B0785-1756\3227466v4.doc
AGENDA REPORT
Meeting Date: March 24, 2026
Item Number:
To: Honorable Mayor & City Council
From: Laurence S. Wiener, City Attorney
David M. Snow, Assistant City Attorney
Subject: A RESOLUTION OF THE COUNCIL OF THE CITY OF BEVERLY HILLS RESCINDING RESOLUTION NO. 24-R-13515 DENYING THE
APPEAL OF STAFF’S INCOMPLETE APPLICATION
DETERMINATION REGARDING A BUILDER’S REMEDY PROJECT
AT 125 - 129 SOUTH LINDEN DRIVE IN RESPONSE TO WRIT OF
MANDATE ISSUED BY THE SUPERIOR COURT
Attachments: 1. Draft Resolution
2. Superior Court of California, County of Los Angeles - Ruling on Petitions for Writ of Mandate (August 12, 2025)
RECOMMENDATION
Staff recommends that the City Council adopt a resolution rescinding Resolution No. 24-R13515 (Attachment 1).
INTRODUCTION
This report recommends adopting a resolution that rescinds Resolution No. 24-R-13515, through which the City Council denied an appeal of an incomplete application determination for the “Builder’s Remedy” project at 125-129 South Linden Drive. In a judgment granting two petitions related to this project, the Superior Court for the County of Los Angeles ruled that Resolution No. 24-R-13515 must be vacated and that the City must process the Development Plan Review application for this project.
DISCUSSION
On April 7, 2023, Rand Paster & Nelson, LLP, on behalf of 9300 Wilshire, LLC (the “Applicant”), filed a Development Plan Review (“DPR”) application for a new 19-story, 200-foot tall, mixed use building (the “Project”) at 125-129 South Linden Drive. The commercial portion of the Meeting Date: March 24, 2026
B0785-1756\3227466v4.doc
Project consists of a 73-room hotel and restaurant located on the first through fifth floors of the building. The residential portion consists of 165 apartment dwelling units, ranging from studio to two-bedroom units, located on the sixth through the 19th floors of the building, with 20% of the units (33 units) proposed to be reserved for rental to lower income households. The Applicant submitted the DPR application as a “Builder’s Remedy” project, which relied on the provisions of the Housing Accountability Act (“HAA”), codified in Government Code § 65589.5 as in effect at that time, by providing at least 20 percent of the total units in the development to lower income households. The City issued two letters, on May 12, 2023 and October 13, 2023, that deemed the application incomplete. The Applicant responded to the first incompleteness letter with a revised Project plan and appealed the second incompleteness letter. The City issued four additional incompleteness letters on February 9, 2024, June 7, 2024, September 5, 2024, and October 11, 2024.
On June 27, 2024, following a hearing on the matter, the City Council adopted Resolution No. 24-R-13515, denying the Applicant’s appeal of the October 13, 2023 incomplete application determination and upholding the City’s incomplete application determination. Resolution No. 24-R-1351 included several justifications for denying the appeal, including: (1) the appeal was untimely; (2) the appeal was mooted by subsequent incomplete application determinations that the Applicant failed to appeal; (3) the DPR application failed to include certain required information when the Applicant filed the appeal and at the time of the hearing; and (4) the DPR application did not qualify as a “Builder’s Remedy” project. The City’s reasoning relied in part on its conclusion that the preliminary application failed to meet the requirements of Government Code § 65941.1, because the Project for which the DPR application was submitted differed substantially from the one proposed in the preliminary application.
On June 28, 2024, Californians for Homeownership, Inc. filed a Verified Petition for Writ of Mandate in the Superior Court for the County of Los Angeles. On September 13, 2024, the Applicant filed a Verified Petition for Writ of Mandate in the same Court.
The Court held a hearing on both writ petitions on May 15, 2025. On August 12, 2025, the Court issued its ruling granting the petitions, finding that the City violated the HAA and Permit Streamlining Act (“PSA”) in deeming the preliminary application expired and further, violated the PSA in denying the Applicant’s appeal of the City’s incompleteness determination. Contrary to the City’s interpretation of Government Code § 65941.1, the Court found that the Applicant’s preliminary application had not expired; furthermore, the Court determined that the Project described in the DPR application qualified as a “Builder’s Remedy” project. Although the petitioners requested it, the Court concluded that the City had not acted in bad faith.
The Court ruled that the City must set aside and vacate Resolution No. 24-R-13515. The Court ordered that the preliminary application shall be deemed complete and the City must now process the Applicant’s DPR application for the Project.
ENVIRONMENTAL ASSESSMENT
The recommended action has been assessed in accordance with the California Environmental Quality Act (CEQA, Public Resources Code Sections 21000 et seq.), the State CEQA Guidelines (California Code of Regulations, Title 14, Section 15000 et seq.), and the environmental regulations of the City. Pursuant to the State CEQA Guidelines Section 15378(b)(5), rescission of the prior resolution regarding the application’s completeness is exempt from CEQA as an administrative governmental activity that will not result in direct or indirect physical changes in the environment.
Meeting Date: March 24, 2026
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PUBLIC OUTREACH AND NOTIFICATION
No public notice is required for this matter, however, a courtesy notice has been sent to the list of interested parties for this Project, and the Applicant has been informed of this agenda item.
FISCAL IMPACT
Rescission of the City Council’s prior action will not result in any fiscal impacts to the City.
Laurence S. Wiener
City Attorney
Approved By
Attachment 1
B0785-1756\3227464v4.doc
RESOLUTION NO. 26-R-________
A RESOLUTION OF THE COUNCIL OF THE CITY OF
BEVERLY HILLS RESCINDING RESOLUTION NO. 24-R13515 DENYING THE INCOMPLETE
APPLICATION DETERMINATION REGARDING A
- 129 SOUTH LINDEN
DRIVE IN RESPONSE TO WRIT OF MANDATE ISSUED BY
THE SUPERIOR COURT
The City Council of the City of Beverly Hills herby finds, resolves and determines as follows:
Section 1. On April 7, 2023, Rand Paster & Nelson, LLP, on behalf of 9300 Wilshire, A , filed a Development Plan Review ( DPR ) application for a new 19-story, P -129 South Linden Drive. The commercial
portion of the Project consists of a 73-room hotel and restaurant located on the first through fifth floors of the building. The residential portion consists of 165 apartment dwelling units, ranging from studio to two-bedroom units, located on the sixth through the 19th floors of the building, with 20% of the units (33 units) proposed to be reserved for rental to lower income households. The Applicant submitted the
provisions of the Housing Accountability Act ( HAA ), as codified at that time in Government Code § 65589.5, by providing at least 20 percent of the total units in the development to lower income households. The City issued two letters, on May 12, 2023 and October 13, 2023, that deemed the application incomplete. The Applicant responded to the first incompleteness letter with a revised Project plan and appealed the second incompleteness letter. The City issued four additional incompleteness letters on February 9, 2024, June 7, 2024, September 5, 2024, and October 11, 2024.
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Section 3. On June 27, 2024, following a hearing on the matter, the City Council adopted Resolution No. 24-R-13515, denying the appeal of the October 13, 2023 incomplete application determination and incomplete application determination. The City Council provided several reasons for its denial of the appeal, including:
(1) the appeal was untimely; (2) the appeal was mooted by subsequent incomplete application determinations that the Applicant failed to appeal; (3) the DPR application failed to include certain required information when the Applicant filed the appeal and at the time of the hearing; and (4) the DPR a
Section 4. On June 28, 2024, Californians for Homeownership, Inc. filed a Verified Petition for Writ of Mandate in the Superior Court for the County of Los Angeles. On September 13, 2024, the Applicant filed a Verified Petition for Writ of Mandate in the same Court. The Court held a hearing on both writ petitions on May 15, 2025. On August 12, 2025, the Court issued a ruling granting the petitions, finding that the City violated the HAA and Permit Streamlining Act in deeming the preliminary application expired and further, violated the PSA in denying the Applicant Although the petitioners
requested it, the Court concluded that the City had not acted in bad faith.
Section 5. In compliance with ruling that Resolution No. 24-R-13515 shall PR application for the Project, the City
Council hereby rescinds Resolution No. 24-R-13515 in its entirety. ///
///
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Section 6. The City Clerk shall certify to the adoption of this resolution and shall cause this resolution and her certification to be entered in the Book of Resolutions of the Council of this City.
Adopted:
SHARONA R. NAZARIAN, PSYD
Mayor of the City of Beverly Hills,
California
ATTEST:
_______________________________
HUMA AHMED
City Clerk
(SEAL)
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
LAURENCE S. WIENER
City Attorney
NANCY HUNT-COFFEY
City Manager
Attachment 2
Superior Couxt of California FILED Superior Court of California County of Los Angeles County of Los Angeles AUG-42-2925
; David W. Slayton, Executive Officen/Clerk of Court
9300 WILSHIRE LLC, a By: M. Mort, Deputy
Delaware limited liability
company,
Petitioner,
Case No. 24STCP02964
(related to 24STCP02082)
Vs.
RULING ON PETITIONS FOR
WRIT OF MANDATE
CITY OF BEVERLY HILLS, Dept. 86 (Hon. Curtis A. Kin)
et al., .
Respordents.
I.
INTRODUCTION
In related cases, petitioners Californians for Homeownership, Inc. (“CFH”) and 9300 Wilshire, LLC (“9300 Wilshire” or “Applcant”) have separately filed petitions seeking a writ of mandate compelling respondent City of Beverly Hills (“City”) to comply with Government Code § 65589.5 of the Housing Accountability Act (“HAA”) and process 9300 Wilshire’s Developmert Plan Review Application (“DPR Application”) for a housing development project located at 125-129 South Linden Drive in Beverly Hills. Additionally, petitioner 9300 Wilshire seeks a writ of mandate compelling City to comply with the Permit Streamlining Act (“PSA”) by setting aside the denial of petitioner’s appeal and determining that the DPR Application is complete. Petitioners further seek a finding that City acted in bad faith in rejecting the DPR Application. _
Pursuant to the parties’ stipulation, the Court entered an order consolidating CFH’s and 9300 Wilshire’s petitions for purpcses of briefing and hearing, but indicating separate judgments would issue in each case. (3/28/25 Order.) For the reasons that follow, the petitions are GRANTED.
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BACKGROUND
A. Proposed Project
On October 21, 2022, Applicant submitted to City a preliminary application pursuant to Government Code § 65941.1(a), which was deemed filed upon payment of the associated fee on October 24, 2022. (AR CITY 285, 1121-47; AR EML 1-3.) The preliminary application proposed a project consisting of 200 residential units that included 40 lower income units within a 259.547 gross square foot building with 16 stories, located at 125-129 South Linden Drive in Beverly Hills (“PA Project”). (AR CITY 1126-28, 1132, 6934.) Because City was not within substantial compliance with the Housing Element Law (Gov. Code § 65580, et seq.) when the preliminary application was deemed filed, Applicant sought approval of the PA Project pursuant to the “Builder’s Remedy” provision of Government Code § 65589.5(d) of the HAA. (AR CITY 1121) Upon filing the preliminary application, Applicant secured vested rights to a “Builder's Remedy” project, which precluded City from disapproving the application based on inconsistency with the City’s land use standards, including its General Plan and zoning code. (AR CITY 4695.)
Thereafter, on April 7, 2023, Applicant submitted its DPR Application for review by the City, which was deemed filed on April 14, 2023 when the application fee was paid. (AR CITY 329-334; AR EML 35.) Unlike the PA Project, the project proposed in the DPR Application at 125-129 South Linden Drive consisted of a 19-story residential and hotel building containing 165 residential units and 73 hotel rooms with a hotel restaurant, of which 33 residential units (i.e., 20% of the 165 units) would be designated as affordable for lower income households (“DPR Project”). (AR CITY 329-30, 1179.) Because approximately 77% (165,374 out of 213,408 square feet) of the project is designated for residential use, the DPR Project qualifies as a “housing development project” under the HAA. (AR CITY 1184; Gov.
Code § 65589.5(h) [“Housing development project” includes “[m]ixed-use developments consisting of residential and nonresidential uses” if “[a]t least twothirds of the new or converted square footage is designated for residential use”].) B. City’s Incompleteness Letters
On May 12, 2023, City issued a letter stating that the DPR Application was “deemed incomplete” for various reasons set forth in the letter (“First Incomplete Letter”). (AR CITY 338-56.) Of note, the First Incomplete Letter stated that the preliminary application for the project “is deemed to be of no further effect due to changes in the project.” (AR CITY 338.) Specifically, City explained that “[t]he project that was submitted as part of the PA... consisted of a residential-only project that included 200 dwelling units” in a 16-story building but “[t]he project for which the DPR application was submitted . . . is substantially different” in that it consists of “a new 19-story mixed use, multifamily residential and hotel building,” 2 fe fraghe'
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with 165 rental apartment units, 73 hotel rooms, and a restaurant. (AR CITY 339, emphasis in original.) The First Incomplete Letter further stated that additional applicaticns to the City’s General Plan and zoning ordinances would be required to enable processing of the project. (AR CITY 338-40.) The First Incomplete Letter ended with the instruction that Applicant should resubmit plans and/or application materials for the City to continue processing the case. (AR CITY 356.) On August 9, 2023, Applicant submitted a revised project plan and additional information in response to the First Incomplete Letter. (AR CITY 387-886, 1769.) On October 13, 2023, City issued a second letter, which stated that the DPR Application continued to be “deemed incomplete” due to certain missing items and repeated its position that “the previously filed Preliminary Application relating to the project site is deemed to be of no further effect due to changes in the project” (“Second Incomplete Letter”).! (AR CITY 887.) City also asserted that the preliminary application had expired because the application had not been corrected within 90 days of issuance of the First Incomplete Letter. (AR CITY 889.) C. Appeal, Hearing, and Other Pre-Litigation Developments . On November 18, 2023, Applicant sent City a letter to appeal the Second Incomplete Letter and submitted the required fee on January 11, 2024. (AR CITY 1112-20, 2469; AR EML 506.) The hearing on the appeal was initially scheduled for March 11, 2024, but it was ultimately continued to June 27, 2024. (AR CITY 4427, 4456, 4703.)
In the interim and continuing beyond the hearing date, Applicant responded to the Second Incomplete Letter on January 10, 2024 (AR CITY 2000-2468), which was followed by a series of incompleteness letters and responses thereto between the City and Applicant. City issued incompleteness letters on February 9, 2024 (AR CITY 4351-4426), June 7, 2024 (AR CITY 4618-4694), September 5, 2024 (AR CITY 7416-7511), and October 11, 2024 (AR CITY 7574-7586), to which Applicant responded on May 9, 2024 (AR CITY 4496-4594), August 6, 2024 (AR CITY 7283-7407), and September 11, 2024 (AR CITY 7512- 7562), respectively.
Notably, each incompleteness letter reiterated that the previously filed Preliminary Application was deemed to be of no further effect due to changes in the project and that the DPR Project required additional applications for amendments to the City’s General Plan and Ordinances. (AR CITY 338, 887, 4351, 4618, 7416, 7574.) By the sixth incompleteness letter, issued October 11, 2024, City
acknowledged that all the required items from the DPR Application Checklist had 1 Under Government Code § 65943(b), City was required to respond to.
Applicant’s resubmittal within 30 days. However, City claims that, due to an email system glitch, it did not become aware of Applicant’s response until September 15, 2023. (AR CITY 887, 1771.)
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been submitted and addressed, but the City nonetheless deemed the application incomplete because the Preliminary Application was “of no further effect due to the incorporation of the hotel and restaurant uses into the DPR application,” which meant that “additional applications for amendments to the City’s General Plan and zoning ordinances are required to enable processing of the proposed Project.” (AR CITY 7574-75.)
On June 26, 2024, the Housing and Community Development Department (“HCD”) issued a Letter of Support and Technical Assistance to the City, stating that the Project “has vested the protections of the Government Code section 65589.5, subdivision (d)(5), also known colloquially as the ‘Builder’s Remedy’ under the Housing Accountability Act (HAA)” because the City’s housing element was not substantially compliant with state law when the Project’s preliminary application was filed. (AR CITY 4695.) Further, the HCD concluded that “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.” (AR CITY 4698.) Thus, the HCD stated that, “[flor the proposed Project on Linden Drive, the City Council should grant the appeal and direct City staff to process the Project.” (AR CITY 4698.) Prior to the hearing on Applicant’s appeal, City published an Agenda Report detailing the reasons why the City Council should deny the appeal and uphold the incompleteness determination. (AR CITY 4701-11, 4713-24.) A lengthy hearing was held on June 27, 2024. (AR CITY 7102-7282.) During the hearing, arguments were made by City staff (AR CITY 6932-49; 7105-14) and Applicant’s counsel (AR CITY 7131-39). City staff characterized the completeness determination as requiring discretion, as opposed to being purely ministerial, to which Applicant’s Counsel raised counterarguments. (AR CITY 7132-39, 7178, 7184-7258.) Additionally, public testimony was provided, and the City Council asked questions of the representatives of City and Applicant. (AR CITY 7102-7281.)
Following the hearing and deliberation, the City Council unanimously adopted Resolution No. 24-R-13515, denying Applicant’s Appeal. (AR CITY 6950-62, 7281.) , Among the reasons for denial, the City Council determined that: (1) the Appeal was untimely (AR CITY 6953); (2) the Appeal was mooted by Applicant’s subsequent supplementation of the DPR Application and failure to appeal City’s incompleteness determinations as to those supplemental submissions (AR CITY 6958); (8) certain required information was missing from the DPR Application when the Appeal was filed and was still missing at the time of the hearing (AR CITY 6954-55); and (4) the -DPR Application did not qualify as a Builder’s Remedy Project because it was fora project substantially different from the PA Project. (AR CITY 6956-58.) The 7, 6 Resolution explained City’s “substantially different” rationale as follows:
Based on the introduction of the new hotel use in the DPR Project, which was not contemplated in the PA project, the City Council concludes the DPR Project submittal is for a project substantially different from the PA Project, and that the DPR application, although filed within 180 days of the filing of the PA, is not sufficient to meet the filing requirement of Govt. Code Section 65941.1(d)(1). Therefore, the City Council finds that the PA has expired and is of no further force or effect.
(AR CITY 6958.) The City Council also reasoned that the DPR Project did not qualify as a Builder’s Remedy Project because Applicant did not file a complete DPR Application within 90 days of the City’s initial incompleteness letter. (AR CITY 6959.) Lastly, the City Council found that the DPR Application could not be processed because Applicant was required to submit applications for amendments to the City’s General Plan and zoning ordinance. (AR CITY 6959-60.) Following the City Council’s denial of Applicant’s appeal, on August 22, 2024, the HCD issued a Notice of Violation to City, stating that the City’s “failure to accept. the application for processing is in violation of state housing law.” (AR CITY 7408.) With respect to the issue of whether the DPR Project should be deemed a Builder’s Remedy Project, the HCD stated:
The preliminary application shall remain vested unless the number of residential units or square footage of construction changes by 20 percent or more.... Other changes to the application falling outside these circumstances do not void vested rights under the preliminary application.
(AR CITY 7410, footnote omitted.) The HCD also concluded that City’s failure to accept the application for processing due to the lack of a General Plan Amendment and Zoning Ordinance change violated the HAA and PSA. (AR CITY 7411.) City responded to the HCD’s Notice of Violation on September 19, 2024 and refuted all points within the Notice. (AR CITY 7563-73.)
On December 2, 2024, HCD issued a second Notice of Violation regarding the City’s processing of Builder’s Remedy Projects, including the one on Linden Drive at issue here. (RJN Ex. F.)? The HCD reiterated that General Plan amendments and zoning ordinance changes are not required for Builders Remedy Projects. (RJN Ex. F at 1.) The HCD further explained that the 90-day response deadline under Government Code § 65941.1(d)(2) “resets each time the City makes an
incompleteness determination.” (RJN Ex. F at 1.) Thus, “a project with multiple 2 Petitioners refer to exhibits attached to their Request for Judicial Notice by letter. Respondent refers to exhibits attached to its Request for Judicial Notice by number. The Court thus uses “RJN” interchangeably when citing petitioners’ and respondent’s respective Requests for Judicial Notice.
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incompleteness letters and responses may have multiple 90-day periods.” (RJN Ex. F at 3.) Lastly, concerning the Builders Remedy, the HCD emphasized that a “preliminary application remains vested unless the number of residential units or square footage of construction changes by 20 percent or more.” (RJN Ex. F at 1.) Specifically with respect to the DPR Project on Linden Drive, the HCD noted the City deemed the application incomplete on the ground that the “preliminary application divests because of addition of commercial use.” (RJN Ex. F at 4.) The HCD, however, concluded that such commercial use “modification|[] . . . do[es] not void the vesting created by the preliminary application submittal.” (RJN Ex. F at 6.) D. Procedural History
On June 28, 2024, petitioner CFH filed a Verified Petition for Writ of Mandate in LASC No. 24STCP02082. On July 31, 2024, City filed its answer to that petition.
On September 13, 2024, petitioner 9300 Wilshire filed a Verified Petition for Writ of Mandate in LASC No. 24STCP02964. On October 24, 2024, City filed its answer to that petition.
On December 19, 2024, the Court found that case nos. 24STCP02082 and 24STCP02964 were related within the meaning of California Rules of Court, rule
3.300(a).
On March 28, 2025, pursuant to the parties’ stipulation, the Court entered an Order consolidating the related matters for briefing and hearing. The petitioners filed a joint opening brief on March 17, 2025. On April 23, 2025, City filed an opposition brief, to which petitioners filed a joint reply on April 30, 2025. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.
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EVIDENTIARY ISSUES
City partially objects to petitioners Request for Judicial Notice as it concerns Exhibits B-G. These objections are OVERRULED.
Petitioners’ request to take judicial notice of Exhibits A is GRANTED pursuant to Evidence Code § 452(a)-(c). Petitioner’s request to take Judicial Notice of Exhibits B and Gis GRANTED pursuant to Evidence Code § 452(d). Petitioner’s request for judicial notice of Exhibits C-E and J is GRANTED, pursuant to Evidence Code § 452(b). Petitioner’s request to take judicial notice of Exhibits F, H, and I are GRANTED, pursuant to Evidence Code § 452(c). With regard to Exhibits D-F, the Court shall only take judicial notice of the existence of those documents, but not the truth of their content. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.) City’s request to take judicial notice of Exhibits 1-2 and 5 is GRANTED, pursuant to Evidence Code § 452(a)-(c), and (h). City’s request to take judicial notice of Exhibit 3 is GRANTED pursuant to Evidence Code § 452(c) and (h). City’s request to take judicial notice of Exhibit 4 is GRANTED pursuant to Evidence Code § 452(b)- (c) and (h). City’s request to take judicial notice of Exhibit 6 is GRANTED pursuant to Evidence Code § 452(b) and (h).
IV.
DISCUSSION
At issue here is whether City correctly determined that Applicant’s Preliminary Application expired and thereby caused Applicant’s project to lose its vested right in the HAA’s Builder’s Remedy. For the reasons that follow, the Court finds that, in violation of the HAA and PSA, City deemed the Preliminary Application expired. The Court further finds that City violated the PSA in other respects when denying Applicant’s appeal of the City’s incompleteness determination.®
A. The Housing Accountability Act (“HAA”) & Builder’s Remedy Under the HAA, a municipality may not “disapprove” a qualifying affordable housing project on the grounds it does not comply with the municipality's zoning and general plan if the developer submitted either a statutorily defined “preliminary application” or a “complete development application” while the city’s housing element was not in substantial compliance with state law. (See Govt. Code § 65589.5(d)(5), (h)(5), (0)(1).)4 This provision, colloquially known as the “Builder's Remedy,” incentivizes compliance with the Housing Element Law by suspending the power of non-compliant municipalities to enforce their zoning rules against qualifying affordable housing projects while the municipalities are out of compliance. The HAA states that “[i]t is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5(a)(2)(L).)
3 Per the parties’ stipulation, the Court does not address (1) whether the lack of a General Plan amendment and Zoning Ordinance was grounds to deny the DPR Application as incomplete or (2) whether the 90-day expiration period for preliminary applications under Government Code § 65941.1 resets each time the City makes an incompleteness determination. (3/28/25 Stipulation & Order at 2.) The parties stipulate that neither of these issues may serve as an independent basis for determining that the City’s decision was lawful and that neither of these issues may serve as a basis for denying or granting the Petition. (Zbid.) 4 Statutory references are to the Government Code, unless otherwise stated. 7 Pursuant to Government Code § 65589.5(m)(1), actions to enforce provisions of the HAA “shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure.” In such actions, “it is inappropriate for [courts] to defer to the City’s interpretation.” (California Renters Legal Advocacy & Education Fund v. City of San Mateo (“CARLA”) (2021) 68 Cal.App.5th 820, 844.) Instead, the trial court must apply a “more rigorous independent review. . . in order to prevent the City from circumventing what was intended to be a strict limitation on its authority.” (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 299.) With respect to factual issues, “instead of asking, as is common in administrative mandamus actions, ‘whether the City's findings are supported by substantial evidence’ [citation], we inquire whether there is ‘substantial evidence that would allow a reasonable person to conclude that the housing development project’ complies with pertinent standards. (§ 655589.5, subd. (f)(4).) As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)” (CARLA, 68 Cal.App.5th at 837.)
B. The Permit Streamlining Act (“PSA”) & Preliminary Applications The PSA was enacted to clarify the approval of development projects and to expedite decision-making associated with those projects (§ 65920, et seq.) In 2019, as part of the Housing Crisis Act, the PSA was amended to create a preliminary application process pursuant to which an applicant’s right to the HAA Builder’s Remedy may vest upon submission. (See § 65589.5(d)(5), (h)(5), (0)(1).) Under Section 65941.1(a), the preliminary application must include 17 different items and/or pieces of information regarding the proposed project, including, for example, the following: (1) “specific location, including parcel numbers, a legal description, and site address, if applicable” (subd. (a)(1)); (2) “existing uses on the project site and identification of major physical alterations to the property on which the project is to be located” (subd. (a)(2)); (3) “[a] site plan showing the location on the property, elevations showing design, color, and material, and the massing height, and approximate square footage, of each building that is to be occupied” (subd. (a)(3)); and (4) “[t]he proposed land uses by number of units and square feet of residential and nonresidential development using the categories in the applicable zoning ordinance” (subd. (a)(4)).
The preliminary application is deemed submitted on the date it was received, presuming all the information under subdivision (a) has been included and the permit processing fee has been paid. (§ 65941.1(a).) Thereafter, an applicant has 180 days from the preliminary application to submit a formal application. (§ 65941.1(d)(1).) The vested right associated with perfecting the preliminary application is voided if an applicant “revises the project such that the number of residential units or square footage of construction changes by 20 percent or more.” (§ 65941.1(c).) By perfecting the preliminary application, the housing development project will continue to “be subject only to the ordinances, policies, and standards oe
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adopted and in effect when a preliminary application including all of the information required by subdivision (a) of Section 65941.1 was submitted.” (§ 65589.5(0)(1).) As noted by the parties, claims arising from the PSA are brought pursuant a petition for traditional mandamus under CCP § 1085. (Joint Br. at 7; Resp. Br. at 13.) CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” “There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where...the claim is that an agency has failed to act as required by law.” (Id. at 705.) “When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency’s action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law. And, where the case involves the interpretation of a statute or ordinance, our review of the trial court's decision is de novo.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “[a]n administrative agency’s interpretation does not bind judicial review but it is entitled - to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.)
An agency is presumed to have regularly performed its official duties. (Evid.
Code § 664.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)
C. The Preliminary Application Did Not Expire
It is undisputed that the PA Project set forth in the Preliminary Application is a “housing development project” under the HAA that was entitled to the Builder’s Remedy. The PA Project was vested in the City’s ordinances, policies, and standards in effect on the October 24, 2022 date the Preliminary Application was deemed filed, which includes the City’s non-compliance with Housing Element Law and resulting Builder’s Remedy. (§ 65589.5(0)(1).) It is also undisputed that Applicant’s DPR Application was timely filed on April 14, 2023, as such filing occurred within 180 257 4 C7? wi wet
days of submission of the Preliminary Application, per the requirements of § 65941.1(d)(1).5
The project as described in the DPR Application remains vested in the rights obtained through the filing of the Preliminary Application, unless, as provided in § 65941.1(c), the project was revised “such that the number of residential units or square footage of construction changes by 20 percent or more.” In such case, “the housing development project shall not be deemed to have submitted a preliminary application” for which rights vested at the time of filing. (§ 65941.1(c).) Here, the PA Project was a residential-only project with 200 dwelling units, including 40 affordable units, within a 259,547 square foot building. (AR CITY 1121, 1126, 1132, 4707.) The project in the DPR Application contains 165 residential units, including 33 affordable units, and 73 hotel rooms within a 311,197 square foot building. (AR CITY 1154-1214, 4707.) There is no dispute that the square footage for the project in the DPR Application is approximately 19.9% larger than the PA Project and has 17.5% fewer residential units than the PA Project. (Compare Joint Opening Br. at 10 with Resp. Br. at 15.) Accordingly, because the project in the DPR Application revised neither the number of residential units nor square footage by 20% or more, the project in the DPR Application remained vested in the rights secured by the Preliminary Application.
Tacitly acknowledging that the DPR Application project is in accord with the explicit requirements of the statute, City invoked a standard not found in the statutory language to deem the Preliminary Application “expired” and “of no further force or effect”—namely, whether “the DPR project submittal is for a project substantially different from the PA project.” (AR CITY 6958.) City’s “substantially different” rationale finds no support in the plain language of the statute, as violations of the 180-day time limit or the 20% limit on changes to residential units or square footage are the only stated provisions that deprive an applicant of its vested rights in the Preliminary Application. (See § 65941.1(c) & (d)(1).) Indeed, to the extent one were to read a “substantially different” provision into § 65941.1, the statute itself answers what differences are so substantial as to render a DPR project no longer the same as the PA project for purposes of vested rights, i.e., a 20% or greater change in residential units or square footage. While it may be understandable that a change from a residential-only project to a mixed-use project containing a hotel and restaurant may be substantially different in the eyes of the some (including City), the HAA does not see it that way. The HAA and its Builder’s Remedy applies to any “housing development project,” which includes any mixed-use
development with at least two-thirds of its square footage designated for residential 5 Citation to § 65941.1 herein is to the 2024 version in effect at the time, which is attached as Exhibit 2 to Respondent’s Request for Judicial Notice. Section 65941.1 was amended as of January 1, 2025. The language of the relevant provisions did not change, but the subsections were renumbered. (Compare § 65941.1(d)(1) (2024) with § 65941.1(e){1) (2025).)
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use. (§ 65589.5(h).) Here, the DPR Application project designates approximately 77% of its area for residential use and thus qualifies as an HAA housing development project. As an HAA housing development project, the project described in the DPR Application remains qualified for the Builder’s Remedy so long as its residential unit count and square footage do not change by 20% or more from the housing development project in the Preliminary Application.
This straightforward interpretation is consistent with the stated purpose of the Housing Crisis Act when it amended the PSA to add the preliminary application process, which was to prevent local governments from “chang[ing] the rules once the housing application is submitted.” (RJN Ex. I at 5.) Allowing the City to disregard a preliminary application that has vested based on its view of whether there has been a “substantial” change in the project exposes Applicant to the subjective whims and caprice of the City. By contrast, the explicit provisions of the HAA and PSA provide clear rules: the rights of a Preliminary Application project remain vested so long as:
(1) the DPR Application is submitted within 180 days; (2) the project in the DPR Application does not have a 20% or greater change in the number of residential units or square footage; and (8) the project in the DPR Application remains within the definition of a “housing development project.”
Furthermore, the conclusion that vested rights in a Preliminary Application project “remain[] vested unless the number of residential units or square footage of construction proposed in the full application changes from the preliminary application by 20 percent or more” was also reached by the HCD in its Notice of Violation to the City concerning this matter. (RJN Ex. F at 4.) While the HCD’s determinations are not binding on this Court, its views are presumed to be valid, and “courts generally will not depart from the HCD’s determination unless ‘it is clearly erroneous or unauthorized.” (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 243, quoting Hoffmaster v. City of San Diego (1997) 55 Cal.App.4th 1098, 1118 fn.
13.) Given the straightforward and plain meaning of § 65941.1’s language, this Court sees no reason to part ways from HCD’s similar reading of what changes to a project will affect the vested rights in a Preliminary Application.
Notwithstanding the foregoing, City advances several arguments as to why petitioners misread § 65941.1(c)’s limit on the ways that a project can lose its vested status following submittal of a preliminary application. Each is unpersuasive.®
6 The Court also finds City’s rhetorical use of the “bait and switch” analogy inapt. There was no baiting here, because Applicant could have obtained vested rights in any appropriate HAA housing development project put forth in its Preliminary Application. Applicant had no reason or need to pretend to build a residential-only project to obtain approval for the mixed-used project into which its Preliminary Application project ultimately evolved. “Bait and switch” also connotes an inducement by Applicant upon which City relied to its detriment, but City was not misled into acting or doing anything in response to the Preliminary Application. 11 Are
First, City contends petitioners’ reading renders superfluous the provisions of § 65941.1(a) that require an applicant to provide 17 different categories of materials and information, reasoning that, if an applicant can change everything other than square footage and residential unit numbers by 20% or more, there would be no reason to require any of the § 65941.1(a) information in the first place. The import of City’s argument, however, is that none of the information required by § 65941.1(a) in the preliminary application can change (other than up to 20% of square footage or residential units) without abrogating the project’s vested rights. The City’s argument makes little sense, as altering a project’s size or residential units by up to 20% will likely, if not necessarily, cause changes to other categories of information required by subsection (a), including the site plan with elevations showing design, massing, and height (subd. (a)(3)), the number of parking spaces (subd. (a)(5)), or the number of dedicated affordable units (subd. (a)(10)).
City’s second argument is that petitioners’ read of § 65941.1 prioritizes certain aspects of § 65941.1(a) without any evidence of legislative intent to do so. City posits that, under petitioners’ reading, so long as a project stays within the confines of the 20% limit for units and square footage, any other changes can be made irrespective of what was stated in the preliminary application, including the location of the project. With respect to evidence of legislative intent, City ignores the maxim that “[t]he statute’s words generally provide the most reliable indication of legislative intent.” (MCI Communications Services, Inc. .v California Dept. of Tax & Fee Admin. (2018) 28 Cal.Ap.5th 635, 643.) Here, the clear and unambiguous language of § 65941.1(c) evidences the Legislature’s view that only a 20% or greater change to unit count or square footage sufficiently changes the nature and character of a project, as well as the Legislature’s recognition that there should be some flexibility for changes in a project that may arise during the 180 days between the preliminary and final application due to design, construction, financial, or other evolving considerations that require alterations to the project. As for the argument that petitioners’ interpretation would allow for the location of the project. to change, that is simply a preposterous application of the statute that falsely equates changes to a project with a fundamental aspect of the project that is different in kind. (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1122 [The court will apply common sense to the language at hand and interpret the statute to make it workable and reasonable”].)
Finally, City argues that the legislative history, subsequent legislation, and other statutes confirm that § 65941.1 was not meant to permit switches from a residential project to a mixed-use project containing a hotel component. With respect to legislative history, City points out that, when § 65941.1 was amended to add “all of’ to subsection (a) to “[c]larify that all the elements in the initial application must be included in the initial application in order for the rules to lock,” the Legislature also added “all of’ to subsection (c). (Resp. Br. at 18, citing RJN Ex. 3 at p. 36.) “All of’ in subsection (c) is merely a reference to the circumstance under which an applicant shall be deemed to have submitted a preliminary application, t.e., “[a]fter 12 oe!
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submittal of all of the information required by subdivision(a).” (§ 65941.1(c), emphasis added.) It enacts no substantive change to the language that follows it, i.e., that “the housing development project shall not be deemed to have submitted a preliminary application” if the project is revised to include a a 20% or greater change to the residential unit count or square footage. (§ 65941.1(c).) As for subsequent legislation, City argues that, when the Legislature passed AB 1820 in 2024 to amend § 65941.1 concerning a preliminary fee and exaction estimate, the Legislature did not add language “to provide that a preliminary application confers vested right to proceed with projects that do not match what was described in the preliminary application, or to establish a hierarchy of importance among the 17 items requires to perfect a preliminary application.” (Resp. Br. at 19.) True. But irrelevant. Not adding such language simply means the Legislature did not intend to alter § 65941.1(c)’s plain meaning that only a 20% or more change to unit count or square footage constitutes a different project for vesting purposes.
Lastly, City’s reference to § 65863.2(e)(6)’s definition of “project” for purposes of parking requirements under § 65863.2(a), which excludes hotels, merely demonstrates that the Legislature knows how to differentiate hotels from other uses when it means to do so. The Legislature made no such distinction that applies here.
Treating hotels differently in some other provision of the Government Code does not mean, as argued by City, that hotels are so fundamentally different from other uses that any hotel use must be viewed as substantially different in all other contexts.
For all of the foregoing reasons, the Court finds that the Preliminary Application did not expire. By concluding Applicant’s DPR Application was incomplete because the Preliminary Application had expired and its vested rights in a Builder’s Remedy were “of no further force or effect,” the City disapproved the project in violation of the HAA and PSA.
D. City’s Other PSA Violations When Denying Applicant’s Appeal Applicant additionally contends that City improperly disapproved its DPR Application project by denying its appeal in violation of the PSA. The Court agrees.
1. The Appeal was Not Untimely
The City rejected the appeal in Applicant’s November 13, 2023 submission as untimely on the ground that it came more than 14 days after the October 13, 2023 issuance of the Second Incomplete Letter. (AR CITY 6953.) According to City, Applicant did not submit the appeal petition in a timely manner, as required by the City’s Municipal Code, specifically, BHMC § 1-4-102. (AR CITY 6953.) BHMC § 1-4-102 states in relevant part: “Any appeal petition shall be filed with the city clerk within fourteen (14) calendar days after the date of the decision.” (RJN Ex. J.) BHMC § 1-4-102’s timing requirements, however, did not apply to Applicant’s appeal per the explicit terms of the City’s Municipal Code.
13 BHMC § 1-4-101 immediately precedes BHMC § 1-4-102. It states in pertinent part: “Where a right of appeal to council exists under this code, ... an appeal may be taken to the council, in accordance with the procedures set forth in this article.” (RJN Ex. J [BHMC § 1-4-101(A)].) That section further states, however, that “[n]o right of appeal to the council from any administrative decision made by an official of the city .. . shall exist when such decision is ministerial and thus does not involve the exercise of administrative discretion or personal judgment.” (RJN Ex. J [BHMC § 1-4-101(B)].) Here, the decision at issue was ministerial. The PSA establishes the process by which a public agency must determine whether a formal application is complete. (§ 65943.) That determination is based on a specified list of information and material required by the local agency, and in review of an application, the local agency’s determination is restricted to “those items actually required on the . . . submittal requirement checklist.” (§ 65943(a).) “[T]he public agency is limited to determining whether the application as supplemented or amended includes the information required by the list and a thorough description of the specific information needed to complete the application required by subdivision (a).” (§ 65943(b).) The process of comparing an application and submissions to a list of required information and materials to determine what is present or missing is ministerial, as it does not involve the exercise of administrative discretion or personal judgment. (RJN Ex. J [BHMC § 1-4-101(B)]; see also Kavanaugh v. W. Sonoma County Union High Sch.
Dist. (2003) 29 Cal. 4th 911, 916, as modified (Apr. 16, 2003) [“A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion ‘concerning such act’s propriety or impropriety, when a given state of facts exists.”]) Because an incompleteness determination is ministerial, the City’s Municipal Code provides “[n]o right of appeal to the council” for that administrative decision. (RJN Ex. J [BHMC § 1-4-101(B)].) As such, the 14-day deadline under BHMC § 1-4-102 was a procedure that did not apply to Applicant’s appeal, because such a procedure applies only “[w]here a right of appeal to the council exists” under the Municipal Code. (RJN Ex. J [BHMC § 1-4-101(A)].) Accordingly, when the City _ imposed an inapplicable 14-day deadline to deny Applicant’s appeal as untimely, the City failed to act as required by law in accordance with its Municipal Code.
Further, because the Municipal Code provides “no right to appeal” a ministerial incompleteness decision, the City also failed to act in accordance with the PSA, which requires that, for decisions as to completeness under § 65943, “the public agency shall provide a process for the applicant to appeal that decision to the governing body of the agency.” (§ 65943(c).) To the extent the June 27, 2024 hearing before the City Council might have otherwise satisfied the City’s obligation to provide an appeal under § 65943, it ultimately failed to do so because the City rejected the appeal as time-barred based on a deadline from a Municipal Code 14 provision <hat was inapplicable per the terms of the Municipal Code itself. That was a failure to “provide a process for the applicant to appeal” as required by the PSA. (§ 65943(c).) It is also worth noting that § 65943 imposes no deadline to appeal.
City’s arbitrary application of a 14-day deadline from an inapplicable provision of its Municipal Code would thus appear also to run contrary to § 65943’s lack of a specified time by which to appeal.’
Accordingly, because City improperly applied the 14-day appeal deadline of BHMC § 1-4-102 to Applicant’s appeal of the Second Incompleteness Letter and did not have a proper process to appeal in place, the City violated the PSA.
2. The Appeal was Not Moot
City also denied Applicant’s appeal on the ground that it was moot. When Applicant twice submitted additional material for its DPR Application after having appealed the Second Incompleteness Letter on October 13, 2023, those submissions resulted in incompleteness determinations on February 9, 2024 and June 7, 2024. (See AR CITY 6953.) In City’s view, because Applicant did not appeal them, those determinations that the DPR Application was incomplete became final, thereby mooting the appeal. (AR CITY 6953.) As discussed above, the City did not have in ~ place a required appeal process for its incompleteness determinations, and no applicable deadline by which to appeal existed. Thus, the February 9, 2024 and June 7, 2024 incompleteness determinations never became “final.” Morzover, City’s argument ignores the fact that during and after the appeal of the Second Incompleteness Letter, the City and Applicant continued to exchange incompleteness letters and responses thereto (Compare AR CITY 4351-4426, 4618- 4694, 7416-7511, 7574-7586 with AR CITY 4496-4594, 7283-7407, 7512- 7562.) The issue of whether the DPR Application was incomplete was far from moot when the City denied the Appeal as moot. Per § 65943(c), the City was required to provide a process for Applicant to appeal the City’s incompleteness determination. City cannot avoid that obligation by erroneously declaring Applicant’s appeal moot, particularly where the purported mootness arises from City’s own failure to have in place a on statutorily required process to appeal.
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a 7 Petitioners appear to suggest that no deadline could be imposed by City. (Joint Br. at 16 [“The fact that no appeal deadline is included in § 659438(c) is there fore evidence that none was intended and that none applies”].) Section 65943(c) states that the public agency “shall provide a process” for the appeal. The Court need not reach the issue of whether that process may permissibly include a particular deadline, as it is clear the 14-day deadline City used to deny Applicant’s appeal was wholly inapplicable and not part of the City’s appeal process required by § 65943(e). 15 teal”
E. City’s Incompleteness Determination
Notwithstanding the foregoing, City contends that the Court should deny the instant writ petitions “for the simple reason that multiple DPR Application submittal requirements had not been provided to the City both at the time the Applicant filed its Appeal as well as at the time of the hearing itself.” (Resp. Br. at 13.) This contention seems both irrelevant and wrong.
Whether the DPR Application was incomplete at the time of the appeal of the Second Incompleteness Letter seems irrelevant, because the City continued to engage Applicant by receiving supplemental materials and information and responding with incompleteness letters. (Compare AR CITY 4351-4426, 4618-4694, 7416-7511, 7574-7586 with AR CITY 4496-4594, 7283-7407, 7512- 7562.) Moreover, by the sixth incompleteness letter, issued after the City Council issued its Resolution denying the Applicant’s Appeal, the City acknowledged that all the required items from the DPR Application Checklist had been provided. (AR CITY 7574-75.) While it is not clear why the parties would proceed with the appeal of a determination on an issue (i.e., incompleteness) the parties were still engaged in bringing to a final decision, it is hard for this Court to see how an essentially non-final, interim determination on the matter should be a basis for denying the writ of mandamus petitions before this Court.
In any event, even if the determination that the DPR Application was incomplete at the time of the appeal were relevant, it appears that determination was wrong. According to City, at the time of the appeal hearing, four items were still missing: (1) “The plans did not include required information regarding rooftop mechanical equipment and screening (Correction 7c)”; (2) “The plans did not show the code-required setbacks (Corrections 9a, b, c, d, e)”; (3) “The plans did not include required front yard paving information (Correction 11)”; and (4) “The plans did not include sufficient information related to loading and potential issues with T-alley intersection (Correction 14b).” (Resp. Br. at 14; AR CITY 6955.) As for rooftop and mechanical equipment and screening, the revised plans submitted on August 9, 2023 show them. (AR CITY 468.) Likewise, the proposed setbacks are shown in the revised plans submitted on August 9, 2023. (AR CITY 459-67, 469-76.) With respect to required front yard paving information, the plans submitted on August 9, 2023 show the location of proposed paving/hardscape treatment as required by the Checklist but do not include area calculations of the paving/hardscape within the required front yard area” because that is a requirement for a multi-family residential project and not a mixed-use project. (AR CITY 324, 481.) Lastly, the plans submitted on August 9, 2023 show the on-site loading zone, and, per the Checklist, no loading study was required because the project did not seek a modification from loading requirements pursuant to BHMC § 10-38-2741. (AR CITY 324, 326, 459.) 16 Accordingly, the Court is unconvinced by City’s claim that the petitions should be denied in the ground that items were purportedly missing from the DPR Application at the time of Applicant’s appeal.
F. Whether City Acted in Bad Faith
In an action to enforce the HAA, if the Court finds that the “the local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria...without making the findings required by [the HAA],” the Court may “issue an order or judgment directing the local agency to approve the housing development project...if the court finds that the local agency acted in bad faith when it disapproved...the housing development...in violation of? the HAA. (§ 65589.5(k)(1)(A)(i)(ID), (ii).) When bad faith is found, the Court “shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section.” (§ 65589.5(k)(1)(A)(ii).) “(Bad faith includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.” (Former § 65589.5(1), effective January 1, 2024 to December 31, 2024.)8
Petitioners argue that City acted in bad faith in denying the appeal on the grounds of untimeliness and for later amending its municipal code to limit appeals relating to similar DPR projects.? (Join Br. at 17-20.) Specifically, petitioners argue that the application of BHMC § 1-4-102 was in bad faith because there was no basis to do so when the completeness determinations were ministerial decisions. (Joint Br. at 18.) Petitioners also contend that it was in bad faith to allow the appeal process to drag on for seven months and for an extensive hearing to be held without rejecting the request for appeal when it was first submitted. (Joint Br. at 18-19.) Furthermore, petitioners submit that the subsequent amendment to BHMC § 1-4-101 demonstrates that City knew the prior version did not apply to its appeal. (Joint Br. at 20.) Under the circumstances, the Court finds that the City did not act in bad faith when it denied Applicant’s appeal on timeliness grounds or amended its Municipal
Code in an attempt to comply with § 65943(c)’s mandate to provide a process to 8 A new version of section 69985.5 became effective on January 1, 2025. Because the Project was disapproved in 2024, the Court applies the version of section 69985.5 in effect at the time of denial. That version is attached as Exhibit A to Respondent’s Request for Judicial Notice.
9 On September 17, 2024, the City adopted Ordinance No. 24-O-2901, amending the City’s Municipal Code to add procedures for the “Appeal of Administrative Decisions on Housing Development Projects.” (RJN Exs. D & E.) 17 aa FOVshT ey AE ue c i. Poa ia AG 34% 7
appeal incompleteness determinations. Even though no compliant process to appeal under § 65943(c) was in place at the time of Applicant’s appeal, the Court does not find it was frivolous or entirely without merit for the City to turn to the then-existing means to appeal under the then-current versions of BHMC §§ 1-4-101 and 1-4-102 for Applicant’s situation. And while the Court has found that the 14-day time limit did not apply, it is not entirely frivolous to suggest that some time limit for bringing an appeal should apply. Lastly, the Court finds it inequitable to use the City’s attempt through new legislation to provide an appeal in accordance with § 65943(c) against the City as a measure of bad faith.
Accordingly, the Court declines to find that City acted in bad faith.
V.
CONCLUSION
For the foregoing reasons, the petitions are GRANTED, save for the finding of bad faith. The Court finds that Respondent City of Beverly Hills’ Resolution No. 24-R-13515 shall be vacated and set aside and that respondent shall be ordered to process 9300 Wilshire Inc.’s Development Plan Review Application for the project located at 125-129 South Linden Drive in accordance with this decision and applicable provisions of the Housing Accountability Act and Permit Streamlining Act.
Pursuant to Local Rule 3.231(n), petitioners Californians for Homeownership, Inc, and 9300 Wilshire, LLC shall prepare, serve, and ultimately file proposed judgments and writs of mandate.
With respect to the third cause of action for declaratory relief raised in the petition filed in 24STCP02964, petitioner 9300 Wilshire, LLC shall decide whether to dismiss that cause of action or pursue it. If the former, 9300 Wilshire shall submit a Request for Dismissal on the applicable Judicial Council form along with its proposed judgment. If the latter, 9300 Wilshire shall file a Status Report with the Court so indicating, and the Court will refer this matter to Department 1 for reassignment to a direct calendar court to preside over the remaining cause of action.
The Court will refrain from entering any judgment in 24STCP02964 while that cause of action is pending.
Date: August 12, 2025 CLaxtA. Kr
HON. CURTIS A. KIN
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