific information identified as outstanding by the Third Incomplete Letter.13 Finally, on June 7, 2024, the City issued a fourth letter which yet again determined that the DPR Application was incomplete (the “Fourth Incomplete Letter”).14 The Applicant has not yet responded to the Fourth Incomplete Letter. (The First, Second, Third, and Fourth Incomplete Letters are referred to herein as the “Incomplete Letters.”)
Response to Agenda Report and Proposed Resolution Denying Appeal The Agenda Report for June 27, 2024, City Council hearing on the Appeal includes a draft resolution (“Draft Resolution”) denying the Appeal. For organizational clarity, the following discussion Deemed Complete Letter on September 18, 2023, via email, stating that it never received the Response to First Incomplete Letter due to an issue with the City’s email security filter system. Notwithstanding that the Response to First Incomplete Letter was in fact timely transmitted to the City on August 9, 2023, within the 90-day timeframe prescribed by Government Code Section 65941.1(d)(2), and notwithstanding the fact that prior and subsequent email correspondence between this firm and the City was timely received by the City, the Applicant agreed to provide the City with a new 30-day period from September 15, 2023 (the date of the Confirmation of Deemed Complete Letter transmittal) to review the materials originally transmitted on August 9, 2023 as part of the Response to First Incomplete Letter.
9 Attachment 4 to the July 27, 2024 City Council Agenda Report for Item F-2. 10 The Applicant submitted the appeal request to the City on November 13, 2023. The Applicant paid the appeal fee on January 11, 2024, so this is considered the filing date. 11 Attachment 5 to the July 27, 2024 City Council Agenda Report for Item F-2. 12 Attachment 6 to the July 27, 2024 City Council Agenda Report for Item F-2. 13 Attachment 7 to the July 27, 2024 City Council Agenda Report for Item F-2. 14 Attachment 8 to the July 27, 2024 City Council Agenda Report for Item F-2.

City of Beverly Hills
June 26, 2024

addresses and refutes each determination in the Draft Resolution, in the order in which the issue appears in the Draft Resolution.

A. The Appeal Was Timely Filed.

The Draft Resolution finds the Appeal was not timely because it was filed outside of the 14-day appeal period stated in BHMC Section 1-4-102. This determination is without merit because the 14-day appeal period does not apply to an appeal of an incompleteness determination. The general right to appeal is stated in BHMC Section 1-4-101 and reads as follows:
1-4-101: RIGHT TO APPEAL
A. Where a right of appeal to council exists under this code, and a procedure is not otherwise specifically set forth in this code, an appeal may be taken to the council, in accordance with the procedures set forth in this article, from any act, ruling, or determination of any commission, board, or official or from the denial, suspension, or revocation of any permit or license.

B. No right of appeal to the council from any administrative decision made by an official of the city pursuant to any of the provisions of this code shall exist when such decision is ministerial and thus does not involve the exercise of administrative discretion or personal judgment exercised pursuant to any of the provisions of this code.

C. No appeal pursuant to the provisions of this article may be taken from any administrative decision made by an official of the city, unless the decision to appeal has been first taken up with the official rendering the decision.

The language in Section 1-4-101 makes it clear that appeals of incompleteness determinations are not subject to the 14-day appeal period in Section 1-4-102. First, the BHMC does not include any provision explicitly creating a right to appeal an incompleteness determination to the City Council. Consequently, the requirement in subsection (A) - “Where a right of appeal to council exists under this code” - does not apply here. Instead, the right to appeal an incompleteness determination exists under state law, specifically Government Code Section 65943(c). Second, subsection (B) provides that there is no right of appeal to the City Council when the administrative decision is ministerial. Ministerial decisions are decisions that do not involve any discretion and are often characterized by simply confirming that the applicant has satisfied all objective conditions on a checklist. This is exactly what is at issue here. The City literally has an application checklist with items that an applicant must submit and City staff have made an administrative determination that the Applicant has not submitted every item on that list and that, consequently, the DPR Application is incomplete. This is a textbook example of a ministerial decision and is therefore an independent reason why the City’s general appeals provisions - including the 14-day deadline for filing an appeal - are not applicable here.

Moreover, it is extremely late in the process for the City to now claim that the Appeal was not timely filed given that the City accepted the filing of the Appeal including the fee, set the Appeal for a hearing, agreed to continue the hearing multiple times, and is now holding an actual hearing on the merits of the Appeal, without having ever mentioned that the Appeal was not timely filed. For example, each of the Agenda Reports continuing the date of the Appeal hearing (from March 11, 2024, April 16, City of Beverly Hills
June 26, 2024

2024, and May 21, 2024) simply recommends that the appeal hearing be continued without ever stating that the Appeal was not timely filed.

Finally, the Draft Resolution cannot have it both ways. If the Appeal was untimely (which it was clearly not), then the Appeal should simply be denied on that ground alone and should have either never been accepted or rejected shortly after the filing along with a refund of the appeal fees. But the Draft Resolution goes on to weigh in on all of the other substantive issues at stake in the Appeal, essentially admitting that an appeal really has been timely filed and really is being considered by the City Council.

B. The Appeal Is Not Moot
The Draft Resolution finds that the Appeal is somehow moot because the Applicant made additional submittals after filing the Appeal, and did not appeal the Third and Fourth Incompleteness Letters. The Applicant made additional submittals after filing the Appeal because state law requires the Applicant to respond to incompleteness letters within 90 days to keep a preliminary application from expiring and does not extend or toll this time period while an appeal is pending.15 Thus the Applicant was required by law to make addition submittals or else risk expiration of its preliminary application.

Moreover, the Appeal would only have become moot if all of the issues in the Appeal had been resolved through the Applicant’s subsequent submittals and the City’s subsequent response letters. But this has not occurred. In fact, the Applicant’s subsequent submittals clearly acknowledge that some of the outstanding issues must be resolved through the appeal (for example, the major threshold legal issues related to the Builder’s Remedy), while also attempting to narrow down the other remaining issues (for example, the specific – very minor – details of plan submittals).

Consequently, there is no basis for determining that the entire Appeal is moot. At most, the only issues that are now moot are the specific issues that were resolved through the back-and-forth that took place between the City and the Applicant following the filing of the Appeal. For example, page 6 of the Agenda Report states that there were 9 incomplete items in the DPR Application submitted on October 13, 2023 (in addition to the disputed general plan and zoning amendments), but that only 4 of those items (Items 1, 2, 3, and 5) remain unresolved as of the date of the Agenda Report. It would therefore be reasonable to determine that the Appeal is moot as to Items 4, 6, 7, 8, and 9, but not as to other items that remain outstanding.

C. The Applicant Has Submitted All Legally Required Materials To Be Deemed Complete.

The Draft Resolution finds that the DPR Application was incomplete at the time the Appeal was filed based on 9 items, listed in the Resolution. However, the City admits on page 6 of the Agenda Report that 5 of those items have been resolved through subsequent submittals by the Applicant such that the only issues that remain outstanding are Items 1, 2, 3, and 5. Thus, those four issues are addressed below.
15 Government Code Section 65941.1(d)(2) and 65943(c).

City of Beverly Hills
June 26, 2024

D. All Required Information Has Been Provided.

The Draft Resolution finds that the DPR Application remains incomplete as of the date of Appeal hearing based on 4 items listed in the Section (D) of the Draft Resolution. Each of these issues has been adequately addressed as discussed below:

1. “The plans do not include required information regarding rooftop mechanical equipment and screening (Correction 7c).”
The First Incomplete Letter included the following language as Correction 7c:

Mechanical Equipment Screening – Show the proposed rooftop mechanical equipment screening on all sections and elevations, as the proposed screening is not shown on the sections and elevations provided. Pursuant to BHMC Section 10-3-100 (Height), the max height is 15'-0" for mechanical equipment penthouses and enclosures.

As with many of the comments made by the City in the Incomplete Letters, this comment includes both a request for information on the plans and a request that the Project be modified to comply with the BHMC requirements for roof structure height. The Response to First Incomplete Letter provided a response to this comment indicating that the Project is not required to achieve consistency with the zoning standards because it is a Builder’s Remedy project, so no changes to the height are required nor may such changes be a requirement to complete the application.

The Response to First Incomplete Letter does include a reference to the requested information on the plans as follows: “For informational purposes, the plans have been revised to include additional data on the height and screening of the roof structures. Refer to sheets A23-A31.” The elevation sheets referenced include the proposed height of the roof structures in feet as measured from several elevation datum points; Note #9, which specifies which structure is the “Mechanical Trellis;” and Note #8, which specifies the location of a “60” High Mechanical Screen, type.” The section sheets include the same height information and notes regarding the screening as the elevations and also identify “Mechanical Equipment,” in Note #2, which is visibly placed behind the screening (as is the purpose of an architectural section diagram). This information is clearly responsive to both Correction 7c and also to the requirements of the DPR application checklist, which only require that an application include elevations and sections that “Indicate the height of all existing and proposed structures. Indicate how height is measured. Include datum points.”
The only other reference to mechanical equipment on the DPR application checklist is within the requirements for a Roof Plan, stating “Show the location of any roof-mounted mechanical equipment and required screening.” This information is also adequately provided on the roof plan, within the architectural plan set. As such, this item was addressed in the Response to First Incomplete Letter and required information has been provided on the elevations, sections, and roof plan of every subsequent resubmittal.

2. “The plans do not show the code-required setbacks (Corrections 9a, b, c, d, e).” The First Incomplete Letter includes Correction 9a, b, c, and d, which states that the BHMC requires a front setback of 15 feet, a cumulative side yard setback of 23 feet with at least 9 feet on one City of Beverly Hills
June 26, 2024

side, and a rear setback of 15 feet in the R-4 zone, and that the design must be revised to comply with the “applicable” setbacks. Correction 9e states that per BHMC Section 10-3-2811 the portion of the basement garage that may encroach into the front yard setback must be two feet lower than the grade of the adjacent sidewalk and that the depression shall be planted with landscaping. Each of these comments states that the Applicant must “revise the design” with these setbacks.

The Project proposes a seven (7) inch front yard setback, a ten (10) foot, ten (10) inch south side yard setback, a seven (7) foot north side yard setback, a zero (0) foot rear yard setback, and the first basement garage level is not two feet lower than the adjacent sidewalk. The DPR Application includes the proposed setback dimensions on all sheets. The Response to the First Incomplete Letter states clearly that the Project is not subject to the “code required” or “applicable” setbacks. The plans provide relevant information regarding the setbacks that are proposed and addresses the City’s assertion that the Applicant must revise the Project to meet these standards. The Project is not required to be consistent with the City’s general plan or zoning regulations, so this item cannot be used to deem the application incomplete.

3. “The plans do not include required front yard paving information (Correction 11).”
The First Incomplete Letter stated Correction 11 as:

Front Yard Paving – Sheet A14 BHMC Section 10-3-2813 details the applicable front yard paving standards for properties located within the City’s R-4 Zone. Pursuant to this section, no portion of any front yard within the R-4 Zone shall be paved, except for not more than one walkway not exceeding five feet (5') in width and one driveway not exceeding the width of its curb cut. Based on the design provided on Sheet A14, the project includes a paved courtyard and walkway to the north side of the property. No driveway paving is proposed within the front yard setback area. Together, these walkways exceed the maximum allowable width for walkways located in the front yard setback area.

Revise the design of the paving proposed in the front yard setback area to include one (1) walkway that does not exceed 5’ in width. Additional walkways not exceeding 5’ in width may be permissible as detailed in BHMC Section 10-3-2813.

The Project includes a landscaped courtyard that is partially paved and a walkway that collectively exceeds five feet in width. Diagrams of the paving are shown on the Site Plan as well as on the Landscape Plan, on Sheet L1.10, along with details of the proposed paving type. The City’s own comment acknowledges that the plans include adequate information to determine which areas are paved on the ground level of the Project, as it states clearly that the design includes a paved courtyard and walkway to the north side of the property. The correction does not ask for more information to be added so that the City may assess the application for completeness, it just repeats the assertion that the Applicant must revise the Project to meet the front yard paving standards. As stated clearly in the Response to the First Incomplete Letter, the Project is not required to be consistent with the City’s general plan or zoning regulations, and information is provided to show which areas of the ground floor area paved. This item cannot be used to deem the application incomplete.

City of Beverly Hills
June 26, 2024

4. “The plans do not include sufficient information related to loading and potential issues with T- alley intersection (Correction 14b).”
The First Incomplete Letter stated Correction 14b as:

Loading Study – Provide a loading study that evaluates the loading demands of the proposed project and determines the adequacy of the loading areas proposed. The loading study shall also study vehicle maneuverability into the proposed loading areas, particularly truck maneuverability for accessing the loading space located adjacent to the alley at the rear, as it appears difficult to maneuver a truck in the alley due the existing width. The existing alley measures 15’ in width, but would be widened to 17’-6” feet once the project dedicates land along the alleys.

The Project provides three loading zone spaces along the rear alley with a width of 12 feet and a length of 40 feet. The DPR Application provides a Loading Study diagram on Sheet A37 of the plans, which diagrammatically shows how an 18’ Cargo Van and a 26’ Truck would maneuver to and from the Project’s loading areas. In the Fourth Incomplete Letter, the City acknowledges that a loading diagram was provided but stated that it was not sufficient because “The exhibit does not provide dimensions showing the width of the turning areas, nor does show compliance with applicable American Association of State Highway and Transportation Officials (AASHTO) standards” and asserted that the study must be prepared by a licensed professional.

This response cannot be used to deem the application incomplete for two reasons. First, preparation of a loading study by a “licensed professional” to demonstrate compliance with AASHTO standards is not listed on the DPR application checklist, which only requires that a Loading Study be provided if requesting a modification from the loading requirements (which the Project is not, because it is not required to be consistent with the loading requirements) and that the Applicant “Provide a study to indicate that the type/site/location of the proposed loading space area is sufficient to meet the needs of the building and operation.” The Project does provide such a study to indicate how the loading space areas are sufficient. Second, the City cannot add to or expand the requirement to provide new information that was not identified in the First Incomplete Letter.16 The Applicant has satisfied these requirements as stated in the DPR application checklist and as such this cannot be used as a reason to deem the application incomplete.
16 Cal. Gov. Code § 65943 states “(a) Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. If the application is determined to be incomplete, the lead agency shall provide the applicant with an exhaustive list of items that were not complete. That list shall be limited to those items actually required on the lead agency's submittal requirement checklist. In any subsequent review of the application determined to be incomplete, the local agency shall not request the applicant to provide any new information that was not stated in the initial list of items that were not complete.” (Emphasis added.)
City of Beverly Hills
June 26, 2024

E. The Project Qualifies Under the Builders Remedy Provision of the Housing Accountability Act and Maintains Its Vested Rights.

1. This Issue Is Not Relevant To Whether the Application is Complete As a preliminary matter, we note that the issues of (1) whether or not this Project is a “Builder’s Remedy” project and (2) whether or not the Applicant’s preliminary applicant is still valid are not in any way relevant to whether the DPR Application is complete. Furthermore, it appears that the City agrees with the Applicant on this point. Page 6 of the Agenda Report lists 9 incomplete items, which are generally site-plan related, and also implies that the City considers the Applicant’s failure to submit applications for general plan and zoning amendments to be incomplete items. These 11 items appear to be the sum total of the items the City considered to be incomplete at the time the Appeal was filed. If this is accurate, then the findings in the Draft Resolution related to whether the Project is a Builder’s Remedy project and whether the Applicant’s preliminary application is still valid are irrelevant to whether the DPR Application is complete.

2. The Project Is a Builder’s Remedy Project
As stated above in (1), we do not believe the issue of whether or not this Project is a “Builder’s Remedy” project is in any way relevant to whether the DPR Application is complete. However, to preserve our future rights, and in the interest of providing a fulsome response to the staff report and draft resolution, we nevertheless address this issue below.

The so-called “Builder’s Remedy” is based on a provision of the Housing Accountability Act (“HAA”), Government Code Section 65589.5(d)(5). Under the Builder’s Remedy, if a jurisdiction lacks a substantially compliant Housing Element it cannot use its general plan or zoning regulations to deny or render infeasible a housing development project that sets aside at least 20 percent of its total units for lower income households, as defined in Section 50079.5 of the Health and Safety Code - which the Project does.

At the time the Applicant submitted the Preliminary Application the City did not have a legally compliant Housing Element. This was confirmed both by the September 12, 2023 Los Angeles County Superior Court ruling in Californians for Homeownership, Inc. v. City of Beverly Hills, Case No. 23STCP00143, and in multiple letters from the California Department of Housing and Community Development (“HCD”).17
17 In a letter to the City dated May 12, 2023, HCD found that the City’s 6th Cycle Adopted Housing Element, adopted February 21, 2023, did not substantially comply with State Housing Element law. HCD’s May 12, 2023 letter also stated that “[b]y no means was the City’s prior submittal [adopted October 15, 2021] in substantial compliance with State Housing Law,” and the “City’s findings as part of the adoption are inadequate to demonstrate substantial compliance with statutory requirements; therefore, revisions to the element continue to be necessary to substantially comply with State Housing Element Law.” See also HCD Letter to Dave Rand, entitled “City of Beverly Hills 6th Cycle Housing Element Submittal Compliance and Suitable Sites Inventory - Letter of Technical Assistance” (June 20, 2023) (“HCD confirms that as of the date of this letter, Beverly Hills’ housing element remains out of substantial compliance with State Housing Element Law.”) City of Beverly Hills
June 26, 2024

The submittal of a preliminary application vests an applicant’s right to develop the project in accordance with the ordinances, policies, and standards in effect at the time of submittal.18 HCD has issued a written opinion that the vested policies and standards include a city’s non-compliant housing element in place at the time of a preliminary application filing.19 This opinion was affirmed in a recent lower court opinion in a case addressing a Builder’s Remedy project in the City of La Cañada Flintridge.20 Consequently, by filing the Preliminary Application when the City’s housing element was out of compliance with state law, the Applicant locked in the benefits of the Builder’s Remedy for the project and those benefits will remain applicable to the Project, even though HCD has certified the City’s Housing Element21, as long as the Preliminary Application does not expire or become invalid.

HCD has confirmed the Applicant’s position in the June 26, 2024 letter to Michael Forbes: “The Project [at 1256-129 Linden Drive] has vested the protections of Government Code section 65589.5, subdivision (d)(5), also known colloquially as the “Builder’s Remedy” under the Housing Accountability Act (HAA).”22

3. The Preliminary Application Has Not Expired and Is Not Invalid As stated above in (1), we do not believe that the validity of the Preliminary Application is in any way relevant to whether the DPR Application is complete. For the same reasons discussed above, we nevertheless address the substance of this matter below.

The Draft Resolution states that the Preliminary Application has expired and is no longer valid because the project in the DPR Application is “substantially different” from the project described in the Preliminary Application. The project in the Preliminary Application was a residential-only project that included 200 dwelling units within a 259,547 square foot, 16-story building, with a height of 170 feet, and 124 parking spaces in a four-level subterranean parking structure. The project in the DPR Application was changed to a mixed-use project that includes 165 dwelling units, 73 hotel rooms, and a hotel restaurant in a 311,197 square foot, 19-story building, with a height of 200 feet, and 126 parking spaces in a four-level subterranean parking structure.

There is no question that the project changed; the issue is whether these changes invalidated the Preliminary Application, and the answer is that they did not as a matter of law. The reason for this is straightforward: state law explicitly lists the changes in a project that will invalidate a preliminary 18 Government Code Section 65589.5(o)(1). 19 HCD Letter to Dave Rand, dated October 5, 2022, re: “3030 Nebraska Avenue, Santa Monica - Letter of Technical Assistance.”
20 California Housing Defense Fund v. City of La Cañada Flintridge, Case No. 23STCP02614, Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief (Filed March 4, 2024), p. 15. 21 Notwithstanding HCD’s certification, it appears the City has yet to complete certain mandatory requirements of Housing Element law identified in Judge Kin’s decision in Californians for Homeownership, Inc. v. City of Beverly Hills, Case No. 23STCP00143, including compliance with Government Code Sections 65583.2(g)(1) and (g)(2).

Therefore, given this court order, and these outstanding obligations, the City’s Housing Element remains out of legal compliance notwithstanding HCD’s certification.
22 See page 1 of the letter, including footnote 1. HCD adds that “This assumes that the preliminary application has not expired and that the Project has not been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).”
City of Beverly Hills
June 26, 2024

application and none of those changes occurred here. Government Code Section 65941.1(c), which governs preliminary applications, states as follows:

After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions.

For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).

HCD confirms in its June 26 letter to Michael Forbes that other than a preliminary application expiring, the only other thing that renders a preliminary application invalid is if “the Project has … been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).” (i.e., the twenty percent or more change in unit count and/or square footage thresholds cited above).23
Here, the number of residential units was reduced from 200 in the Preliminary Application to 165 in the DPR Application (a 17.5 percent decrease), and the square footage of construction was increased from 259,547 square feet in the Preliminary Application to 311,197 square feet in the DPR Application (a 19.9 percent increase). These revisions are within the 20 percent threshold set forth in Government Code Section 65941.1(c). Furthermore, the statute in no way prohibits the project from adding a commercial component. All that is required is that the project continue to be a “housing development project,” which is defined as including “Mixed-use developments consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use.”24 Here, approximately 77 percent of the Project is designated for residential use. 25 Therefore, the
Preliminary Application remains valid. This tracks the policy and intent behind the vesting preliminary application – which was ushered in by “the Housing Crisis Act of 2019” or Senate Bill 330. The legislature recognized that the preliminary application was to be filed at a very early stage in the process and that changes were inevitable. That is why the statute includes intentionally flexible parameters to allow for project modifications – and as long as those specific thresholds relative to unit count and square footage are not exceeded – the project is allowed to morph and evolve without forfeiting vested rights.

F. Project Maintains Its Vested Rights Based on Timely Responses to the City’s Incomplete Letters.
23 See footnote 1 on page 1 of the letter. 24 Government Code Section 65941.1(a), 65905.5(b)(3), and 65589.5(h)(2). 25 The architectural plan set submitted with the Response to Third Incomplete Letter, dated March 5, 2024, contains Floor Area Ratio Calculations on Sheet A06 which show that the Project contains 48,032 square feet of hotel uses and 164,377 square feet of residential uses.

City of Beverly Hills
June 26, 2024

As stated above in (E)(1), we do not believe that the issues of whether or not this Project is a “Builder’s Remedy” project or whether or not the Preliminary Application has expired are in any way relevant to whether the DPR Application is complete. However, for the reasons already stated we address the substance of this allegation below.

The Draft Resolution states that the Preliminary Application has expired because the Applicant did not submit a complete application within 90 days of the date of the City’s First Incomplete Letter.

This determination is based on the City’s flawed position that the Applicant is only provided with one 90-day time period during which the Applicant must respond perfectly to all of the items in the City’s incomplete letter to maintain vested rights. This is a tortured misreading of state law. The relevant provision of state law - Government Code Section 65941.1(d)(2) - reads as follows:

If the public agency determines that the application for the development project is not complete pursuant to Section 65943, the development proponent shall submit the specific information needed to complete the application within 90 days of receiving the agency's written identification of the necessary information. If the development proponent does not submit this information within the 90-day period, then the preliminary application shall expire and have no further force or effect.

First of all, this provision does not say that the Applicant only gets one 90-day period within which to resubmit a complete application. It only states that resubmittals must be made within 90 days of receiving an incomplete letter. Furthermore, the Permit Streamlining Act (Government Code Section 65920 et seq.) (“PSA”) clearly establishes an iterative process whereby the applicant submits the application, the City responds within 30 days, and then the applicant can resubmit, followed by another 30-day review by the City, and so on.26 Prior to the addition of Government Code Section 65941.1 as part of the Housing Crisis Act of 2019 (SB 330), the PSA already included a timeline for public agencies to respond to application submittals - namely, 30 days. The addition of Government Code Section 65941.1(d)(2) created a timeline for applicants to respond to incomplete letters when they had previously filed a preliminary application - namely, 90 days. Section 65941.1(d)(2) is part of the PSA and should therefore only logically be read and interpreted in a way that harmonizes that section with the broader review procedures outlined in the PSA, including the iterative process described above.

Furthermore, from a practical perspective, the City’s proposed interpretation would make it virtually impossible for a housing project applicant to keep the very benefit - namely, vested rights - that the legislature intended to provide. The whole point of Government Code Section 65941.1 is to provide housing developers a new tool whereby they can lock in the development standards that will apply to their project and to hold on to that vesting until the project is approved. But this whole scheme becomes absurdly self defeating if it relies on applicants being able to perfectly respond to incomplete letters in only a few weeks. Consider the following possible scenario: an applicant submits a preliminary application for a housing development and then submits a full application less than 180 days later. The city then issues an incomplete letter which starts a 90-day clock. The applicant resubmits 30 days later.

The city then issues a second incomplete letter on day 60. The applicant resubmits on day 61. The city then finds one very minor mistake in the application and issues a third incomplete letter on day 90, 26 Government Code Section 65943(a) and (b). As HCD has stated: “The process of submitting an application for a housing development project can be iterative.” HCD Memo entitled “Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5)” (September 15, 2020), p. 8.

City of Beverly Hills
June 26, 2024

leaving the applicant with no days left to resubmit. Under the City’s interpretation, this scenario results in the applicant losing the vesting that was supposed to result from the preliminary application.

Moreover, this scenario illustrates how the City’s interpretation would invite all kinds of gamesmanship from local agencies and would not, in fact, give applicants 90 days to respond but would instead give them 90 days minus any time taken by the public agency to review the application. Several iterations of this scenario could be played out, but the point remains the same: the City’s interpretation would make this statute just about as self-defeating as possible since, as the Applicant’s experience clearly demonstrates, it is virtually impossible to submit a perfect application on the timeline the City proposes when the reviewing agency is intent on finding some reason to determine that the application is ultimately incomplete.

Finally, the City’s interpretation is nearly impossible to harmonize with the appeal provision in Government Code 65943(c). That section provides a right of appeal after the public agency issues a second incomplete letter and then gives the public agency 60 days to issue a written decision on the appeal. So, again, imagine the city issues a first incomplete letter, starting the 90-day clock. On day 1, the applicant resubmits. On day 31 the city issues a second incomplete letter, which gives the applicant a right to appeal. The applicant files an appeal on day 32. The public agency issues a written decision on day 92 confirming that the application is incomplete. Under the City’s interpretation, the 90 days have now expired and the preliminary application has terminated, defeating the whole point of creating a vesting process.

In short, in light of the broader context of the PSA, and the absurd practical implications of the City’s interpretation, Section 65941.1(d)(2) should be interpreted as limiting the time that an applicant has to respond to an incomplete letter to 90 days, but not as limiting the amount of resubmittals that an applicant can submit. In other words, an applicant has 90 days to resubmit each time they resubmit, but they can resubmit as many times as necessary.

HCD implicitly confirms this interpretation of Government Code Section 65941.1(d)(2) in its June 26 letter to Michael Forbes. On page 2 of the letter, HCD recounts the DPR Application timeline, including the City’s four Incomplete Letters, the Applicant’s three resubmittals, and the dates for each, which clearly show that it has been more than 90 days since the date of the First Incomplete Letter and that the City has still not determined that the DPR Application is complete. Nonetheless, HCD never states that the Preliminary Application has expired, confirms that the Project is subject to the Builder’s Remedy, and recommends the City grant the appeal and deem the application complete.

Every time the City has issued an incomplete letter regarding the DPR Application, the Applicant has always filed a resubmittal addressing the incomplete letter within 90 days of receipt of the incomplete letter. Consequently, the Preliminary Application has not expired and remains valid.

Date of Incomplete Letter Date of Resubmittal Days Between 1st - May 12, 2023 August 9, 2023 89 days
2nd - October 13, 2023 January 10, 2024 89 days
3rd - February 9, 2024 May 9, 2024 90 days
City of Beverly Hills
June 26, 2024

4th - June 7, 2024 Response Pending 20 days (as of hearing date) G. The City May Not Reject the Project or Refuse To Deem the Application Complete Due to the Applicant’s Failure to File a General Plan and/or Zone Change.

The Draft Resolution claims that “in order to process the DPR project application, the applicant must also submit applications for amendments to the City’s General Plan, and zoning ordinances and/or map for concurrent processing.” For the reasons stated below, the City cannot require the Applicant to submit these applications as a prerequisite to determining that the DPR Application is complete or as a requirement for approving the Project.

1. Due Process
First, the Draft Resolution claims that requesting these amendments is necessary to ensure that “the due process rights of surrounding property owners are respected and that those property owners may participate in the proceedings, including required public hearings, should they so choose.” This justification is completely frivolous. The DPR review process already requires a public hearing for which the same “surrounding property owners” will receive a notice and at which the same “surrounding property owners” can participate and voice their opinions about the Project. The City gives no explanation of why this required public hearing would not be sufficient to satisfy due process.

Additionally, there have already been several forms of public notification about the Project application, which have given the surrounding property owners and neighbors advanced notification before the City has even deemed the application complete and scheduled the actual public hearing for the DPR application.27

2. Need to Analyze Deviations
The Draft Resolution further states that the “substantial deviations from the General Plan and applicable R-4 zoning and other applicable ordinances as contemplated by the DPR project must be analyzed and processed pursuant to the City’s procedures.” This analysis can obviously be done without the Applicant requesting a general plan or zoning code amendment. All the City has to do is compare the submitted project with the existing general plan and zoning requirements, which is the same process that applies for every project reviewed by the City.
27 The Notice of A Pending Application was posted on the site on May 26, 2023 and mailed to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site. The Notice of Public Hearing for the appeal hearing was mailed on Friday, February 16, 2024 to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site. An on-site notice was posted on the subject property on Thursday, February 15, 2024. The project was also noticed in the Friday, February 16, 2024 edition of the Beverly Hills Courier and the Thursday, February 11, 2024 edition of the Beverly Hills Weekly. Lastly, courtesy emails were provided to all interested parties by the City advising them of the original and continued hearing dates.

City of Beverly Hills
June 26, 2024

3. HCD Technical Assistance
The Draft Resolution relies on a letter from HCD issued to the City of Compton (the “Compton Letter”) stating that the Housing Accountability Act does not prevent cities from requesting a general plan/zoning code amendment in order to avoid a legal non-conformity.”28 As a preliminary matter, the City has not stated that it is making this request “in order to avoid a legal non-conformity,” but rather gives the justifications in (1) and (2) above. But more importantly, HCD has significantly modified and clarified its conclusion in the Compton Letter through its June 26, 2024 letter to Michael Forbes.

The June 26 letter clarifies that requiring a general plan amendment and zone change for a Builder’s Remedy project violates the intent of the Housing Accountability Act:

While it remains true that the statutory language in the HAA does not expressly prevent the City from requesting or requiring legislative actions (e.g., a GPA/ZC) that would be required for similar projects where the Builder’s Remedy does not apply, requiring such action where the Builder’s Remedy does apply leads to an absurd outcome. As a result, HCD wishes to provide clarification on this topic.

The HAA is clear that a project protected by the Builder’s Remedy may not be disapproved for inconsistency with a jurisdiction’s general plan and zoning ordinance.

Accordingly, a jurisdiction that refuses to process or approve a project subject to the Builder’s Remedy due to the applicant’s refusal to submit a GPA/ZC requested or required by the jurisdiction to resolve such an inconsistency violates the intent of the HAA. …
In other words, the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the grounds of inconsistency. The HAA prohibits such a disapproval.
29 Furthermore, whereas the Compton Letter only discusses the Housing Accountability Act, the June 26 letter adds an analysis of what is permitted under the Permit Streamlining Act, which is especially relevant when determining the completeness of an application. Here, HCD concludes that a city cannot require a general plan amendment or zone change even if the project is not a Builder’s Remedy project if these items are not included on the application checklist, which is the case for DPR applications in Beverly Hills:

Even if a GPA/ZC were permitted under the HAA, the Permit Streamlining Act (PSA) prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist. The City cannot determine that an application is incomplete on the basis that it does not include a request for a GPA/ZC unless the 28 HCD Letter entitled “1601 W. El Segundo Blvd, Compton – Letter of Technical Assistance” (March 29, 2024). 29 Pages 2 and 3 of the letter (emphasis added).

City of Beverly Hills
June 26, 2024

submittal requirement checklist included a requirement for the applicant to submit a GPA/ZC. …
In this case, the City’s submittal checklist did not include a requirement for a GPA/ZC at the time of submittal, and therefore, the City cannot require either as part of the application.30
Accordingly, HCD has clearly confirmed the City cannot reject a Builders Remedy project such as this based on the applicant’s refusal to submit a General Plan Amendment and/or zone change.

Moreover, refusing to deem the application complete on this same basis violates the Permit Streamlining Act.

4. Housing Accountability Act
Although HCD’s June 26 letter brings significant clarity to this issue, it also valuable to evaluate the Housing Accountability Act in even greater detail. To begin, the statutory language of the Builder’s Remedy clearly preempts a local jurisdiction’s ability to deny a project based on inconsistencies with the applicable general plan and zoning code. Specifically, Government Code Section 65589.5(d)(5) prohibits a local jurisdiction from denying a housing development project for very low, low-, or moderate-income households on grounds of inconsistency with the general plan and zoning code where the jurisdiction does not have a compliant housing element. Furthermore, Government Code Section 65589.5(d)(5)(A) prohibits a local jurisdiction from denying a housing development project for very low, low-, or moderate-income households on grounds of inconsistency with the general plan land use element if the project is located on a site that is identified in the housing element as suitable for affordable housing and the proposed project is consistent with the density specified in the housing element. The intent of these provisions is clear: to completely remove consistency with the general plan and zoning code as an allowable consideration when reviewing these projects.

The fact that a city, like the City of Compton, may desire an amendment to its general plan and zoning code “in order to avoid a legal non-conformity if/when the project is approved” is not relevant to how a Builder’s Remedy project must be considered by the City. First of all, the mere fact that a project may result in a non-conformity does not harm the jurisdiction in any way. Nearly all local jurisdictions, including the City of Beverly Hills,31 have provisions in their zoning codes addressing nonconforming uses that generally limit the ability of such uses to be expanded and establish other parameters to address the potential impacts of such uses. Furthermore, local jurisdictions have another perfectly satisfactory option for avoiding an ongoing non-conformity: they can initiate and process a general plan and zoning code amendment on their own, without making the applicant do it. In the June 26 letter, HCD acknowledges cities’ “desire to have development consistent with general plans and zoning” and suggests that “to that end, jurisdictions may undertake a GPA/ZC independently from a development application.” It then goes on to offer suggestions for how that could be done.32 Thus, given that (a) general plan and zoning code inconsistency cannot be a ground for denying a Builder’s Remedy project, and (b) local jurisdictions have a perfectly adequate way to address legal 30 Pages 3 and 4 of the letter (emphasis added). 31 See BHMC Section 10-3-4101. 32 See footnote 4 on page 3 of the letter.

City of Beverly Hills
June 26, 2024

non-conformities without making applicants for Builder’s Remedy projects apply for a general plan and zoning code amendment, requiring Builder’s Remedy applicants to apply for a general plan and zoning code amendments can only be motivated by a jurisdiction’s desire to delay the processing of the project, to increase the costs of the application, and to introduce uncertainly into the project review process - all things that the HAA is clearly intended to avoid.

The Compton Letter attempted to address these issues by adding the caveat that “if insisting on the GPA or Zoning Change delays project approval or increases the cost of the approval process, a violation of the HAA would result.” This assumes there is a possible scenario in which delay and increased cost would not result, but in our experience working on these types of approvals, we do not believe such a scenario exists. To begin, local jurisdictions charge additional processing/application fees for general plan and zoning code amendments, which obviously increases the costs of the approval process for the applicant. For example, the City of Beverly Hills recently charged an applicant $93,423.73 to process a general plan amendment, zone text amendment and DPR. 33 Even if all
application fees were waived, an applicant would still incur additional consultant and/or attorney fees to prepare the supplemental application materials, which may be extensive. Builder’s Remedy projects often do not fit neatly within an existing general plan land use designation or zoning district, so the process is often not as simple as rezoning the Builder’s Remedy site from existing zone A to existing zone B. Instead, an entirely new general plan land use designation, zoning district, and/or specific plan would potentially need to be drafted in a way that would be specifically tailored to be consistent with the proposed project. This is not a simple task and there is no real-world scenario in which creating these documents does not add delay and additional cost to the project. As another example, state law mandates that a general plan amendment undergo a 90-day (at minimum) process that would not otherwise be required for other types of applications because local jurisdictions are required to engage in tribal consultation prior to any amendment of a general plan and tribes have 90 days to request consultation after being contacted by the jurisdiction.34 Furthermore, general plan and zoning code amendments must be considered by the Planning Commission (or equivalent body) and the legislative body of the jurisdiction before adoption,35 and changes to the zoning code do not become effective until 30 days after they have been adopted,36 whereas a requirement for legislative approval and delayed ordinance effective dates would not be relevant for other housing development project approvals.

Legislative actions (unlike quasi-judicial permits) are also subject to referendum which could result in substantial delay, cost, and existential risk to any project. As an additional consideration, state law provides that a local jurisdiction’s land use element may generally only be amended up to four times during a single calendar year, which means that a project may need to wait until the following calendar year for the amendment to be approved if the land use element has already been amended four times, or may need to wait until a later hearing date if the jurisdiction is consolidating multiple requests for general plan amendments.37 In short, the “no delay or extra cost” caveat ultimately swallows the 33 This was for planning application PL2400136. 34 Government Code Section 65352.3(a). 35 Government Code Section 65353(a), 65355, 65854, and 65856. 36 Government Code Section 36937.
37 Government Code Section 65358(b), 65302(a) (land use element is a mandatory element). There is an exception to the “four times” rule for residential developers where at least 25% of the units will be occupied by lower or moderate income families, but this exception does not apply to most Builder’s Remedy projects because they are City of Beverly Hills
June 26, 2024

Compton Letter’s initial conclusion since there is seemingly no real-world scenario where the caveat doesn’t apply.

Finally, requiring a general plan and zoning code amendment for a Builder’s Remedy project inappropriately requires a fully discretionary legislative approval to obtain an entitlement that would otherwise only be subject to extremely limited discretion. Short of a completely ministerial process, a Builder’s Remedy project is supposed to be subject to one of the most limited-discretion review processes under state law. The discretion of a decision making body considering a Builder’s Remedy project is so constrained by state law that the decisionmaker can’t even deny the project on the ground that is in direct conflict with the applicable general plan and zoning code. Contrary to this extremely limited scope of review, legislative decisions – including general plan amendments and zoning changes – are subject to extremely broad discretion and are therefore entirely out of place in the processing of a Builder’s Remedy application.

5. Permit Streamlining Act
It is also valuable to look in further detail at the Permit Streamlining Act (PSA). The PSA is exceedingly clear that a city cannot require an applicant to submit an item as part of an application if it is not on the completeness checklist for that application. When a local jurisdiction receives an application for a discretionary housing development project, it is required to process that application in strict compliance with the procedures and timelines in the PSA. The PSA begins with a statement of legislative findings, leaving no doubt regarding the purpose and intent of its requirements: “The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.”38
The very first sentence of the substantive provisions of the PSA makes good on this intent for application requirements to be clear and specific: “Each public agency shall compile one or more lists that shall specify in detail the information that will be required from any applicant for a development project.”39 (Government Code Section 65940(a)(1), emphasis added.) Section 65941(a) continues: “The information compiled pursuant to Section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”
This list of requirements for a complete application described in Section 65941(a) becomes essential during the initial completeness review and potential resubmittal process, per Section 65943(a):
“Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. If the application is determined to be incomplete, the lead agency shall provide the applicant with an exhaustive list of only required to restrict 20% of their units for lower-income households. (Government Code Section 65358(c), 65589.5(h)(3).)
38 Government Code Section 65921 (emphasis added).
39 Section 65940(d) specifically states that ““development project” includes a housing development project as defined in paragraph (3) of subdivision (b) of Section 65905.5.” City of Beverly Hills
June 26, 2024

items that were not complete. That list shall be limited to those items actually required on the lead agency's submittal requirement checklist.”40
The previous sentence (in bold italics) was added by SB 330, the Housing Crisis Act of 2019, indicating that the legislature specifically had housing development projects in mind when this language was added. The Housing Crisis Act also added language to the PSA adding additional assurances that applicants for housing projects would receive clear information from cities about application requirements: “Each city and each county shall make copies of any list compiled pursuant to Section 65940 with respect to information required from an applicant for a housing development project, as that term is defined in paragraph (2) of subdivision (h) of Section 65589.5, available both (1) in writing to those persons to whom the agency is required to make information available under subdivision (a) of that section, and (2) publicly available on the internet website of the city or county.”41 In short, a jurisdiction may only require an applicant to submit the items explicitly identified on the application checklist. If the submitted application includes all of the items on the checklist, then the jurisdiction must determine that the application is complete. This means that a city cannot determine that an application is incomplete on the basis that it does not include a request for a general plan amendment or zone change unless the application completeness checklist explicitly requires the applicant to submit a general plan amendment or zone change for the application to be complete.

As an additional consideration, it should be noted that the PSA (Government Code Sections 65940 and 65941) establishes clear criteria for a jurisdiction to use to determine whether or not an application is complete. There is an important distinction between the criteria for deeming an application complete and the criteria for actually approving an application (i.e., determining the merits of the application). State law clearly envisions general plan and zoning consistency as merits issues, not application completeness issues. This can be seen by reading the PSA in the context of the HAA, particularly Government Code Section 65589.5(j)(2), which states as follows:

If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units.
40 This is confirmed on page 3 of the HCD’s June 26 letter. 41 Government Code Section 65943(f).

City of Beverly Hills
June 26, 2024

Under this scheme the applicant submits the application, they provide all the information needed for the jurisdiction to determine whether the application is complete, and then – within either 30 or 60 days after the application is determined to be complete – the city must inform the applicant if the proposed project is inconsistent with any applicable development standards, including any standards set forth in the general plan and zoning code.

In other words, state housing law envisions two steps: the application completeness stage and the evaluation stage. During the application completeness stage, the jurisdiction may only assess whether the applicant has submitted an application that includes all of the required checklist information to allow the jurisdiction to evaluate the proposed project against applicable development standards (i.e., a complete application). If not identified on the jurisdiction’s application checklist, the applicant cannot be compelled to make a request for a general plan amendment or zone change as part of this application completeness stage.

6. A General Plan and Zoning Code Amendment Are Not Requirements on the DPR Application Checklist
The Applicant filed the DPR Application using the City’s “Development Plan Review Planning Review Application” (“DPR Application Form”). Section 5 of the DPR Application Form is entitled “Submittal Requirements & Checklist.” This is the application submittal checklist that the City is required to provide to applicants under the PSA to inform them of what materials and information they must submit for a complete application. Significantly, the “Submittal Requirements & Checklist” does not require an applicant to submit a request for a general plan amendment or zone change. Consequently, regardless of whether the application is subject to the Builder’s Remedy, the PSA prohibits the City from requiring the Applicant to submit a request for a general plan and zoning code amendment as a requirement for determining that the DPR Application is complete.

Notably the City updated and revised its DPR Application Form and converted it to a consolidated entitlement form on May 2nd 2024 (long after the Applicant submitted the Project’s DPR Application). The new form more broadly encompass a range of entitlements that could be applicable to commercial, mixed use or multi family residential projects – including identifying the possible need for a General Plan Amendment and zone change. The fact City updated its entitlement form to address this issue reinforces that the City cannot now require this Applicant to submit a General Plan Amendment or zone change because this Project’s DPR Application Form made no such reference in the application checklist of the potential need for those legislative approvals.

The City Is Effectively Denying the Project and Is Acting in Bad Faith If the City Council finds that the Builder’s Remedy does not apply to the Project and continues to require the Applicant to submit a request for a general plan amendment and zone change, then these actions will constitute an illegal disapproval of the Project under the Housing Accountability Act. The Los Angeles Superior Court held only a few months ago that the La Cañada Flintridge City Council had disapproved an application for a Builder’s Remedy project where the City Council denied an appeal of the City’s incompleteness determination, determined that the Builder’s Remedy did not apply to the City of Beverly Hills
June 26, 2024

project, and determined that the project’s preliminary application did not vest the Builder’s Remedy.42 HCD’s June 26 letter further clarifies that “the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the ground of inconsistency. The HAA prohibits such a disapproval.”43 The Housing Accountability Act prohibits a city from disapproving a housing development project for very low, low-, or moderate-income households - which this Project is - unless it makes one of the findings in Government Code Section 65589.5(d)(1)-(5). The Draft Resolution does not include any of these findings, nor are there any grounds to make any of these findings. Consequently, if the City Council adopts the Draft Resolution, it will be acting in direct violation of state law.44 If a court finds that the City violated the Housing Accountability Act, the court will order the City to comply with the Housing Accountability Act within 60 days. Furthermore, the court may issue an order directing the City to approve the Project if it finds that the City acted in bad faith when it disapproved the Project.
45 The court will also require the City to pay the Applicant’s attorney’s fees and court costs.46 If the City fails to comply with the Court’s order, the court will impose fines on the City in the minimum amount of $10,000 per housing unit in the Project, which in this case would result in a minimum fine of $1,650,000.47 Finally, if the court finds that the City acted in bad faith when it disapproved the project and failed to carry out the court’s orders, the court will multiply the fine by a factor of five, which would result in a minimum fine of $8,250,000.48 “Bad faith” under the Housing Accountability Act includes, but is not limited to, “an action that is frivolous or otherwise entirely without merit.”49 As demonstrated in this letter, and as independently verified and supported by HCD’s June 26, 2024 letter, the City’s determination that the DPR Application is incomplete, its continued insistence that the Applicant must apply for a general plan and zoning code amendment, and it position that the Builder’s Remedy does not apply to this Project are, indeed, frivolous and entirely without merit.

Conclusion
For the foregoing reasons we respectfully request that the City Council grant the Appeal, determine that DPR Application is complete, and process the DPR Application in compliance with the requirements of the Builder’s Remedy.
42 California Housing Defense Fund v. City of La Cañada Flintridge, Case No. 23STCP02614, Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief (Filed March 4, 2024), p. 11-13. 43 Page 3 of the letter. 44 Government Code Section 65589.5(k)(1)(A)(i)(I). 45 Government Code Section 65589.5(k)(1)(A)(ii). 46 Id. 47 Government Code Section 65589.5(k)(1)(B). 48 Government Code Section 65589.5(l). 49 Id.

City of Beverly Hills
June 26, 2024

Sincerely,
Dave Rand
Dave Rand
Partner
of RAND PASTER & NELSON, LLP
CC: Mayor Lester Friedman <[email protected]>
Vice Mayor Sharona R. Nazarian, PsyD <[email protected]> Councilmember John A. Mirisch <[email protected]> Councilmember Craig A. Corman <[email protected]> Councilmember Mary N. Wells <[email protected]>
David Snow <[email protected]>
Michael Forbes <[email protected]>
Masa Alkire <[email protected]>
Edgar Arroyo <[email protected]>
Attachments:

HCD Letter to Michael Forbes, entitled “125-129 Linden Drive, Beverly Hills - Letter of Support and Technical Assistance” (June 26, 2024).

EXHIBIT B

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
June 26, 2024
Michael Forbes
Director of Community Development
City of Beverly Hills
Via: [email protected]
455 N Rexford Drive
Beverly Hills, CA 90210
Dear Michael Forbes:

RE: 125-129 Linden Drive, Beverly Hills – Letter of Support and Technical Assistance
This letter provides technical assistance to the City of Beverly Hills (City) regarding the proposed development at 125-129 Linden Drive (Project). This assistance is based upon an inquiry submitted through the California Department of Housing and Community Development’s (HCD) Housing Accountability Unit (HAU) online portal by the Project applicant regarding the ability of the City to require a general plan amendment for the Project. The Project has vested the protections of Government Code section 65589.5, subdivision (d)(5), also known colloquially as the “Builder’s Remedy” under the Housing Accountability Act (HAA).

Background
HCD understands that the Project proposes to construct 165 units on the site, of which 33 units (20 percent of the overall unit count) will be restricted to low-income households. HCD also understands the applicant submitted a preliminary application for the Project pursuant to Government Code section 65941.1 on October 24, 2022. HCD did not certify that the City’s housing element was substantially compliant with state law until May 1, 2024. Therefore, at the time the Project’s preliminary application was filed, the City would not have been able to make the finding in Government Code section 65589.5, subdivision (d)(5), to deny the Project. The Project vested the noncompliant status of the housing element at the time of submittal in October 2022.1 1 This assumes that the preliminary application has not expired and that the Project has not been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).

Michael Forbes, Director of Community Development, City of Beverly Hills

HCD understands the applicant then filed a full Development Plan Review application for the Project on April 14, 2023, which was within the six-month statutory time period required by Government Code section 65941.1, subdivision (d), to maintain the vested rights conferred by the preliminary application. The City issued an incomplete letter on May 12, 2023, instructing the applicant to pursue a general plan amendment and zone change (GPA/ZC). On August 9, 2023, the applicant submitted a response to comments contained in the incomplete letter, and on October 13, 2023, the City restated that the Project must submit for a GPA/ZC.
2 The applicant provided a second response letter on
January 10, 2024, before eventually requesting an appeal of the City’s incompleteness letter on January 11, 2024. An incomplete letter for the January response letter was provided on February 9, 2024. A third resubmittal was received on May 9, 2024, with the incompleteness letter sent on June 7, 2024. The appeal is scheduled to be heard by the City Council on June 27, 2024.

General Plan Amendment and/or Zone Change Requirements and the Housing Accountability Act’s Builder’s Remedy
HCD issued a related letter to the City of Compton on March 28, 2024 that answered the question: Does the HAA prevent a city from requiring that a project application include a request to amend the general plan/zoning code in order to avoid a legal nonconformity if/when the project is approved? In short, HCD answered that no provision in the HAA prevents a local government from requesting a general plan/zoning code amendment to avoid a legal non-conformity, and the letter went on to warn that such a requirement may lead to a violation of the HAA.

While it remains true that the statutory language in the HAA does not expressly prevent the City from requesting or requiring legislative actions (e.g., a GPA/ZC) that would be required for similar projects where the Builder’s Remedy does not apply, requiring such action where the Builder’s Remedy does apply leads to an absurd outcome. As a result, HCD wishes to provide clarification on this topic.

The HAA is clear that a project protected by the Builder’s Remedy may not be disapproved for inconsistency with a jurisdiction’s general plan and zoning ordinance.3 Accordingly, a jurisdiction that refuses to process or approve a project subject to the Builder’s Remedy due to the applicant’s refusal to submit a GPA/ZC requested or required by the jurisdiction to resolve such an inconsistency violates the intent of the HAA.
2 Note: The Applicant submitted the materials via email to the City on August 9, 2023, but the City later responded claiming they never received the August 9, 2023 submittal because it had been blocked by its email security system. At the request of the City, the Applicant then provided another electronic submission on September 18, 2023, which the City received. The City started the 30-day review clock from this date.
3 Gov. Code, § 65589.5, subd. (d)(5).

Michael Forbes, Director of Community Development, City of Beverly Hills

Indeed, where a jurisdiction cannot lawfully disapprove a project for inconsistency with the general plan or zoning ordinance, it would be illogical if the jurisdiction could lawfully disapprove a project for failing to resolve that very inconsistency. In other words, the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the grounds of inconsistency. The HAA prohibits such a disapproval.4 Determining Application Completeness under the Permit Streamlining Act Even if a GPA/ZC were permitted under the HAA, the Permit Streamlining Act (PSA)5 prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist. The City cannot determine that an application is incomplete on the basis that it does not include a request for a GPA/ZC unless the submittal requirement checklist included a requirement for the applicant to submit a GPA/ZC.

In determining what constitutes a complete application, the City is subject to the limitations imposed by the PSA. When the City receives an application for a discretionary housing development project, it is required to process the application in compliance with the procedures and timelines stated in the PSA. The PSA states that “[e]ach public agency shall compile one or more lists that shall specify in detail the information that will be required from any applicant for a development project,”6 and furthermore, that “[t]he information compiled pursuant to Government Code section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”7 For a completeness determination, the City shall provide a list of items that were not complete and “[t]hat list shall be limited to those items actually required on the lead agency's submittal requirement checklist.”8
4 HCD understands the desire to have development consistent with general plans and zoning, and to that end, jurisdictions may undertake a GPA/ZC independently from a development application. Jurisdictions should be advised that it may not be possible to process a projectspecific GPA/ZC concurrently with project review, even when a jurisdiction is initiating the GPA/ZC itself. For a jurisdiction in which there may be multiple applications for projects subject to the Builder’s Remedy, and the jurisdiction wishes to achieve general plan and/or zoning consistency, it may choose to “batch” amendments after project development applications are approved to ensure housing development projects are not unduly delayed or otherwise impacted. 5 Gov. Code, § 65920 et seq.
6 Gov. Code, § 65940, subd. (a)(1).
7 Gov. Code, § 65941, subd. (a).
8 Gov. Code, § 65943, subd. (a).

Michael Forbes, Director of Community Development, City of Beverly Hills

In this case, the City’s submittal checklist did not include a requirement for a GPA/ZC at the time of submittal, and therefore, the City cannot require either as part of the application.9
Conclusion
Under the HAA, the City should not require applicants of projects protected by the Builder’s Remedy to seek amendments to the City’s general plan or zoning code. Even if such amendments could somehow be required without violating the intent of the HAA, the PSA prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist.

For the proposed Project on Linden Drive, the City Council should grant the appeal and direct City staff to process the Project without further delay and without imposing a requirement for a GPA/ZC.

If you have any questions regarding the content of this letter or would like additional technical assistance, please contact Bentley Regehr at [email protected].

Sincerely,
Shannan West
Housing Accountability Unit Chief
9 Requiring a GPA/ZC as part of the project application inherently requires a determination of whether the project is consistent with the general plan and zoning code. However, the HAA suggests that a determination of consistency may not be permitted during the application completeness determination phase but must instead occur after the application completeness determination. (Gov. Code, § 65589.5, subds. (j)(2)(A), (h)(10).) Therefore, it may be inappropriate to require a GPA/ZC as part of a determination of application completeness.

June 7th, 2024
Beverly Hills City City Council
[email protected]
Dear Beverly Hills City Councilmembers,
We are writing to express our support for the proposed 165-unit mixed-use development, which includes 33 affordable units, at 125-129 S. Linden Drive. This project presents a significant opportunity to address our city's pressing need for affordable housing while revitalizing an underutilized space. We urge the city to approve the project's application and allow it to proceed without further delay.

This project will enhance the surrounding community by replacing surface parking lots with living spaces, a 73-room hotel, and a restaurant. The project will also move parking to a two-level underground parking structure and not result in any residential displacement. Grocery stores, shopping, restaurants, schools, and Beverly Gardens Park are within walking distance, making this an excellent location for new housing.

Transforming the current parking lot into a vibrant space represents a forward-thinking approach to urban planning.

The proposed development at 125-129 S. Linden Drive represents a crucial and time-sensitive step towards meeting our city's housing obligations and promoting economic growth. I urge the City Council to approve this project and demonstrate Beverly Hills' commitment to inclusive and sustainable development. Failure to approve the project undermines our compliance with state housing laws and risks legal consequences, as highlighted by Californians for Homeownership.

Best Regards,
Azeen Khanmalek Jaime Del Rio Tami Kagan-Abrams
AHLA Executive Director AHLA Director of Organizing AHLA Project Director 1 Edgar Arroyo
From: Alan Block < >
Sent: Wednesday, June 26, 2024 10:39 AM
To: Edgar Arroyo
Subject: FW: 125-129 South Linden Drive
퓻퓼퓽hd/KE͗
yd
ZE>^
E
Z퓻퓼퓽
ĞĐĂƵƟŽƵƐǁŚĞŶĐůŝĐŬŝŶŐůŝŶŬƐŽƌŽƉĞŶŝŶŐĂƩĂĐŚŵĞŶƚƐ͘sĞƌŝĨLJƚŚĞƐĞŶĚĞƌΖƐĞŵĂŝůĂĚĚƌĞƐƐĂŶĚďĞŽŶƚŚĞůŽŽŬŽƵƚĨŽƌƉŚŝƐŚŝŶŐ ĂƩĞŵƉƚƐ͘


&ƌŽŵ͗ůĂŶůŽĐŬ
^ĞŶƚ͗tĞĚŶĞƐĚĂLJ͕:ƵŶĞϮϲ͕ϮϬϮϰϭϬ͗ϯϲD
dŽ͗ůĨƌŝĞĚŵĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ƐŶĂnjĂƌŝĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ũŵŝƌƐĐŚΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ĐĐŽƌŵĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ ŵǁĞůůƐΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ
Đ͗ŵĨŽƌďĞƐΛďĞǀĞƌůLJŚŝŝůƐ͘ŽƌŐ͖ŵĂůŬŝƌĞΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ĞĂƌƌŽLJŽΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ŬŐŽůĚŵĂŶΛŬĂŐůĞŐĂů͘ĐŽŵ ^ƵďũĞĐƚ͗&t͗ϭϮϱͲϭϮϵ^ŽƵƚŚ>ŝŶĚĞŶƌŝǀĞ

ĞĂƌDĂLJŽƌ&ƌŝĞĚŵĂŶĂŶĚ,ŽŶŽƌĂďůĞŽƵŶĐŝůŵĞŵďĞƌƐ͗

DLJǁŝĨĞ:ĂŶĂŶĚ/ŚĂǀĞƌĞƐŝĚĞĚĂƚ >ŝŶĚĞŶƌŝǀĞƐŝŶĐĞϭϵϴϰ͘ 
tĞǁŝůůŶŽƚďĞĂďůĞƚŽĂƩĞŶĚƚŚĞŝƚLJŽƵŶĐŝůŵĞĞƟŶŐƐĐŚĞĚƵůĞĚĨŽƌƚŽŵŽƌƌŽǁĞǀĞŶŝŶŐ:ƵŶĞϮϳƚŚƚŽĐŽŶƚĞƐƚĂŶĚ ǀĞŚĞŵĞŶƚůLJŽƉƉŽƐĞƚŚĞĂƉƉůŝĐĂŶƚ͛ƐĂƉƉĞĂůŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚŝƚƐƉƌĞǀŝŽƵƐůLJƐƵďŵŝƩĞĚĂƉƉůŝĐĂƟŽŶƚŽĐŽŶƐƚƌƵĐƚϮϬϬ ĨŽŽƚŚŝŐŚƐƚƌƵĐƚƵƌĞ;ƐͿ͕ŝŶĐůƵĚŝŶŐĂϳϯƌŽŽŵŚŽƚĞů͕ƌĞƐƚĂƵƌĂŶƚĂŶĚϭϲϱĂƉĂƌƚŵĞŶƚƵŶŝƚƐŽŶƚŚĞƐŽƵƚŚǁĞƐƚĐŽƌŶĞƌŽĨ>ŝŶĚĞŶ ƌŝǀĞĂŶĚtŝůƐŚŝƌĞŽƵůĞǀĂƌĚ͕ǁĂƐŝŶĐŽŵƉůĞƚĞ͘

ŌĞƌƌĞǀŝĞǁŝŶŐƚŚĞƐƚĂīƌĞƉŽƌƚŽŶƚŚŝƐŵĂƩĞƌǁĞƚŽƚĂůůLJĂŐƌĞĞǁŝƚŚƚŚĞďĂƐŝƐŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚƚŚĞĂƉƉůŝĐĂƟŽŶ ƐƵďŵŝƩĞĚǁĂƐŝŶĐŽŵƉůĞƚĞ͘tĞĐŽŵŵĞŶĚŝƚLJƐƚĂīĨŽƌƉĞƌĨŽƌŵŝŶŐƚŚĞŶĞĐĞƐƐĂƌLJƚŚŽƌŽƵŐŚƌĞǀŝĞǁŽĨƚŚĞƐƵďŵŝƩĞĚ ĂƉƉůŝĐĂƟŽŶǁŚŝĐŚŝƐƚŽƚĂůůLJĂƌƌĞŶƚĂŶĚŝŶĐŽŶƐŝƐƚĞŶƚǁŝƚŚŝƚLJ͛Ɛ'ĞŶĞƌĂůWůĂŶĂŶĚŽŶŝŶŐKƌĚŝŶĂŶĐĞƐ͘ 
dŚĞĂƉƉůŝĐĂŶƚ͛ƐĂƉƉĞĂůŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĞĂƉƉůŝĐĂƟŽŶƐŚŽƵůĚďĞĚĞŶŝĞĚĂŶĚƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚƚŚĞƉƌŽũĞĐƚŝƐ ŝŶĐŽŵƉůĞƚĞƐŚŽƵůĚďĞĐŽŵĞĮŶĂů͘

WůĞĂƐĞŝŶĐůƵĚĞƚŚŝƐĞŵĂŝůĂƐƉĂƌƚŽĨƚŚĞĂĚŵŝŶŝƐƚƌĂƟǀĞƌĞĐŽƌĚŝŶƚŚŝƐŵĂƩĞƌ͘ 
dŚĂŶŬLJŽƵ͘

ZĞƐƉĞĐƞƵůůLJƐƵďŵŝƩĞĚ͕

ůĂŶZŽďĞƌƚůŽĐŬ
zŽƵĚŽŶΖƚŽŌĞŶŐĞƚĞŵĂŝůĨƌŽŵĂůĂŶΛďůŽĐŬůĂǁ͘ŶĞƚ͘>ĞĂƌŶǁŚLJƚŚŝƐŝƐŝŵƉŽƌƚĂŶƚ 1 Edgar Arroyo
From:

Sent: Wednesday, June 26, 2024 3:08 PM
To: Edgar Arroyo
Subject: Linden Project
΀zŽƵĚŽŶΖƚŽŌĞŶŐĞƚĞŵĂŝůĨƌŽŵ ͘>ĞĂƌŶǁŚLJƚŚŝƐŝƐŝŵƉŽƌƚĂŶƚĂƚ ŚƩƉƐ͗ͬͬĂŬĂ͘ŵƐͬ>ĞĂƌŶďŽƵƚ^ĞŶĚĞƌ/ĚĞŶƟĮĐĂƟŽŶ΁
퓻퓼퓽hd/KE͗
yd
ZE>^
E
Z퓻퓼퓽
ĞĐĂƵƟŽƵƐǁŚĞŶĐůŝĐŬŝŶŐůŝŶŬƐŽƌŽƉĞŶŝŶŐĂƩĂĐŚŵĞŶƚƐ͘sĞƌŝĨLJƚŚĞƐĞŶĚĞƌΖƐĞŵĂŝůĂĚĚƌĞƐƐĂŶĚďĞŽŶƚŚĞůŽŽŬŽƵƚĨŽƌ ƉŚŝƐŚŝŶŐĂƩĞŵƉƚƐ͘
dŽtŚŽŵ/ƚDĂLJŽŶĐĞƌŶ͕
tĞĂƌĞĨŽƵƌŐĞŶĞƌĂƟŽŶƐůŝǀŝŶŐŝŶĞǀĞƌůLJ,ŝůůƐƐŝŶĐĞƚŚĞĞĂƌůLJϭϵϲϬ͛Ɛ͘EĞĞĚůĞƐƐƚŽƐĂLJƚŚĂƚƚŚĞƌĞŚĂǀĞďĞĞŶĂŐƌĞĂƚĚĞĂůŽĨ ĐŚĂŶŐĞƐǁŝƚŚŝŶƚŚŝƐƟŵĞĨƌĂŵĞ͘
,ŽǁĞǀĞƌ͕ƚŚŝƐ>ŝŶĚĞŶWƌŽũĞĐƚĚŽĞƐĂďƐŽůƵƚĞůLJŶŽƚŚŝŶŐƚŽĞŶŚĂŶĐĞŽƌŝŵƉƌŽǀĞŽƵƌĐŝƚLJ tŚĂƚƚŚŝƐƉƌŽũĞĐƚǁŝůůŐŝǀĞƵƐŝƐ͖ŽǀĞƌĐƌŽǁĚŝŶŐ͕ƚƌĂĸĐĐŽŶŐĞƐƟŽŶ͕ŽǀĞƌďƵƌĚĞŶŽƵƌƉƵďůŝĐƵƟůŝƟĞƐͲŝŶĐůƵĚŝŶŐǁĂƚĞƌ͘/ƚǁŝůů ĚĞĮŶŝƚĞůLJƌĞĚƵĐĞƚŚĞƋƵĂůŝƚLJŽĨůŝĨĞĨŽƌƚŚŽƐĞƚŚĂƚůŝǀĞĂŶLJǁŚĞƌĞŶĞĂƌƚŚĞƌĞŽƌŶĞĞĚƚŽĚƌŝǀĞŶĞĂƌƚŚĞƌĞ͘ůůŽĨƵƐǁŚŽ ƌĞƐŝĚĞŝŶĞǀĞƌůLJ,ŝůůƐǁŝůůĚŝƐƉƌŽƉŽƌƟŽŶĂůůLJďĞĂƌƚŚĞŶĞŐĂƟǀĞŝŵƉĂĐƚƐŽĨƚŚŝƐƉƌŽũĞĐƚ͘ tŚĂƚĚŽǁĞŐĞƚŝŶƌĞƚƵƌŶͲĂŶŽǀĞƌƐŝnjĞĚ͕ŝŶĂƉƉƌŽƉƌŝĂƚĞƉƌŽũĞĐƚƚŚĂƚǁĞǁŝůůďĞƐƚƵĐŬǁŝƚŚĨŽƌŐĞŶĞƌĂƟŽŶƐƚŽĐŽŵĞ ŽďďĞ&ĞůƐ
WĞĐŬƌ
^ĞŶƚĨƌŽŵŵLJŝWŚŽŶĞ
1 Edgar Arroyo
From: Alan Block < >
Sent: Wednesday, June 26, 2024 10:39 AM
To: Edgar Arroyo
Subject: FW: 125-129 South Linden Drive
퓻퓼퓽hd/KE͗
yd
ZE>^
E
Z퓻퓼퓽
ĞĐĂƵƟŽƵƐǁŚĞŶĐůŝĐŬŝŶŐůŝŶŬƐŽƌŽƉĞŶŝŶŐĂƩĂĐŚŵĞŶƚƐ͘sĞƌŝĨLJƚŚĞƐĞŶĚĞƌΖƐĞŵĂŝůĂĚĚƌĞƐƐĂŶĚďĞŽŶƚŚĞůŽŽŬŽƵƚĨŽƌƉŚŝƐŚŝŶŐ ĂƩĞŵƉƚƐ͘


&ƌŽŵ͗ůĂŶůŽĐŬ
^ĞŶƚ͗tĞĚŶĞƐĚĂLJ͕:ƵŶĞϮϲ͕ϮϬϮϰϭϬ͗ϯϲD
dŽ͗ůĨƌŝĞĚŵĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ƐŶĂnjĂƌŝĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ũŵŝƌƐĐŚΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ĐĐŽƌŵĂŶΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ ŵǁĞůůƐΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ
Đ͗ŵĨŽƌďĞƐΛďĞǀĞƌůLJŚŝŝůƐ͘ŽƌŐ͖ŵĂůŬŝƌĞΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ĞĂƌƌŽLJŽΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ͖ŬŐŽůĚŵĂŶΛŬĂŐůĞŐĂů͘ĐŽŵ ^ƵďũĞĐƚ͗&t͗ϭϮϱͲϭϮϵ^ŽƵƚŚ>ŝŶĚĞŶƌŝǀĞ

ĞĂƌDĂLJŽƌ&ƌŝĞĚŵĂŶĂŶĚ,ŽŶŽƌĂďůĞŽƵŶĐŝůŵĞŵďĞƌƐ͗

DLJǁŝĨĞ:ĂŶĂŶĚ/ŚĂǀĞƌĞƐŝĚĞĚĂƚ >ŝŶĚĞŶƌŝǀĞƐŝŶĐĞϭϵϴϰ͘ 
tĞǁŝůůŶŽƚďĞĂďůĞƚŽĂƩĞŶĚƚŚĞŝƚLJŽƵŶĐŝůŵĞĞƟŶŐƐĐŚĞĚƵůĞĚĨŽƌƚŽŵŽƌƌŽǁĞǀĞŶŝŶŐ:ƵŶĞϮϳƚŚƚŽĐŽŶƚĞƐƚĂŶĚ ǀĞŚĞŵĞŶƚůLJŽƉƉŽƐĞƚŚĞĂƉƉůŝĐĂŶƚ͛ƐĂƉƉĞĂůŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚŝƚƐƉƌĞǀŝŽƵƐůLJƐƵďŵŝƩĞĚĂƉƉůŝĐĂƟŽŶƚŽĐŽŶƐƚƌƵĐƚϮϬϬ ĨŽŽƚŚŝŐŚƐƚƌƵĐƚƵƌĞ;ƐͿ͕ŝŶĐůƵĚŝŶŐĂϳϯƌŽŽŵŚŽƚĞů͕ƌĞƐƚĂƵƌĂŶƚĂŶĚϭϲϱĂƉĂƌƚŵĞŶƚƵŶŝƚƐŽŶƚŚĞƐŽƵƚŚǁĞƐƚĐŽƌŶĞƌŽĨ>ŝŶĚĞŶ ƌŝǀĞĂŶĚtŝůƐŚŝƌĞŽƵůĞǀĂƌĚ͕ǁĂƐŝŶĐŽŵƉůĞƚĞ͘

ŌĞƌƌĞǀŝĞǁŝŶŐƚŚĞƐƚĂīƌĞƉŽƌƚŽŶƚŚŝƐŵĂƩĞƌǁĞƚŽƚĂůůLJĂŐƌĞĞǁŝƚŚƚŚĞďĂƐŝƐŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚƚŚĞĂƉƉůŝĐĂƟŽŶ ƐƵďŵŝƩĞĚǁĂƐŝŶĐŽŵƉůĞƚĞ͘tĞĐŽŵŵĞŶĚŝƚLJƐƚĂīĨŽƌƉĞƌĨŽƌŵŝŶŐƚŚĞŶĞĐĞƐƐĂƌLJƚŚŽƌŽƵŐŚƌĞǀŝĞǁŽĨƚŚĞƐƵďŵŝƩĞĚ ĂƉƉůŝĐĂƟŽŶǁŚŝĐŚŝƐƚŽƚĂůůLJĂƌƌĞŶƚĂŶĚŝŶĐŽŶƐŝƐƚĞŶƚǁŝƚŚŝƚLJ͛Ɛ'ĞŶĞƌĂůWůĂŶĂŶĚŽŶŝŶŐKƌĚŝŶĂŶĐĞƐ͘ 
dŚĞĂƉƉůŝĐĂŶƚ͛ƐĂƉƉĞĂůŽĨƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĞĂƉƉůŝĐĂƟŽŶƐŚŽƵůĚďĞĚĞŶŝĞĚĂŶĚƚŚĞŝƚLJ͛ƐĮŶĚŝŶŐƚŚĂƚƚŚĞƉƌŽũĞĐƚŝƐ ŝŶĐŽŵƉůĞƚĞƐŚŽƵůĚďĞĐŽŵĞĮŶĂů͘

WůĞĂƐĞŝŶĐůƵĚĞƚŚŝƐĞŵĂŝůĂƐƉĂƌƚŽĨƚŚĞĂĚŵŝŶŝƐƚƌĂƟǀĞƌĞĐŽƌĚŝŶƚŚŝƐŵĂƩĞƌ͘ 
dŚĂŶŬLJŽƵ͘

ZĞƐƉĞĐƞƵůůLJƐƵďŵŝƩĞĚ͕

ůĂŶZŽďĞƌƚůŽĐŬ
zŽƵĚŽŶΖƚŽŌĞŶŐĞƚĞŵĂŝůĨƌŽŵĂůĂŶΛďůŽĐŬůĂǁ͘ŶĞƚ͘>ĞĂƌŶǁŚLJƚŚŝƐŝƐŝŵƉŽƌƚĂŶƚ 1 Edgar Arroyo
From: Ken Goldman < >
Sent: Thursday, June 27, 2024 10:48 AM
To: Edgar Arroyo
Subject: FW: Linden Proposal
퓻퓼퓽 CAUTION: EXTERNAL SENDER 퓻퓼퓽
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.
<ĞŶ
&ƌŽŵ͗&ĞƌŶ^ĞŝnjĞƌф х
^ĞŶƚ͗dŚƵƌƐĚĂLJ͕:ƵŶĞϮϳ͕ϮϬϮϰϭϬ͗ϮϮD
dŽ͗DĂLJŽƌĂŶĚŝƚLJŽƵŶĐŝůΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐ
^ƵďũĞĐƚ͗>ŝŶĚĞŶWƌŽƉŽƐĂů
I would be here in person tonight but I am hosting a watch-party for the Presidential debate. I assume that others are watching as well. Otherwise there would be many homeowners who would speak against the developer's application for the Linden Project.

Their proposal is way out of proportion for our neighborhood. It encroaches on our streets, blurring the longtime boundary between business and residential.

Why should homeowners have to accept a proposal that would build 19 m dwelling units and a hotel with 165 guestrooms? That is mixed-use stories, 165 dwelling units and 73 guestrooms? That is way too big! Since the State has accepted the City's Housing Plan, why must the Builder's Remedy still apply to this project? Can't businesses and residents co-exist in Beverly Hills without serious disruption to our community?
As President of the Southwest Beverly Homeowners Association, Ken Goldman speaks for us. Please listen to and respect him as the representative of both those of us who have lived here for generations and raised our families and of those newer homeowners who don't want to see the character of our neighborhood destroyed. Living through the construction and the traffic such a huge project would bring is a hardship you can protect us against. I urge you to do so.

Thank you.

Fern Seizer
Rodeo Dr.
1 Edgar Arroyo
From: Heather Fels < >
Sent: Wednesday, June 26, 2024 3:54 PM
To: Edgar Arroyo
Subject: Linden project statement
퓻퓼퓽 CAUTION: EXTERNAL SENDER 퓻퓼퓽
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.

As a lifelong resident of Beverly Hills I have but one question: What does this project give back to my neighborhood?
I implore you to convince me why this massive overdevelopment that is incongruent with our community standards should be erected.

Owner, Peck Dr.

Heather Fels MD, MPH
zŽƵĚŽŶΖƚŽĨƚĞŶŐĞƚĞŵĂŝůĨƌŽŵ ͘>ĞĂƌŶǁŚLJƚŚŝƐŝƐŝŵƉŽƌƚĂŶƚ From: Jerry Jolton < >
Date: June 27, 2024 at 11:56:10 AM PDT
To: [email protected]
Cc: Ken Goldman < >
Subject: 125-192 Linden Project

Good evening City Council,
We have been residents in the block of Linden Drive for 25 years. As far back as I can remember, Beverly Hills has always been synonymous with being a safe and an aesthetically beautiful area, protected from extensive growth with excessively tall commercial buildings and high-rises. To be transparent, we are not against improvements within our city BUT within reason, adhering to a reasonable height limitation while preventing additional traffic gridlock. Aesthetically, this project is beautiful, but where does this end if builders keep pushing the envelope with no limit on the established boundaries! All this over-development would seriously affect the quality of our residential life over the entire Southwest area. The build out proposal on this Linden site compounds and augments many of the concerns of our residents and the site is not appropriate for a mixed-use development of a high traffic structure with residents and guests coming and going at all times of day and evening. Ingress, egress and navigating our automobiles at this portion of our very narrow street is challenging enough for various reasons. During construction we envision there will be many times each day that we will not be allowed access to drive on the street, similar to what transpired with The Rosewood project currently and The One, with its reduction in lanes. Parents need to have easy access for pick-up and drop off of their children on Linden & Charleville at the Good Shephard Catholic School as well, not to mention the disruptive level of construction and truck noise that will be excessive for neighbors and the school extensively for years. We are speaking out in strong opposition to this aggressive proposal as it currently stands. Nineteen (19) stories, 165 units, 73 hotel rooms with a restaurant and the construction of a 4-level subterranean parking structure is without question, excessive and out of line for this location.

Traffic volume, speeding and running stop signs are already unacceptable in the Southwest area, so this will without question increase the number of irresponsible, frustrated drivers creating even more safety issues.

This bears repeating, we must take into serious consideration how disruptive not only it will be during the years of construction, but post construction as well if this proposed project were to gain approval.

Thank you,
Jerry & Sandi Jolton
633 West Fifth Street
Suite 5880
Los Angeles, CA 90071
213.557.7222
www.rpnllp.com
Dave Rand
213.557.7224
[email protected]
June 26, 2024

VIA EMAIL
City of Beverly Hills
Honorable Mayor and City Council
[email protected]

Re: Appeal of Incomplete Determination Pursuant to Government Code § 65943(c) 125-129 South Linden Drive
Dear Honorable Mayor and City Council:

Our firm represents 9300 Wilshire, LLC (“Applicant”) in connection with the Development Plan Review application (“DPR Application”) for the proposed mixed-use project at 125-129 South Linden Drive (“Site”) in the City of Beverly Hills (“City”), assigned case number PL2300126 (“Project”). The Project is a mixed-use development including 165 total units, with 33 of those units (20%) restricted for lower-income households. The Project would also include 73 hotel rooms and a hotel restaurant.

On January 11, 20241
, the Applicant filed an appeal of the City’s Second Incomplete Letter, which determined that the DPR Application was incomplete (“Appeal”). 2 For the reasons stated below,
we respectfully request that the City Council grant the Applicant’s appeal and determine that the DPR Application is complete.

HCD
On June 26, 2024, the California Department of Housing and Community Development (“HCD”) issued a Letter of Support and Technical Assistance to Michael Forbes, the City’s Director of Community Development.3
This letter states that “For the proposed Project on Linden Drive, the City Council should grant the appeal and direct City staff to process the Project without further delay and without imposing a requirement for a [general plan amendment or zone change].”4 We urge the City to comply with
HCD’s guidance.
1 The Applicant submitted the appeal request to the City on November 13, 2023. The Applicant paid the appeal fee on January 11, 2024, so this is considered the filing date. 2 Attachment 13 to the July 27, 2024 City Council Agenda Report for Item F-2. 3 Attached hereto as Exhibit 1. 4 Page 4 of the letter (emphasis added).

City of Beverly Hills
June 26, 2024

Summary
This Appeal ultimately hinges on whether the City of Beverly Hills will comply with the Permit Streamlining Act and the Housing Accountability Act and allow the application to move forward through the normal review process, or instead disregard state law and refuse to even consider an application for a project that would bring 165 new housing units to the City, including 33 affordable units.

To be clear: this Appeal is not asking the City Council to approve the Project. All the Applicant is asking for at this stage is a basic, benign acknowledgment that the Applicant has submitted a complete application. There will be plenty time in the future for the City to consider the merits of the Project.

To date, the City has continuously nitpicked the DPR Application and contorted the review process and requirements in an apparent effort to delay and frustrate this Project. Moreover, the City has outright refused the process the DRP Application as a Builder’s Remedy project in violation of the Housing Accountability Act. We respectfully request that the City find the Applicant has submitted a complete DPR Application and permit the project to move forward as a Builder’s Remedy project, in compliance with state housing law.

Application Submittal and Review Timeline
On October 21, 2022, the Applicant submitted a preliminary application for the Project (“Preliminary Application”) pursuant to Government Code Section 65941.1. 5 On April 14, 2023, within
180 days after filing the Preliminary Application, the Applicant submitted the DPR Application for the Project.

On May 12, 2023, the City issued a letter determining that the DPR Application was incomplete (the “First Incomplete Letter”).6 On August 9, 2023, the Applicant submitted a formal written response to the First Incomplete Letter (“Response to First Incomplete Letter”), which included detailed written responses to each of the First Incomplete Letter’s 38 comments as well as attachments addressing the specific information identified as outstanding by the First Incomplete Letter.7 On October 13, 2023,8 the
5 The City’s May 12, 2023 First Incomplete Letter states “Although the Preliminary Application was submitted on Friday, October 21, 2022, the fees for the application were paid after hours, thus the submittal date is considered to be Monday, October 24, 2022.” This point is not contested here. 6 Attachment 2 to the July 27, 2024 City Council Agenda Report for Item F-2. 7 Attachment 3 to the July 27, 2024 City Council Agenda Report for Item F-2. 8 Notably, the date of the Second Incomplete Letter is more than 30 days after the date of the Response to First Incomplete Letter. Pursuant to Government Code Section 65943(b), “Not later than 30 calendar days after receipt of the submitted materials described in subdivision (a), the public agency shall determine in writing whether the application as supplemented or amended by the submitted materials is complete and shall immediately transmit that determination to the applicant. … If the written determination is not made within that 30-day period, the application together with the submitted materials shall be deemed complete for purposes of this chapter.” Because the Applicant did not receive a written response within 30 days following submission of the Response to First Incomplete Letter, this firm sent additional correspondence to the City on September 15, 2023 (“Confirmation of Deemed Complete Letter”), again via email, advising the City that because no response to the Response to First Incomplete Letter had been timely received, the Project was therefore considered “deemed complete” in accordance with Government Code Section 65943(b). The City responded to the Confirmation of City of Beverly Hills
June 26, 2024

City issued a second letter which again determined that the DPR Application was incomplete (the “Second Incomplete Letter”).9
In light of the City’s repeated rejection of the DPR Application and the ongoing disagreement between the Applicant and the City about how to fundamentally process the Builder’s Remedy aspect of the Project, it became clear to the Applicant that the parties had reached an impasse. Consequently, on January 11, 202410, the Applicant filed an appeal of the Second Incomplete Letter in accordance with the procedure established by Government Code Section 65943(c), which is now set for a hearing by the City Council on June 27, 2024.

Notably, in the months after filing the Appeal, the Applicant has continued to make revisions to the DPR Application, as requested by City staff, in a continued attempt to obtain a determination from the City that the DPR Application is complete. Specifically, on January 10, 2024, the Applicant submitted a response to the Second Incomplete Letter (“Response to Second Incomplete Letter”), which included detailed written responses to each of the Second Incomplete Letter’s comments as well as attachments addressing the specific information identified as outstanding by the Second Incomplete Letter.11 On February 9, 2024, the City issued a third letter which again determined that the DPR Application was incomplete (the “Third Incomplete Letter”).12 On May 9, 2024, the Applicant submitted a response to the Third Incomplete Letter (“Response to Third Incomplete Letter”), which included detailed written responses to each of the Third Incomplete Letter’s comments as well as attachments addressing the specific information identified as outstanding by the Third Incomplete Letter.13 Finally, on June 7, 2024, the City issued a fourth letter which yet again determined that the DPR Application was incomplete (the “Fourth Incomplete Letter”).14 The Applicant has not yet responded to the Fourth Incomplete Letter. (The First, Second, Third, and Fourth Incomplete Letters are referred to herein as the “Incomplete Letters.”)
Response to Agenda Report and Proposed Resolution Denying Appeal The Agenda Report for June 27, 2024, City Council hearing on the Appeal includes a draft resolution (“Draft Resolution”) denying the Appeal. For organizational clarity, the following discussion Deemed Complete Letter on September 18, 2023, via email, stating that it never received the Response to First Incomplete Letter due to an issue with the City’s email security filter system. Notwithstanding that the Response to First Incomplete Letter was in fact timely transmitted to the City on August 9, 2023, within the 90-day timeframe prescribed by Government Code Section 65941.1(d)(2), and notwithstanding the fact that prior and subsequent email correspondence between this firm and the City was timely received by the City, the Applicant agreed to provide the City with a new 30-day period from September 15, 2023 (the date of the Confirmation of Deemed Complete Letter transmittal) to review the materials originally transmitted on August 9, 2023 as part of the Response to First Incomplete Letter.
9 Attachment 4 to the July 27, 2024 City Council Agenda Report for Item F-2. 10 The Applicant submitted the appeal request to the City on November 13, 2023. The Applicant paid the appeal fee on January 11, 2024, so this is considered the filing date. 11 Attachment 5 to the July 27, 2024 City Council Agenda Report for Item F-2. 12 Attachment 6 to the July 27, 2024 City Council Agenda Report for Item F-2. 13 Attachment 7 to the July 27, 2024 City Council Agenda Report for Item F-2. 14 Attachment 8 to the July 27, 2024 City Council Agenda Report for Item F-2.

City of Beverly Hills
June 26, 2024

addresses and refutes each determination in the Draft Resolution, in the order in which the issue appears in the Draft Resolution.

A. The Appeal Was Timely Filed.

The Draft Resolution finds the Appeal was not timely because it was filed outside of the 14-day appeal period stated in BHMC Section 1-4-102. This determination is without merit because the 14-day appeal period does not apply to an appeal of an incompleteness determination. The general right to appeal is stated in BHMC Section 1-4-101 and reads as follows:
1-4-101: RIGHT TO APPEAL
A. Where a right of appeal to council exists under this code, and a procedure is not otherwise specifically set forth in this code, an appeal may be taken to the council, in accordance with the procedures set forth in this article, from any act, ruling, or determination of any commission, board, or official or from the denial, suspension, or revocation of any permit or license.

B. No right of appeal to the council from any administrative decision made by an official of the city pursuant to any of the provisions of this code shall exist when such decision is ministerial and thus does not involve the exercise of administrative discretion or personal judgment exercised pursuant to any of the provisions of this code.

C. No appeal pursuant to the provisions of this article may be taken from any administrative decision made by an official of the city, unless the decision to appeal has been first taken up with the official rendering the decision.

The language in Section 1-4-101 makes it clear that appeals of incompleteness determinations are not subject to the 14-day appeal period in Section 1-4-102. First, the BHMC does not include any provision explicitly creating a right to appeal an incompleteness determination to the City Council. Consequently, the requirement in subsection (A) - “Where a right of appeal to council exists under this code” - does not apply here. Instead, the right to appeal an incompleteness determination exists under state law, specifically Government Code Section 65943(c). Second, subsection (B) provides that there is no right of appeal to the City Council when the administrative decision is ministerial. Ministerial decisions are decisions that do not involve any discretion and are often characterized by simply confirming that the applicant has satisfied all objective conditions on a checklist. This is exactly what is at issue here. The City literally has an application checklist with items that an applicant must submit and City staff have made an administrative determination that the Applicant has not submitted every item on that list and that, consequently, the DPR Application is incomplete. This is a textbook example of a ministerial decision and is therefore an independent reason why the City’s general appeals provisions - including the 14-day deadline for filing an appeal - are not applicable here.

Moreover, it is extremely late in the process for the City to now claim that the Appeal was not timely filed given that the City accepted the filing of the Appeal including the fee, set the Appeal for a hearing, agreed to continue the hearing multiple times, and is now holding an actual hearing on the merits of the Appeal, without having ever mentioned that the Appeal was not timely filed. For example, each of the Agenda Reports continuing the date of the Appeal hearing (from March 11, 2024, April 16, City of Beverly Hills
June 26, 2024

2024, and May 21, 2024) simply recommends that the appeal hearing be continued without ever stating that the Appeal was not timely filed.

Finally, the Draft Resolution cannot have it both ways. If the Appeal was untimely (which it was clearly not), then the Appeal should simply be denied on that ground alone and should have either never been accepted or rejected shortly after the filing along with a refund of the appeal fees. But the Draft Resolution goes on to weigh in on all of the other substantive issues at stake in the Appeal, essentially admitting that an appeal really has been timely filed and really is being considered by the City Council.

B. The Appeal Is Not Moot
The Draft Resolution finds that the Appeal is somehow moot because the Applicant made additional submittals after filing the Appeal, and did not appeal the Third and Fourth Incompleteness Letters. The Applicant made additional submittals after filing the Appeal because state law requires the Applicant to respond to incompleteness letters within 90 days to keep a preliminary application from expiring and does not extend or toll this time period while an appeal is pending.15 Thus the Applicant was required by law to make addition submittals or else risk expiration of its preliminary application.

Moreover, the Appeal would only have become moot if all of the issues in the Appeal had been resolved through the Applicant’s subsequent submittals and the City’s subsequent response letters. But this has not occurred. In fact, the Applicant’s subsequent submittals clearly acknowledge that some of the outstanding issues must be resolved through the appeal (for example, the major threshold legal issues related to the Builder’s Remedy), while also attempting to narrow down the other remaining issues (for example, the specific – very minor – details of plan submittals).

Consequently, there is no basis for determining that the entire Appeal is moot. At most, the only issues that are now moot are the specific issues that were resolved through the back-and-forth that took place between the City and the Applicant following the filing of the Appeal. For example, page 6 of the Agenda Report states that there were 9 incomplete items in the DPR Application submitted on October 13, 2023 (in addition to the disputed general plan and zoning amendments), but that only 4 of those items (Items 1, 2, 3, and 5) remain unresolved as of the date of the Agenda Report. It would therefore be reasonable to determine that the Appeal is moot as to Items 4, 6, 7, 8, and 9, but not as to other items that remain outstanding.

C. The Applicant Has Submitted All Legally Required Materials To Be Deemed Complete.

The Draft Resolution finds that the DPR Application was incomplete at the time the Appeal was filed based on 9 items, listed in the Resolution. However, the City admits on page 6 of the Agenda Report that 5 of those items have been resolved through subsequent submittals by the Applicant such that the only issues that remain outstanding are Items 1, 2, 3, and 5. Thus, those four issues are addressed below.
15 Government Code Section 65941.1(d)(2) and 65943(c).

City of Beverly Hills
June 26, 2024

D. All Required Information Has Been Provided.

The Draft Resolution finds that the DPR Application remains incomplete as of the date of Appeal hearing based on 4 items listed in the Section (D) of the Draft Resolution. Each of these issues has been adequately addressed as discussed below:

1. “The plans do not include required information regarding rooftop mechanical equipment and screening (Correction 7c).”
The First Incomplete Letter included the following language as Correction 7c:

Mechanical Equipment Screening – Show the proposed rooftop mechanical equipment screening on all sections and elevations, as the proposed screening is not shown on the sections and elevations provided. Pursuant to BHMC Section 10-3-100 (Height), the max height is 15'-0" for mechanical equipment penthouses and enclosures.

As with many of the comments made by the City in the Incomplete Letters, this comment includes both a request for information on the plans and a request that the Project be modified to comply with the BHMC requirements for roof structure height. The Response to First Incomplete Letter provided a response to this comment indicating that the Project is not required to achieve consistency with the zoning standards because it is a Builder’s Remedy project, so no changes to the height are required nor may such changes be a requirement to complete the application.

The Response to First Incomplete Letter does include a reference to the requested information on the plans as follows: “For informational purposes, the plans have been revised to include additional data on the height and screening of the roof structures. Refer to sheets A23-A31.” The elevation sheets referenced include the proposed height of the roof structures in feet as measured from several elevation datum points; Note #9, which specifies which structure is the “Mechanical Trellis;” and Note #8, which specifies the location of a “60” High Mechanical Screen, type.” The section sheets include the same height information and notes regarding the screening as the elevations and also identify “Mechanical Equipment,” in Note #2, which is visibly placed behind the screening (as is the purpose of an architectural section diagram). This information is clearly responsive to both Correction 7c and also to the requirements of the DPR application checklist, which only require that an application include elevations and sections that “Indicate the height of all existing and proposed structures. Indicate how height is measured. Include datum points.”
The only other reference to mechanical equipment on the DPR application checklist is within the requirements for a Roof Plan, stating “Show the location of any roof-mounted mechanical equipment and required screening.” This information is also adequately provided on the roof plan, within the architectural plan set. As such, this item was addressed in the Response to First Incomplete Letter and required information has been provided on the elevations, sections, and roof plan of every subsequent resubmittal.

2. “The plans do not show the code-required setbacks (Corrections 9a, b, c, d, e).” The First Incomplete Letter includes Correction 9a, b, c, and d, which states that the BHMC requires a front setback of 15 feet, a cumulative side yard setback of 23 feet with at least 9 feet on one City of Beverly Hills
June 26, 2024

side, and a rear setback of 15 feet in the R-4 zone, and that the design must be revised to comply with the “applicable” setbacks. Correction 9e states that per BHMC Section 10-3-2811 the portion of the basement garage that may encroach into the front yard setback must be two feet lower than the grade of the adjacent sidewalk and that the depression shall be planted with landscaping. Each of these comments states that the Applicant must “revise the design” with these setbacks.

The Project proposes a seven (7) inch front yard setback, a ten (10) foot, ten (10) inch south side yard setback, a seven (7) foot north side yard setback, a zero (0) foot rear yard setback, and the first basement garage level is not two feet lower than the adjacent sidewalk. The DPR Application includes the proposed setback dimensions on all sheets. The Response to the First Incomplete Letter states clearly that the Project is not subject to the “code required” or “applicable” setbacks. The plans provide relevant information regarding the setbacks that are proposed and addresses the City’s assertion that the Applicant must revise the Project to meet these standards. The Project is not required to be consistent with the City’s general plan or zoning regulations, so this item cannot be used to deem the application incomplete.

3. “The plans do not include required front yard paving information (Correction 11).”
The First Incomplete Letter stated Correction 11 as:

Front Yard Paving – Sheet A14 BHMC Section 10-3-2813 details the applicable front yard paving standards for properties located within the City’s R-4 Zone. Pursuant to this section, no portion of any front yard within the R-4 Zone shall be paved, except for not more than one walkway not exceeding five feet (5') in width and one driveway not exceeding the width of its curb cut. Based on the design provided on Sheet A14, the project includes a paved courtyard and walkway to the north side of the property. No driveway paving is proposed within the front yard setback area. Together, these walkways exceed the maximum allowable width for walkways located in the front yard setback area.

Revise the design of the paving proposed in the front yard setback area to include one (1) walkway that does not exceed 5’ in width. Additional walkways not exceeding 5’ in width may be permissible as detailed in BHMC Section 10-3-2813.

The Project includes a landscaped courtyard that is partially paved and a walkway that collectively exceeds five feet in width. Diagrams of the paving are shown on the Site Plan as well as on the Landscape Plan, on Sheet L1.10, along with details of the proposed paving type. The City’s own comment acknowledges that the plans include adequate information to determine which areas are paved on the ground level of the Project, as it states clearly that the design includes a paved courtyard and walkway to the north side of the property. The correction does not ask for more information to be added so that the City may assess the application for completeness, it just repeats the assertion that the Applicant must revise the Project to meet the front yard paving standards. As stated clearly in the Response to the First Incomplete Letter, the Project is not required to be consistent with the City’s general plan or zoning regulations, and information is provided to show which areas of the ground floor area paved. This item cannot be used to deem the application incomplete.

City of Beverly Hills
June 26, 2024

4. “The plans do not include sufficient information related to loading and potential issues with T- alley intersection (Correction 14b).”
The First Incomplete Letter stated Correction 14b as:

Loading Study – Provide a loading study that evaluates the loading demands of the proposed project and determines the adequacy of the loading areas proposed. The loading study shall also study vehicle maneuverability into the proposed loading areas, particularly truck maneuverability for accessing the loading space located adjacent to the alley at the rear, as it appears difficult to maneuver a truck in the alley due the existing width. The existing alley measures 15’ in width, but would be widened to 17’-6” feet once the project dedicates land along the alleys.

The Project provides three loading zone spaces along the rear alley with a width of 12 feet and a length of 40 feet. The DPR Application provides a Loading Study diagram on Sheet A37 of the plans, which diagrammatically shows how an 18’ Cargo Van and a 26’ Truck would maneuver to and from the Project’s loading areas. In the Fourth Incomplete Letter, the City acknowledges that a loading diagram was provided but stated that it was not sufficient because “The exhibit does not provide dimensions showing the width of the turning areas, nor does show compliance with applicable American Association of State Highway and Transportation Officials (AASHTO) standards” and asserted that the study must be prepared by a licensed professional.

This response cannot be used to deem the application incomplete for two reasons. First, preparation of a loading study by a “licensed professional” to demonstrate compliance with AASHTO standards is not listed on the DPR application checklist, which only requires that a Loading Study be provided if requesting a modification from the loading requirements (which the Project is not, because it is not required to be consistent with the loading requirements) and that the Applicant “Provide a study to indicate that the type/site/location of the proposed loading space area is sufficient to meet the needs of the building and operation.” The Project does provide such a study to indicate how the loading space areas are sufficient. Second, the City cannot add to or expand the requirement to provide new information that was not identified in the First Incomplete Letter.16 The Applicant has satisfied these requirements as stated in the DPR application checklist and as such this cannot be used as a reason to deem the application incomplete.
16 Cal. Gov. Code § 65943 states “(a) Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. If the application is determined to be incomplete, the lead agency shall provide the applicant with an exhaustive list of items that were not complete. That list shall be limited to those items actually required on the lead agency's submittal requirement checklist. In any subsequent review of the application determined to be incomplete, the local agency shall not request the applicant to provide any new information that was not stated in the initial list of items that were not complete.” (Emphasis added.)
City of Beverly Hills
June 26, 2024

E. The Project Qualifies Under the Builders Remedy Provision of the Housing Accountability Act and Maintains Its Vested Rights.

1. This Issue Is Not Relevant To Whether the Application is Complete As a preliminary matter, we note that the issues of (1) whether or not this Project is a “Builder’s Remedy” project and (2) whether or not the Applicant’s preliminary applicant is still valid are not in any way relevant to whether the DPR Application is complete. Furthermore, it appears that the City agrees with the Applicant on this point. Page 6 of the Agenda Report lists 9 incomplete items, which are generally site-plan related, and also implies that the City considers the Applicant’s failure to submit applications for general plan and zoning amendments to be incomplete items. These 11 items appear to be the sum total of the items the City considered to be incomplete at the time the Appeal was filed. If this is accurate, then the findings in the Draft Resolution related to whether the Project is a Builder’s Remedy project and whether the Applicant’s preliminary application is still valid are irrelevant to whether the DPR Application is complete.

2. The Project Is a Builder’s Remedy Project
As stated above in (1), we do not believe the issue of whether or not this Project is a “Builder’s Remedy” project is in any way relevant to whether the DPR Application is complete. However, to preserve our future rights, and in the interest of providing a fulsome response to the staff report and draft resolution, we nevertheless address this issue below.

The so-called “Builder’s Remedy” is based on a provision of the Housing Accountability Act (“HAA”), Government Code Section 65589.5(d)(5). Under the Builder’s Remedy, if a jurisdiction lacks a substantially compliant Housing Element it cannot use its general plan or zoning regulations to deny or render infeasible a housing development project that sets aside at least 20 percent of its total units for lower income households, as defined in Section 50079.5 of the Health and Safety Code - which the Project does.

At the time the Applicant submitted the Preliminary Application the City did not have a legally compliant Housing Element. This was confirmed both by the September 12, 2023 Los Angeles County Superior Court ruling in Californians for Homeownership, Inc. v. City of Beverly Hills, Case No. 23STCP00143, and in multiple letters from the California Department of Housing and Community Development (“HCD”).17
17 In a letter to the City dated May 12, 2023, HCD found that the City’s 6th Cycle Adopted Housing Element, adopted February 21, 2023, did not substantially comply with State Housing Element law. HCD’s May 12, 2023 letter also stated that “[b]y no means was the City’s prior submittal [adopted October 15, 2021] in substantial compliance with State Housing Law,” and the “City’s findings as part of the adoption are inadequate to demonstrate substantial compliance with statutory requirements; therefore, revisions to the element continue to be necessary to substantially comply with State Housing Element Law.” See also HCD Letter to Dave Rand, entitled “City of Beverly Hills 6th Cycle Housing Element Submittal Compliance and Suitable Sites Inventory - Letter of Technical Assistance” (June 20, 2023) (“HCD confirms that as of the date of this letter, Beverly Hills’ housing element remains out of substantial compliance with State Housing Element Law.”) City of Beverly Hills
June 26, 2024

The submittal of a preliminary application vests an applicant’s right to develop the project in accordance with the ordinances, policies, and standards in effect at the time of submittal.18 HCD has issued a written opinion that the vested policies and standards include a city’s non-compliant housing element in place at the time of a preliminary application filing.19 This opinion was affirmed in a recent lower court opinion in a case addressing a Builder’s Remedy project in the City of La Cañada Flintridge.20 Consequently, by filing the Preliminary Application when the City’s housing element was out of compliance with state law, the Applicant locked in the benefits of the Builder’s Remedy for the project and those benefits will remain applicable to the Project, even though HCD has certified the City’s Housing Element21, as long as the Preliminary Application does not expire or become invalid.

HCD has confirmed the Applicant’s position in the June 26, 2024 letter to Michael Forbes: “The Project [at 1256-129 Linden Drive] has vested the protections of Government Code section 65589.5, subdivision (d)(5), also known colloquially as the “Builder’s Remedy” under the Housing Accountability Act (HAA).”22

3. The Preliminary Application Has Not Expired and Is Not Invalid As stated above in (1), we do not believe that the validity of the Preliminary Application is in any way relevant to whether the DPR Application is complete. For the same reasons discussed above, we nevertheless address the substance of this matter below.

The Draft Resolution states that the Preliminary Application has expired and is no longer valid because the project in the DPR Application is “substantially different” from the project described in the Preliminary Application. The project in the Preliminary Application was a residential-only project that included 200 dwelling units within a 259,547 square foot, 16-story building, with a height of 170 feet, and 124 parking spaces in a four-level subterranean parking structure. The project in the DPR Application was changed to a mixed-use project that includes 165 dwelling units, 73 hotel rooms, and a hotel restaurant in a 311,197 square foot, 19-story building, with a height of 200 feet, and 126 parking spaces in a four-level subterranean parking structure.

There is no question that the project changed; the issue is whether these changes invalidated the Preliminary Application, and the answer is that they did not as a matter of law. The reason for this is straightforward: state law explicitly lists the changes in a project that will invalidate a preliminary 18 Government Code Section 65589.5(o)(1). 19 HCD Letter to Dave Rand, dated October 5, 2022, re: “3030 Nebraska Avenue, Santa Monica - Letter of Technical Assistance.”
20 California Housing Defense Fund v. City of La Cañada Flintridge, Case No. 23STCP02614, Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief (Filed March 4, 2024), p. 15. 21 Notwithstanding HCD’s certification, it appears the City has yet to complete certain mandatory requirements of Housing Element law identified in Judge Kin’s decision in Californians for Homeownership, Inc. v. City of Beverly Hills, Case No. 23STCP00143, including compliance with Government Code Sections 65583.2(g)(1) and (g)(2).

Therefore, given this court order, and these outstanding obligations, the City’s Housing Element remains out of legal compliance notwithstanding HCD’s certification.
22 See page 1 of the letter, including footnote 1. HCD adds that “This assumes that the preliminary application has not expired and that the Project has not been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).”
City of Beverly Hills
June 26, 2024

application and none of those changes occurred here. Government Code Section 65941.1(c), which governs preliminary applications, states as follows:

After submittal of all of the information required by subdivision (a), if the development proponent revises the project such that the number of residential units or square footage of construction changes by 20 percent or more, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision, the housing development project shall not be deemed to have submitted a preliminary application that satisfies this section until the development proponent resubmits the information required by subdivision (a) so that it reflects the revisions.

For purposes of this subdivision, “square footage of construction” means the building area, as defined by the California Building Standards Code (Title 24 of the California Code of Regulations).

HCD confirms in its June 26 letter to Michael Forbes that other than a preliminary application expiring, the only other thing that renders a preliminary application invalid is if “the Project has … been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).” (i.e., the twenty percent or more change in unit count and/or square footage thresholds cited above).23
Here, the number of residential units was reduced from 200 in the Preliminary Application to 165 in the DPR Application (a 17.5 percent decrease), and the square footage of construction was increased from 259,547 square feet in the Preliminary Application to 311,197 square feet in the DPR Application (a 19.9 percent increase). These revisions are within the 20 percent threshold set forth in Government Code Section 65941.1(c). Furthermore, the statute in no way prohibits the project from adding a commercial component. All that is required is that the project continue to be a “housing development project,” which is defined as including “Mixed-use developments consisting of residential and non-residential uses with at least two-thirds of the square footage designated for residential use.”24 Here, approximately 77 percent of the Project is designated for residential use. 25 Therefore, the
Preliminary Application remains valid. This tracks the policy and intent behind the vesting preliminary application – which was ushered in by “the Housing Crisis Act of 2019” or Senate Bill 330. The legislature recognized that the preliminary application was to be filed at a very early stage in the process and that changes were inevitable. That is why the statute includes intentionally flexible parameters to allow for project modifications – and as long as those specific thresholds relative to unit count and square footage are not exceeded – the project is allowed to morph and evolve without forfeiting vested rights.

F. Project Maintains Its Vested Rights Based on Timely Responses to the City’s Incomplete Letters.
23 See footnote 1 on page 1 of the letter. 24 Government Code Section 65941.1(a), 65905.5(b)(3), and 65589.5(h)(2). 25 The architectural plan set submitted with the Response to Third Incomplete Letter, dated March 5, 2024, contains Floor Area Ratio Calculations on Sheet A06 which show that the Project contains 48,032 square feet of hotel uses and 164,377 square feet of residential uses.

City of Beverly Hills
June 26, 2024

As stated above in (E)(1), we do not believe that the issues of whether or not this Project is a “Builder’s Remedy” project or whether or not the Preliminary Application has expired are in any way relevant to whether the DPR Application is complete. However, for the reasons already stated we address the substance of this allegation below.

The Draft Resolution states that the Preliminary Application has expired because the Applicant did not submit a complete application within 90 days of the date of the City’s First Incomplete Letter.

This determination is based on the City’s flawed position that the Applicant is only provided with one 90-day time period during which the Applicant must respond perfectly to all of the items in the City’s incomplete letter to maintain vested rights. This is a tortured misreading of state law. The relevant provision of state law - Government Code Section 65941.1(d)(2) - reads as follows:

If the public agency determines that the application for the development project is not complete pursuant to Section 65943, the development proponent shall submit the specific information needed to complete the application within 90 days of receiving the agency's written identification of the necessary information. If the development proponent does not submit this information within the 90-day period, then the preliminary application shall expire and have no further force or effect.

First of all, this provision does not say that the Applicant only gets one 90-day period within which to resubmit a complete application. It only states that resubmittals must be made within 90 days of receiving an incomplete letter. Furthermore, the Permit Streamlining Act (Government Code Section 65920 et seq.) (“PSA”) clearly establishes an iterative process whereby the applicant submits the application, the City responds within 30 days, and then the applicant can resubmit, followed by another 30-day review by the City, and so on.26 Prior to the addition of Government Code Section 65941.1 as part of the Housing Crisis Act of 2019 (SB 330), the PSA already included a timeline for public agencies to respond to application submittals - namely, 30 days. The addition of Government Code Section 65941.1(d)(2) created a timeline for applicants to respond to incomplete letters when they had previously filed a preliminary application - namely, 90 days. Section 65941.1(d)(2) is part of the PSA and should therefore only logically be read and interpreted in a way that harmonizes that section with the broader review procedures outlined in the PSA, including the iterative process described above.

Furthermore, from a practical perspective, the City’s proposed interpretation would make it virtually impossible for a housing project applicant to keep the very benefit - namely, vested rights - that the legislature intended to provide. The whole point of Government Code Section 65941.1 is to provide housing developers a new tool whereby they can lock in the development standards that will apply to their project and to hold on to that vesting until the project is approved. But this whole scheme becomes absurdly self defeating if it relies on applicants being able to perfectly respond to incomplete letters in only a few weeks. Consider the following possible scenario: an applicant submits a preliminary application for a housing development and then submits a full application less than 180 days later. The city then issues an incomplete letter which starts a 90-day clock. The applicant resubmits 30 days later.

The city then issues a second incomplete letter on day 60. The applicant resubmits on day 61. The city then finds one very minor mistake in the application and issues a third incomplete letter on day 90, 26 Government Code Section 65943(a) and (b). As HCD has stated: “The process of submitting an application for a housing development project can be iterative.” HCD Memo entitled “Housing Accountability Act Technical Assistance Advisory (Government Code Section 65589.5)” (September 15, 2020), p. 8.

City of Beverly Hills
June 26, 2024

leaving the applicant with no days left to resubmit. Under the City’s interpretation, this scenario results in the applicant losing the vesting that was supposed to result from the preliminary application.

Moreover, this scenario illustrates how the City’s interpretation would invite all kinds of gamesmanship from local agencies and would not, in fact, give applicants 90 days to respond but would instead give them 90 days minus any time taken by the public agency to review the application. Several iterations of this scenario could be played out, but the point remains the same: the City’s interpretation would make this statute just about as self-defeating as possible since, as the Applicant’s experience clearly demonstrates, it is virtually impossible to submit a perfect application on the timeline the City proposes when the reviewing agency is intent on finding some reason to determine that the application is ultimately incomplete.

Finally, the City’s interpretation is nearly impossible to harmonize with the appeal provision in Government Code 65943(c). That section provides a right of appeal after the public agency issues a second incomplete letter and then gives the public agency 60 days to issue a written decision on the appeal. So, again, imagine the city issues a first incomplete letter, starting the 90-day clock. On day 1, the applicant resubmits. On day 31 the city issues a second incomplete letter, which gives the applicant a right to appeal. The applicant files an appeal on day 32. The public agency issues a written decision on day 92 confirming that the application is incomplete. Under the City’s interpretation, the 90 days have now expired and the preliminary application has terminated, defeating the whole point of creating a vesting process.

In short, in light of the broader context of the PSA, and the absurd practical implications of the City’s interpretation, Section 65941.1(d)(2) should be interpreted as limiting the time that an applicant has to respond to an incomplete letter to 90 days, but not as limiting the amount of resubmittals that an applicant can submit. In other words, an applicant has 90 days to resubmit each time they resubmit, but they can resubmit as many times as necessary.

HCD implicitly confirms this interpretation of Government Code Section 65941.1(d)(2) in its June 26 letter to Michael Forbes. On page 2 of the letter, HCD recounts the DPR Application timeline, including the City’s four Incomplete Letters, the Applicant’s three resubmittals, and the dates for each, which clearly show that it has been more than 90 days since the date of the First Incomplete Letter and that the City has still not determined that the DPR Application is complete. Nonetheless, HCD never states that the Preliminary Application has expired, confirms that the Project is subject to the Builder’s Remedy, and recommends the City grant the appeal and deem the application complete.

Every time the City has issued an incomplete letter regarding the DPR Application, the Applicant has always filed a resubmittal addressing the incomplete letter within 90 days of receipt of the incomplete letter. Consequently, the Preliminary Application has not expired and remains valid.

Date of Incomplete Letter Date of Resubmittal Days Between 1st - May 12, 2023 August 9, 2023 89 days
2nd - October 13, 2023 January 10, 2024 89 days
3rd - February 9, 2024 May 9, 2024 90 days
City of Beverly Hills
June 26, 2024

4th - June 7, 2024 Response Pending 20 days (as of hearing date) G. The City May Not Reject the Project or Refuse To Deem the Application Complete Due to the Applicant’s Failure to File a General Plan and/or Zone Change.

The Draft Resolution claims that “in order to process the DPR project application, the applicant must also submit applications for amendments to the City’s General Plan, and zoning ordinances and/or map for concurrent processing.” For the reasons stated below, the City cannot require the Applicant to submit these applications as a prerequisite to determining that the DPR Application is complete or as a requirement for approving the Project.

1. Due Process
First, the Draft Resolution claims that requesting these amendments is necessary to ensure that “the due process rights of surrounding property owners are respected and that those property owners may participate in the proceedings, including required public hearings, should they so choose.” This justification is completely frivolous. The DPR review process already requires a public hearing for which the same “surrounding property owners” will receive a notice and at which the same “surrounding property owners” can participate and voice their opinions about the Project. The City gives no explanation of why this required public hearing would not be sufficient to satisfy due process.

Additionally, there have already been several forms of public notification about the Project application, which have given the surrounding property owners and neighbors advanced notification before the City has even deemed the application complete and scheduled the actual public hearing for the DPR application.27

2. Need to Analyze Deviations
The Draft Resolution further states that the “substantial deviations from the General Plan and applicable R-4 zoning and other applicable ordinances as contemplated by the DPR project must be analyzed and processed pursuant to the City’s procedures.” This analysis can obviously be done without the Applicant requesting a general plan or zoning code amendment. All the City has to do is compare the submitted project with the existing general plan and zoning requirements, which is the same process that applies for every project reviewed by the City.
27 The Notice of A Pending Application was posted on the site on May 26, 2023 and mailed to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site. The Notice of Public Hearing for the appeal hearing was mailed on Friday, February 16, 2024 to all property owners and residential occupants within a 500-foot radius (extended to the block face) from the project site. An on-site notice was posted on the subject property on Thursday, February 15, 2024. The project was also noticed in the Friday, February 16, 2024 edition of the Beverly Hills Courier and the Thursday, February 11, 2024 edition of the Beverly Hills Weekly. Lastly, courtesy emails were provided to all interested parties by the City advising them of the original and continued hearing dates.

City of Beverly Hills
June 26, 2024

3. HCD Technical Assistance
The Draft Resolution relies on a letter from HCD issued to the City of Compton (the “Compton Letter”) stating that the Housing Accountability Act does not prevent cities from requesting a general plan/zoning code amendment in order to avoid a legal non-conformity.”28 As a preliminary matter, the City has not stated that it is making this request “in order to avoid a legal non-conformity,” but rather gives the justifications in (1) and (2) above. But more importantly, HCD has significantly modified and clarified its conclusion in the Compton Letter through its June 26, 2024 letter to Michael Forbes.

The June 26 letter clarifies that requiring a general plan amendment and zone change for a Builder’s Remedy project violates the intent of the Housing Accountability Act:

While it remains true that the statutory language in the HAA does not expressly prevent the City from requesting or requiring legislative actions (e.g., a GPA/ZC) that would be required for similar projects where the Builder’s Remedy does not apply, requiring such action where the Builder’s Remedy does apply leads to an absurd outcome. As a result, HCD wishes to provide clarification on this topic.

The HAA is clear that a project protected by the Builder’s Remedy may not be disapproved for inconsistency with a jurisdiction’s general plan and zoning ordinance.

Accordingly, a jurisdiction that refuses to process or approve a project subject to the Builder’s Remedy due to the applicant’s refusal to submit a GPA/ZC requested or required by the jurisdiction to resolve such an inconsistency violates the intent of the HAA. …
In other words, the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the grounds of inconsistency. The HAA prohibits such a disapproval.
29 Furthermore, whereas the Compton Letter only discusses the Housing Accountability Act, the June 26 letter adds an analysis of what is permitted under the Permit Streamlining Act, which is especially relevant when determining the completeness of an application. Here, HCD concludes that a city cannot require a general plan amendment or zone change even if the project is not a Builder’s Remedy project if these items are not included on the application checklist, which is the case for DPR applications in Beverly Hills:

Even if a GPA/ZC were permitted under the HAA, the Permit Streamlining Act (PSA) prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist. The City cannot determine that an application is incomplete on the basis that it does not include a request for a GPA/ZC unless the 28 HCD Letter entitled “1601 W. El Segundo Blvd, Compton – Letter of Technical Assistance” (March 29, 2024). 29 Pages 2 and 3 of the letter (emphasis added).

City of Beverly Hills
June 26, 2024

submittal requirement checklist included a requirement for the applicant to submit a GPA/ZC. …
In this case, the City’s submittal checklist did not include a requirement for a GPA/ZC at the time of submittal, and therefore, the City cannot require either as part of the application.30
Accordingly, HCD has clearly confirmed the City cannot reject a Builders Remedy project such as this based on the applicant’s refusal to submit a General Plan Amendment and/or zone change.

Moreover, refusing to deem the application complete on this same basis violates the Permit Streamlining Act.

4. Housing Accountability Act
Although HCD’s June 26 letter brings significant clarity to this issue, it also valuable to evaluate the Housing Accountability Act in even greater detail. To begin, the statutory language of the Builder’s Remedy clearly preempts a local jurisdiction’s ability to deny a project based on inconsistencies with the applicable general plan and zoning code. Specifically, Government Code Section 65589.5(d)(5) prohibits a local jurisdiction from denying a housing development project for very low, low-, or moderate-income households on grounds of inconsistency with the general plan and zoning code where the jurisdiction does not have a compliant housing element. Furthermore, Government Code Section 65589.5(d)(5)(A) prohibits a local jurisdiction from denying a housing development project for very low, low-, or moderate-income households on grounds of inconsistency with the general plan land use element if the project is located on a site that is identified in the housing element as suitable for affordable housing and the proposed project is consistent with the density specified in the housing element. The intent of these provisions is clear: to completely remove consistency with the general plan and zoning code as an allowable consideration when reviewing these projects.

The fact that a city, like the City of Compton, may desire an amendment to its general plan and zoning code “in order to avoid a legal non-conformity if/when the project is approved” is not relevant to how a Builder’s Remedy project must be considered by the City. First of all, the mere fact that a project may result in a non-conformity does not harm the jurisdiction in any way. Nearly all local jurisdictions, including the City of Beverly Hills,31 have provisions in their zoning codes addressing nonconforming uses that generally limit the ability of such uses to be expanded and establish other parameters to address the potential impacts of such uses. Furthermore, local jurisdictions have another perfectly satisfactory option for avoiding an ongoing non-conformity: they can initiate and process a general plan and zoning code amendment on their own, without making the applicant do it. In the June 26 letter, HCD acknowledges cities’ “desire to have development consistent with general plans and zoning” and suggests that “to that end, jurisdictions may undertake a GPA/ZC independently from a development application.” It then goes on to offer suggestions for how that could be done.32 Thus, given that (a) general plan and zoning code inconsistency cannot be a ground for denying a Builder’s Remedy project, and (b) local jurisdictions have a perfectly adequate way to address legal 30 Pages 3 and 4 of the letter (emphasis added). 31 See BHMC Section 10-3-4101. 32 See footnote 4 on page 3 of the letter.

City of Beverly Hills
June 26, 2024

non-conformities without making applicants for Builder’s Remedy projects apply for a general plan and zoning code amendment, requiring Builder’s Remedy applicants to apply for a general plan and zoning code amendments can only be motivated by a jurisdiction’s desire to delay the processing of the project, to increase the costs of the application, and to introduce uncertainly into the project review process - all things that the HAA is clearly intended to avoid.

The Compton Letter attempted to address these issues by adding the caveat that “if insisting on the GPA or Zoning Change delays project approval or increases the cost of the approval process, a violation of the HAA would result.” This assumes there is a possible scenario in which delay and increased cost would not result, but in our experience working on these types of approvals, we do not believe such a scenario exists. To begin, local jurisdictions charge additional processing/application fees for general plan and zoning code amendments, which obviously increases the costs of the approval process for the applicant. For example, the City of Beverly Hills recently charged an applicant $93,423.73 to process a general plan amendment, zone text amendment and DPR. 33 Even if all
application fees were waived, an applicant would still incur additional consultant and/or attorney fees to prepare the supplemental application materials, which may be extensive. Builder’s Remedy projects often do not fit neatly within an existing general plan land use designation or zoning district, so the process is often not as simple as rezoning the Builder’s Remedy site from existing zone A to existing zone B. Instead, an entirely new general plan land use designation, zoning district, and/or specific plan would potentially need to be drafted in a way that would be specifically tailored to be consistent with the proposed project. This is not a simple task and there is no real-world scenario in which creating these documents does not add delay and additional cost to the project. As another example, state law mandates that a general plan amendment undergo a 90-day (at minimum) process that would not otherwise be required for other types of applications because local jurisdictions are required to engage in tribal consultation prior to any amendment of a general plan and tribes have 90 days to request consultation after being contacted by the jurisdiction.34 Furthermore, general plan and zoning code amendments must be considered by the Planning Commission (or equivalent body) and the legislative body of the jurisdiction before adoption,35 and changes to the zoning code do not become effective until 30 days after they have been adopted,36 whereas a requirement for legislative approval and delayed ordinance effective dates would not be relevant for other housing development project approvals.

Legislative actions (unlike quasi-judicial permits) are also subject to referendum which could result in substantial delay, cost, and existential risk to any project. As an additional consideration, state law provides that a local jurisdiction’s land use element may generally only be amended up to four times during a single calendar year, which means that a project may need to wait until the following calendar year for the amendment to be approved if the land use element has already been amended four times, or may need to wait until a later hearing date if the jurisdiction is consolidating multiple requests for general plan amendments.37 In short, the “no delay or extra cost” caveat ultimately swallows the 33 This was for planning application PL2400136. 34 Government Code Section 65352.3(a). 35 Government Code Section 65353(a), 65355, 65854, and 65856. 36 Government Code Section 36937.
37 Government Code Section 65358(b), 65302(a) (land use element is a mandatory element). There is an exception to the “four times” rule for residential developers where at least 25% of the units will be occupied by lower or moderate income families, but this exception does not apply to most Builder’s Remedy projects because they are City of Beverly Hills
June 26, 2024

Compton Letter’s initial conclusion since there is seemingly no real-world scenario where the caveat doesn’t apply.

Finally, requiring a general plan and zoning code amendment for a Builder’s Remedy project inappropriately requires a fully discretionary legislative approval to obtain an entitlement that would otherwise only be subject to extremely limited discretion. Short of a completely ministerial process, a Builder’s Remedy project is supposed to be subject to one of the most limited-discretion review processes under state law. The discretion of a decision making body considering a Builder’s Remedy project is so constrained by state law that the decisionmaker can’t even deny the project on the ground that is in direct conflict with the applicable general plan and zoning code. Contrary to this extremely limited scope of review, legislative decisions – including general plan amendments and zoning changes – are subject to extremely broad discretion and are therefore entirely out of place in the processing of a Builder’s Remedy application.

5. Permit Streamlining Act
It is also valuable to look in further detail at the Permit Streamlining Act (PSA). The PSA is exceedingly clear that a city cannot require an applicant to submit an item as part of an application if it is not on the completeness checklist for that application. When a local jurisdiction receives an application for a discretionary housing development project, it is required to process that application in strict compliance with the procedures and timelines in the PSA. The PSA begins with a statement of legislative findings, leaving no doubt regarding the purpose and intent of its requirements: “The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects.”38
The very first sentence of the substantive provisions of the PSA makes good on this intent for application requirements to be clear and specific: “Each public agency shall compile one or more lists that shall specify in detail the information that will be required from any applicant for a development project.”39 (Government Code Section 65940(a)(1), emphasis added.) Section 65941(a) continues: “The information compiled pursuant to Section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”
This list of requirements for a complete application described in Section 65941(a) becomes essential during the initial completeness review and potential resubmittal process, per Section 65943(a):
“Not later than 30 calendar days after any public agency has received an application for a development project, the agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. If the application is determined to be incomplete, the lead agency shall provide the applicant with an exhaustive list of only required to restrict 20% of their units for lower-income households. (Government Code Section 65358(c), 65589.5(h)(3).)
38 Government Code Section 65921 (emphasis added).
39 Section 65940(d) specifically states that ““development project” includes a housing development project as defined in paragraph (3) of subdivision (b) of Section 65905.5.” City of Beverly Hills
June 26, 2024

items that were not complete. That list shall be limited to those items actually required on the lead agency's submittal requirement checklist.”40
The previous sentence (in bold italics) was added by SB 330, the Housing Crisis Act of 2019, indicating that the legislature specifically had housing development projects in mind when this language was added. The Housing Crisis Act also added language to the PSA adding additional assurances that applicants for housing projects would receive clear information from cities about application requirements: “Each city and each county shall make copies of any list compiled pursuant to Section 65940 with respect to information required from an applicant for a housing development project, as that term is defined in paragraph (2) of subdivision (h) of Section 65589.5, available both (1) in writing to those persons to whom the agency is required to make information available under subdivision (a) of that section, and (2) publicly available on the internet website of the city or county.”41 In short, a jurisdiction may only require an applicant to submit the items explicitly identified on the application checklist. If the submitted application includes all of the items on the checklist, then the jurisdiction must determine that the application is complete. This means that a city cannot determine that an application is incomplete on the basis that it does not include a request for a general plan amendment or zone change unless the application completeness checklist explicitly requires the applicant to submit a general plan amendment or zone change for the application to be complete.

As an additional consideration, it should be noted that the PSA (Government Code Sections 65940 and 65941) establishes clear criteria for a jurisdiction to use to determine whether or not an application is complete. There is an important distinction between the criteria for deeming an application complete and the criteria for actually approving an application (i.e., determining the merits of the application). State law clearly envisions general plan and zoning consistency as merits issues, not application completeness issues. This can be seen by reading the PSA in the context of the HAA, particularly Government Code Section 65589.5(j)(2), which states as follows:

If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity as follows:
(i) Within 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.
(ii) Within 60 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains more than 150 units.
40 This is confirmed on page 3 of the HCD’s June 26 letter. 41 Government Code Section 65943(f).

City of Beverly Hills
June 26, 2024

Under this scheme the applicant submits the application, they provide all the information needed for the jurisdiction to determine whether the application is complete, and then – within either 30 or 60 days after the application is determined to be complete – the city must inform the applicant if the proposed project is inconsistent with any applicable development standards, including any standards set forth in the general plan and zoning code.

In other words, state housing law envisions two steps: the application completeness stage and the evaluation stage. During the application completeness stage, the jurisdiction may only assess whether the applicant has submitted an application that includes all of the required checklist information to allow the jurisdiction to evaluate the proposed project against applicable development standards (i.e., a complete application). If not identified on the jurisdiction’s application checklist, the applicant cannot be compelled to make a request for a general plan amendment or zone change as part of this application completeness stage.

6. A General Plan and Zoning Code Amendment Are Not Requirements on the DPR Application Checklist
The Applicant filed the DPR Application using the City’s “Development Plan Review Planning Review Application” (“DPR Application Form”). Section 5 of the DPR Application Form is entitled “Submittal Requirements & Checklist.” This is the application submittal checklist that the City is required to provide to applicants under the PSA to inform them of what materials and information they must submit for a complete application. Significantly, the “Submittal Requirements & Checklist” does not require an applicant to submit a request for a general plan amendment or zone change. Consequently, regardless of whether the application is subject to the Builder’s Remedy, the PSA prohibits the City from requiring the Applicant to submit a request for a general plan and zoning code amendment as a requirement for determining that the DPR Application is complete.

Notably the City updated and revised its DPR Application Form and converted it to a consolidated entitlement form on May 2nd 2024 (long after the Applicant submitted the Project’s DPR Application). The new form more broadly encompass a range of entitlements that could be applicable to commercial, mixed use or multi family residential projects – including identifying the possible need for a General Plan Amendment and zone change. The fact City updated its entitlement form to address this issue reinforces that the City cannot now require this Applicant to submit a General Plan Amendment or zone change because this Project’s DPR Application Form made no such reference in the application checklist of the potential need for those legislative approvals.

The City Is Effectively Denying the Project and Is Acting in Bad Faith If the City Council finds that the Builder’s Remedy does not apply to the Project and continues to require the Applicant to submit a request for a general plan amendment and zone change, then these actions will constitute an illegal disapproval of the Project under the Housing Accountability Act. The Los Angeles Superior Court held only a few months ago that the La Cañada Flintridge City Council had disapproved an application for a Builder’s Remedy project where the City Council denied an appeal of the City’s incompleteness determination, determined that the Builder’s Remedy did not apply to the City of Beverly Hills
June 26, 2024

project, and determined that the project’s preliminary application did not vest the Builder’s Remedy.42 HCD’s June 26 letter further clarifies that “the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the ground of inconsistency. The HAA prohibits such a disapproval.”43 The Housing Accountability Act prohibits a city from disapproving a housing development project for very low, low-, or moderate-income households - which this Project is - unless it makes one of the findings in Government Code Section 65589.5(d)(1)-(5). The Draft Resolution does not include any of these findings, nor are there any grounds to make any of these findings. Consequently, if the City Council adopts the Draft Resolution, it will be acting in direct violation of state law.44 If a court finds that the City violated the Housing Accountability Act, the court will order the City to comply with the Housing Accountability Act within 60 days. Furthermore, the court may issue an order directing the City to approve the Project if it finds that the City acted in bad faith when it disapproved the Project.
45 The court will also require the City to pay the Applicant’s attorney’s fees and court costs.46 If the City fails to comply with the Court’s order, the court will impose fines on the City in the minimum amount of $10,000 per housing unit in the Project, which in this case would result in a minimum fine of $1,650,000.47 Finally, if the court finds that the City acted in bad faith when it disapproved the project and failed to carry out the court’s orders, the court will multiply the fine by a factor of five, which would result in a minimum fine of $8,250,000.48 “Bad faith” under the Housing Accountability Act includes, but is not limited to, “an action that is frivolous or otherwise entirely without merit.”49 As demonstrated in this letter, and as independently verified and supported by HCD’s June 26, 2024 letter, the City’s determination that the DPR Application is incomplete, its continued insistence that the Applicant must apply for a general plan and zoning code amendment, and it position that the Builder’s Remedy does not apply to this Project are, indeed, frivolous and entirely without merit.

Conclusion
For the foregoing reasons we respectfully request that the City Council grant the Appeal, determine that DPR Application is complete, and process the DPR Application in compliance with the requirements of the Builder’s Remedy.
42 California Housing Defense Fund v. City of La Cañada Flintridge, Case No. 23STCP02614, Order on Petitions for Writ of Mandate and Complaints for Declaratory Relief (Filed March 4, 2024), p. 11-13. 43 Page 3 of the letter. 44 Government Code Section 65589.5(k)(1)(A)(i)(I). 45 Government Code Section 65589.5(k)(1)(A)(ii). 46 Id. 47 Government Code Section 65589.5(k)(1)(B). 48 Government Code Section 65589.5(l). 49 Id.

City of Beverly Hills
June 26, 2024

Sincerely,
Dave Rand
Dave Rand
Partner
of RAND PASTER & NELSON, LLP
CC: Mayor Lester Friedman <[email protected]>
Vice Mayor Sharona R. Nazarian, PsyD <[email protected]> Councilmember John A. Mirisch <[email protected]> Councilmember Craig A. Corman <[email protected]> Councilmember Mary N. Wells <[email protected]>
David Snow <[email protected]>
Michael Forbes <[email protected]>
Masa Alkire <[email protected]>
Edgar Arroyo <[email protected]>
Attachments:

HCD Letter to Michael Forbes, entitled “125-129 Linden Drive, Beverly Hills - Letter of Support and Technical Assistance” (June 26, 2024).

STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor

DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT

DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
June 26, 2024
Michael Forbes
Director of Community Development
City of Beverly Hills
Via: [email protected]
455 N Rexford Drive
Beverly Hills, CA 90210
Dear Michael Forbes:

RE: 125-129 Linden Drive, Beverly Hills – Letter of Support and Technical Assistance
This letter provides technical assistance to the City of Beverly Hills (City) regarding the proposed development at 125-129 Linden Drive (Project). This assistance is based upon an inquiry submitted through the California Department of Housing and Community Development’s (HCD) Housing Accountability Unit (HAU) online portal by the Project applicant regarding the ability of the City to require a general plan amendment for the Project. The Project has vested the protections of Government Code section 65589.5, subdivision (d)(5), also known colloquially as the “Builder’s Remedy” under the Housing Accountability Act (HAA).

Background
HCD understands that the Project proposes to construct 165 units on the site, of which 33 units (20 percent of the overall unit count) will be restricted to low-income households. HCD also understands the applicant submitted a preliminary application for the Project pursuant to Government Code section 65941.1 on October 24, 2022. HCD did not certify that the City’s housing element was substantially compliant with state law until May 1, 2024. Therefore, at the time the Project’s preliminary application was filed, the City would not have been able to make the finding in Government Code section 65589.5, subdivision (d)(5), to deny the Project. The Project vested the noncompliant status of the housing element at the time of submittal in October 2022.1 1 This assumes that the preliminary application has not expired and that the Project has not been changed beyond what is permitted in Government Code section 65941.1, subdivision (c).

Exhibit 1
Michael Forbes, Director of Community Development, City of Beverly Hills

HCD understands the applicant then filed a full Development Plan Review application for the Project on April 14, 2023, which was within the six-month statutory time period required by Government Code section 65941.1, subdivision (d), to maintain the vested rights conferred by the preliminary application. The City issued an incomplete letter on May 12, 2023, instructing the applicant to pursue a general plan amendment and zone change (GPA/ZC). On August 9, 2023, the applicant submitted a response to comments contained in the incomplete letter, and on October 13, 2023, the City restated that the Project must submit for a GPA/ZC.
2 The applicant provided a second response letter on
January 10, 2024, before eventually requesting an appeal of the City’s incompleteness letter on January 11, 2024. An incomplete letter for the January response letter was provided on February 9, 2024. A third resubmittal was received on May 9, 2024, with the incompleteness letter sent on June 7, 2024. The appeal is scheduled to be heard by the City Council on June 27, 2024.

General Plan Amendment and/or Zone Change Requirements and the Housing Accountability Act’s Builder’s Remedy
HCD issued a related letter to the City of Compton on March 28, 2024 that answered the question: Does the HAA prevent a city from requiring that a project application include a request to amend the general plan/zoning code in order to avoid a legal nonconformity if/when the project is approved? In short, HCD answered that no provision in the HAA prevents a local government from requesting a general plan/zoning code amendment to avoid a legal non-conformity, and the letter went on to warn that such a requirement may lead to a violation of the HAA.

While it remains true that the statutory language in the HAA does not expressly prevent the City from requesting or requiring legislative actions (e.g., a GPA/ZC) that would be required for similar projects where the Builder’s Remedy does not apply, requiring such action where the Builder’s Remedy does apply leads to an absurd outcome. As a result, HCD wishes to provide clarification on this topic.

The HAA is clear that a project protected by the Builder’s Remedy may not be disapproved for inconsistency with a jurisdiction’s general plan and zoning ordinance.3 Accordingly, a jurisdiction that refuses to process or approve a project subject to the Builder’s Remedy due to the applicant’s refusal to submit a GPA/ZC requested or required by the jurisdiction to resolve such an inconsistency violates the intent of the HAA.
2 Note: The Applicant submitted the materials via email to the City on August 9, 2023, but the City later responded claiming they never received the August 9, 2023 submittal because it had been blocked by its email security system. At the request of the City, the Applicant then provided another electronic submission on September 18, 2023, which the City received. The City started the 30-day review clock from this date.
3 Gov. Code, § 65589.5, subd. (d)(5).

Michael Forbes, Director of Community Development, City of Beverly Hills

Indeed, where a jurisdiction cannot lawfully disapprove a project for inconsistency with the general plan or zoning ordinance, it would be illogical if the jurisdiction could lawfully disapprove a project for failing to resolve that very inconsistency. In other words, the requirement for a GPA/ZC is essentially a requirement for consistency, and disapproving the project for failure to resolve that inconsistency is effectively a disapproval on the grounds of inconsistency. The HAA prohibits such a disapproval.4 Determining Application Completeness under the Permit Streamlining Act Even if a GPA/ZC were permitted under the HAA, the Permit Streamlining Act (PSA)5 prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist. The City cannot determine that an application is incomplete on the basis that it does not include a request for a GPA/ZC unless the submittal requirement checklist included a requirement for the applicant to submit a GPA/ZC.

In determining what constitutes a complete application, the City is subject to the limitations imposed by the PSA. When the City receives an application for a discretionary housing development project, it is required to process the application in compliance with the procedures and timelines stated in the PSA. The PSA states that “[e]ach public agency shall compile one or more lists that shall specify in detail the information that will be required from any applicant for a development project,”6 and furthermore, that “[t]he information compiled pursuant to Government Code section 65940 shall also indicate the criteria which the agency will apply in order to determine the completeness of any application submitted to it for a development project.”7 For a completeness determination, the City shall provide a list of items that were not complete and “[t]hat list shall be limited to those items actually required on the lead agency's submittal requirement checklist.”8
4 HCD understands the desire to have development consistent with general plans and zoning, and to that end, jurisdictions may undertake a GPA/ZC independently from a development application. Jurisdictions should be advised that it may not be possible to process a projectspecific GPA/ZC concurrently with project review, even when a jurisdiction is initiating the GPA/ZC itself. For a jurisdiction in which there may be multiple applications for projects subject to the Builder’s Remedy, and the jurisdiction wishes to achieve general plan and/or zoning consistency, it may choose to “batch” amendments after project development applications are approved to ensure housing development projects are not unduly delayed or otherwise impacted. 5 Gov. Code, § 65920 et seq.
6 Gov. Code, § 65940, subd. (a)(1).
7 Gov. Code, § 65941, subd. (a).
8 Gov. Code, § 65943, subd. (a).

Michael Forbes, Director of Community Development, City of Beverly Hills

In this case, the City’s submittal checklist did not include a requirement for a GPA/ZC at the time of submittal, and therefore, the City cannot require either as part of the application.9
Conclusion
Under the HAA, the City should not require applicants of projects protected by the Builder’s Remedy to seek amendments to the City’s general plan or zoning code. Even if such amendments could somehow be required without violating the intent of the HAA, the PSA prohibits the City from using the absence of the GPA/ZC application as a reason to determine a project application is incomplete, if the requirement was not on the submittal requirement checklist.

For the proposed Project on Linden Drive, the City Council should grant the appeal and direct City staff to process the Project without further delay and without imposing a requirement for a GPA/ZC.

If you have any questions regarding the content of this letter or would like additional technical assistance, please contact Bentley Regehr at [email protected].

Sincerely,
Shannan West
Housing Accountability Unit Chief
9 Requiring a GPA/ZC as part of the project application inherently requires a determination of whether the project is consistent with the general plan and zoning code. However, the HAA suggests that a determination of consistency may not be permitted during the application completeness determination phase but must instead occur after the application completeness determination. (Gov. Code, § 65589.5, subds. (j)(2)(A), (h)(10).) Therefore, it may be inappropriate to require a GPA/ZC as part of a determination of application completeness. &ƌŽŵ͗ƌŽƐĂďĞƌŵĂŶф х
^ĞŶƚ͗dƵĞƐĚĂLJ͕:ƵŶĞϮϱ͕ϮϬϮϰϵ͗ϮϭD
dŽ͗
ĚŐĂƌƌƌŽLJŽфĞĂƌƌŽLJŽΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐх͖tĞď,DzKZE/dzKhE/> фDzKZE/dzKhE/>ΛďĞǀĞƌůLJŚŝůůƐ͘ŽƌŐх
Đ͗<ĞŶ'ŽůĚŵĂŶф х
^ƵďũĞĐƚ͗ZĞ͗ϭϮϱͲϭϮϵ^͘>ŝŶĚĞŶƌŝǀĞͲŝƚLJŽƵŶĐŝůWƵďůŝĐ,ĞĂƌŝŶŐ/ŶĨŽƌŵĂƚŝŽŶ͗:ƵŶĞϮϳ͕ϮϬϮϰ ໚ CAUTION: EXTERNAL SENDER ໚
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.

Dear City Council Members and Members of the City Planning Commission, Re: 125-129 S. Linden Project
I am a long-time resident at McCarty and Charleville, and I submitting these comments for the meeting on June 27 re the Incomplete Application for the Linden project. Please delete my address for publication.

A project of this scope and magnitude, 19-stories high, totally out of proportion at this location on Linden between Wilshire and Charleville, steps away from the Good Shepherd Elementary School, and a few blocks away from Beverly High School, would significantly and adversely impact the character of our neighborhood, already heavily trafficked, and the quality of life of our residents.

As the 1128-page report shows, the City has informed the applicant several times that its application is "incomplete," especially noting in one of its communications that because they re-submitted their application with substantially different features, the initial application under the Builder's Remedy was no longer effective, and their reliance on pronouncements by the HAA is unfounded.

I hope and pray that the City remains firm in its position that the application is incomplete, rejects it categorically, and puts an end to this project.

Thank you,
Rosa Berman
McCarty Drive
CAUTION: EXTERNAL SENDER
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.

From: Jerry Jolton
To: City Clerk
Cc: Ken Goldman
Subject: 125-192 Linden Project
Date: Thursday, June 27, 2024 11:56:40 AM
Some people who received this message don't often get email from . Learn why this is important
Good evening City Council,
We have been residents in the for 25 years. As
far back as I can remember, Beverly Hills has always been synonymous with being a safe and an aesthetically beautiful area, protected from extensive growth with excessively tall commercial buildings and high-rises. To be transparent, we are not against improvements within our city BUT within reason, adhering to a reasonable height limitation while preventing additional traffic gridlock. Aesthetically, this project is beautiful, but where does this end if builders keep pushing the envelope with no limit on the established boundaries! All this over-development would seriously affect the quality of our residential life over the entire Southwest area. The build out proposal on this Linden site compounds and augments many of the concerns of our residents and the site is not appropriate for a mixed-use development of a high traffic structure with residents and guests coming and going at all times of day and evening. Ingress, egress and navigating our automobiles at this portion of our very narrow street is challenging enough for various reasons. During construction we envision there will be many times each day that we will not be allowed access to drive on the street, similar to what transpired with The Rosewood project currently and The One, with its reduction in lanes. Parents need to have easy access for pick-up and drop off of their children on Linden & Charleville at the Good Shephard Catholic School as well, not to mention the disruptive level of construction and truck noise that will be excessive for neighbors and the school extensively for years. We are speaking out in strong opposition to this aggressive proposal as it currently stands. Nineteen (19) stories, 165 units, 73 hotel rooms with a restaurant and the construction of a 4- level subterranean parking structure is without question, excessive and out of line for this location.

Traffic volume, speeding and running stop signs are already unacceptable in the Southwest area, so this will without question increase the number of irresponsible, frustrated drivers creating even more safety issues.

This bears repeating, we must take into serious consideration how disruptive not only it will be during the years of construction, but post construction as well if this proposed project were to gain approval.

Thank you,
Jerry & Sandi Jolton
CAUTION: EXTERNAL SENDER
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.

From: Jaime Del Rio
To: City Clerk
Cc: Tami Kagan-Abrams
Subject: Support for 125-129 S. Linden Drive
Date: Tuesday, June 25, 2024 5:24:56 PM
Attachments: 125-129 S. Linden Drive BH.pdf
Some people who received this message don't often get email from . Learn why this is important
Hello City Clerck
Please see attached for our support of the 125-19 S Lindon Drive project.

Jaime C. Del Rio
Director of Organizing
E: [email protected]
W: www.abundanthousingla.org
We request that candidates do not send us confidential campaign strategy information, including polling data or other information that is not publicly available.

CAUTION: EXTERNAL SENDER
Be cautious when clicking links or opening attachments. Verify the sender's email address and be on the lookout for phishing attempts.

From: James Lloyd
To: 11-Lester Friedman; 12-Sharona Nazarian; John Mirisch; 13-Craig Corman Cc: City Clerk; 6-Laurence Wiener; Michael Forbes; Masa Alkire; WebCBH CITYMANAGER Subject: CalHDF comment re 125-129 South Linden Dr for 27 June 2024 Council meeting Date: Tuesday, June 25, 2024 11:51:29 AM
Attachments: Beverly Hills - 125- 129 S Linden Dr - HAA Letter - 27 June 2024.pdf Dear Beverly Hills City Council,
Please see attached CalHDF's public comment regarding 125-129 South Linden Dr, calendared as agenda item F2 for the 27 July 2024 Council meeting.

Sincerely,
James M. Lloyd
Director of Planning and Investigations
California Housing Defense Fund
[email protected]