June 5, 2024
Special City Council
Meeting
Written Public Comments
HDFR
Jun 5, 2024
City of Orange
City Council
300 E. Chapman Ave
Orange, CA 92866
Re: Proposed Housing Development Project at 2200 N. Tustin Street By email: [email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; [email protected];[email protected] CC: [email protected]; [email protected]; [email protected]; [email protected];
[email protected]; [email protected]
Dear City of Orange City Council,
The California Housing Defense Fund ("CalHDF") submits this letter to remind the Council of its obligation to abide by all relevant state housing laws when evaluating the proposed 210-unit housing development project at 2200 North Tustin Street, including 42 affordable ADUS.
Specifically, CalHDF would like to remind the Council that the Housing Accountability Act (Gov. Code, § 65589.5; the "HAA") specifically and expressly prohibits requiring a rezoning and general plan amendment for builder's remedy projects. (Id. at subd. (d)(5).) Gov. Code, § 65589.5 (d)(5) prohibits a non-compliant local agency (such as the City of Orange) from denying a qualifying application to build a mixed-or low-income project on the basis of an inconsistency with the agency's zoning or general plan. Of course a local agency cannot require that these very same zoning or general plan documents be amended as a condition of approving such a project; that is legally and practically identical to a denial on the basis of an inconsistency with those documents.
Given that the City's Housing Element was not in compliance as of the date that the application was submitted, the City may not deny the application or require that the applicant submit a rezoning and/or general plan amendment application. 360 Grand Ave #323, Oakland 94610
www.calhdf.org
The recent court ruling in California Housing Defense Fund v. City of La Cañada Flintridge, L.A.S.C. Case No. 23STCP02614 (attached to this letter) confirms this. In that case, the City of La Cañada Flintridge argued that it was entitled to deem a developer's application "incomplete" because there were discretionary processes (such as a rezoning application) that the City wished to force the application to complete prior to approving or disapproving the underlying entitlements application. The court ruled in favor of the Petitioners, holding that the City's "incomplete" determination constituted a denial of the project, and that the City could not rule the project incomplete because the applicant had not submitted an application to rezone the parcel. Precisely the same reasoning applies here.
The City's position is also at odds with the decision in Ruegg & Ellsworth v. City of Berkeley, Alameda County Superior Court Case No. RG18930003, which was later affirmed by the Court of Appeal. (See Ruegg & Ellsworth v. City of Berkeley (2023) 89 Cal.App.5th 258. There, the City of Berkeley argued that it had not "denied" an application within the meaning of the HAA because an alternative discretionary pathway remained available for the applicant. The trial court rejected Berkeley's argument, holding that the City denied the project when it attempted to coerce the applicant into filing a different, discretionary application.
If the Council denies this appeal and requires the applicant to submit an application for a rezoning and general plan amendment, then it risks litigation. Furthermore, the HAA allows nonprofit organizations, such as CalHDF, to bring suit to enforce the act. If the City loses such a lawsuit, then it is liable for attorney's fees and cost of suit. Of course, the applicant is also entitled to judicial remedies.
Also of note, the public notice for tonight's hearing was carried out in violation of the City's Municipal Code, § 17.08.050 (F)(1), which requires public notice 10 days prior to a City Council hearing on an appeal of a Planning Commission decision. Given that the appeal was received on June 3, 2024, holding a public hearing on June 5, 2024, only two days later, is a violation of Orange Municipal Code. We urge the Council to allow appropriate due process and public participation as required by its own municipal code.
As you are well aware, California remains in the throes of a statewide crisis-level housing shortage. New housing such as this is a public benefit; it will bring increased tax revenue, new customers to local businesses, it will reduce displacement of existing residents into homelessness, and it will provide badly needed affordable housing. While no one project will solve the statewide housing crisis, the proposed development is a step in the right direction.
CalHDF urges the Council to approve it, consistent with its obligations under state law.
CalHDF is a 501(c)3 non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households.
You may learn more about CalHDF at www.calhdf.org.
20f3
Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
3 of 3
MATTHEW GELFAND, COUNSEL
CALIFORNIANS FOR [email protected]
HOMEOWNERSHIP TEL: (213) 739-8206
June 5, 2024
VIA EMAIL
City Council
City of Orange
300 E. Chapman Ave.
Orange, CA 92866
Email: [email protected]; [email protected] RE: June 5, 2024 City Council Meeting, Agenda Item No. 2.1 To the City Council:
Californians for Homeownership is a 501(c)(3) organization devoted to using legal tools to address California's housing crisis. We are writing regarding the proposed "Village at Orange" development, Tentative Tract No. 0053-23, Major Site Plan Review No. 1140-23, and Design Review No. 5123-23. The City's approval of this project is governed by the Housing Accountability Act, Government Code Section 65589.5. For the purposes of Government Code Section 65589.5(k)(2), this letter constitutes our written comments on the project.
This project is subject to the so-called "builder's remedy" under the Housing one of the exceptions in subdivisions (d)(1) through (d)(5) of Section 65589.5. And because the City does not have a general plan housing element that substantially complies with state law, it is further prohibited from using subdivision (d)(1) or (d)(5) to reject the project.
And to be clear, if the City Council affirms the incompleteness determination regarding the project, that will constitute a denial of the project for purposes of the HAA. The City's action 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 pplication deemed complete. The builder's remedy requires the City to disregard its zoning an‹ general plan standards, not to change them. It is not surprising that the City would rather the applicant follow a much more discretionary pathway to permit this project, but it cannot legally require the applicant to do so. If anything, the City's attempt to disguise its denial as an 525 S. Virgil Avenue
Los Angeles, CA 90020
June 5, 2024
incompleteness determination only provides further evidence that would support a bad faith finding under the HAA. And we note that a Los Angeles Superior Court judge recently overturned a decision by another City that had similarly attempted to misconstrue a denial as an incompleteness determination. California Housing Defense Fund v. City of La Cañada Flintridge, Los Angeles Superior Court Case No. 23STCP02614.
When a locality rejects a housing development project without complying with the Act, the action may be challenged in court 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 few years 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). A non-profit organization can sue without the involvement or approval of the project applicant, to protect the public's interest in the development of new housing. A locality that is sued to enforce Section 65589.5 must prepare the administrative record itself, at its own expense, within 30 days after service of the petition. Gov. Code § 65589.5(m). And if an enforcement lawsuit brought by a non-profit organization is successful, the locality must pay the organization's attorneys' fees. Gov.
Code § 65589.5(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).
In recent years, there have been a number of successful lawsuits to enforce the Act:
• In Eden Housing, Inc. v. Town of Los Gatos, Santa Clara County Superior Court Case No. 16CV300733, the court determined that Los Gatos had improperly denied a subdivision application based on subjective factors. The court found that the factors cited by the town, such as the quality of the site design, the unit mix, and the anticipated cost of the units, were not objective because they did not refer to specific, mandatory criteria to which the applicant could conform. • San Francisco Bay Area Renters Federation v. Berkeley City Council, Alameda County Superior Court Case No. RG16834448, was the final in a series of cases relating to Berkeley's denial of an application to build three single family homes and its pretextual denial of a demolition permit to enable the project. The Court ordered the city to approve the project and to pay $44,000 in attorneys' fees. • In 40 Main Street Offices v. City of Los Altos, Santa Clara County Superior Court Consolidated Case Nos. 19CV349845 & 19CV350422, the court determined that the Los Altos violated the Housing Accountability Act, among other state housing laws, by failing to identify objective land use critera to justity denying a mixed ise residential and commercial project. The City was ultimately forced to pay approximately $1 million in delay compensation and attorneys' fees in the case. • In Californians for Homeownership v. City of Huntington Beach, Orange County Superior Court Case No. 30-2019-01107760-CU-WM-CJC, a case brought by our organization, the court ruled that Huntington Beach violated the Housing Accountability Act when it rejected a 48-unit condominium project based on vague 525 S. Virgil Avenue
Los Angeles, CA 90020 CALIFORNIANS FOR HOMEOWNERSHIP
June 5, 2024
concerns about health and safety. Following the decision, the City agreed to pay $600,000 in attorneys' fees to our organization and two other plaintiffs.
Based on the above legal framework, we are not aware of any legal basis for the City to deny the application to develop this project. If the City nevertheless upholds the incompleteness determination, we reserve the right to initiate litigation against the City as a "housing organization" Sincerely,
Matthew Gelfand
525 S. Virgil Avenue
CALIFORNIANS FOR HOMEOWNERSHIP
Los Angeles, CA 90020
*Kennedy
COMMISSION
www.kengedycommission.org
5/14/2024
17701 Cowan Ave, Suite 200
Irvine, CA 92614
(949) 250-0909
Mayor Slater and City Councilmembers
ity of Orange
00 Chapman Av-
Orange, CA 92866
Re: Comments on the Village District at Orange's Appeal on its Letter of Incompletion Dear Honorable Mayor Slater and Members of the Orange City Council The Kennedy Commission (the Commission) is a broad coalition of residents and community organizations that advocates for the production of homes affordable for families earning less than $30,000 annually in Orange County. Formed in 2001, the Commission has been successful in partnering and working with jurisdictions in Orange County to create effective policies that have led to the production of new homes affordable to low income working families.
The Commission is writing to support the City of Orange's position to deny Appeal No. 0566-24 and affirming the decision of the Planning Commission with respect to the determination made by the Community Development Director under Section 17.08.030(E) of the Orange Municipal Code that the application filed by the Orange JCP Project Owner, LLC is incomplete.
I. The Housing Accountability Act
The Housing Accountability Act prohibits a local agency from disapproving or conditioning approval in a manner that renders infeasible, a housing development project for very, low-, or moderate-income households unless the local agency makes written findings as to one of certain set of conditions, as specified:
1) The Jurisdiction has adopted a housing element pursuant to this article that has been revised in accordance with Section 65588 and the jurisdiction has met or exceeded its share of the regional housing need allocation for the planning period for the income category proposed for the housing development project. If the housing development project includes a mix of income categories and the jurisdiction has not met or exceeded its share of the regional housing need for one or more of those categories, then this provision would not apply.
2) The housing development project would have a specific, adverse impact upon the public health or safety.
3) The denial of the housing development project or imposition of conditions is required in order to comply with specific state or federal law.
4) The housing project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land used for agriculture or resource preservation.
5) The housing project is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation as specified in any element of the general plan as it existed on the date the application was deemed complete. 1 *Kennedy
COMMISSION
www.kennedycommission.org
17701 Cowan Ave, Suite 200
Irvine, CA 92614
We support the city in its findings that the Applicant is simply required to apply and process a (949) 250-0909
General Plan change and Rezone Classification.
II. Affordable Housing StrategyProposed and Private Enforcement In addition, the Commission is making comments on the affordable housing component of this proposal and any other projects that may propose this strategy to meet the affordable housing requirements.
It is imperative that the affordable housing units required under state housing laws that provide incentives and concessions be available, open and marketed to the general public, occupied and deed-restricted to low and very low income households. The City, Owner, Developer and public organizations will have the obligation and ability to continue to monitor the availability and occupancy of affordable housing units produced during the 55 year compliance period. These functions will include:
(1) monitoring the city's, owner's and developers enforcement of affordability covenants; (2) request and monitor the marketing of units to be available to the community at large; (3) monitor actual occupancy of units to actual low income residents. (4) a monitoring plan to ensure compliance of occupancy by low and very low income households.
The monitoring will require active participation, transparency and collaboration by the city, owners and developer to facilitate access to AH monitoring implementation plans, leases and occupancy information, outreach plans on how affordable units will be advertised and marketed, and a database tracking all unit occupancy or vacancies.
In light of the City of Orange's consideration of The Village District's redevelopment plans and other proposals in the City of Orange. The City and the developer need to provide more information and documentation on the following when proposing affordable housing as part of laws that facilitate development and offer incentives and concession:
1) What is the status of the Village District sites for affordable housing? 2) How will a Density Bonus be implemented in these developments to ensure that affordable housing is developed?
3) How will the city and developer be complying with the low and very low requirements on each site in the Village Mall?
4) What are the tools and programs that will be used to monitor compliance to ensure marketing and availability of the affordable housing units to the general community and all residents in Orange?
5) What tools will be used by the city to monitor occupancy of affordable units to very low and low income residents?
2 *Kennedy
COMMISSION
6) What process will be set up by the city to ensure access to information and documents, towan Ave, Suite 200 demonstrate compliance by the city, developers and owners for units with affordability covenants and actual occupancy of lower income units to qualified residents? 7) How will the city monitor to ensure that units are actually occupied and not vacant? 8) How will the city work with interested stakeholders and community organizations (like the Kennedy Commission) on the monitoring and enforcement of the affordable covenants?
We look forward to your response and partnership to ensure that the City creates affordable housing opportunities for all in the City of Orange by implementing housing laws and providing development in exchange for deed restricted affordable housing .
Very truly yours,
Cesa
Cesar Covarrubias
Executive Director
co: Ms. Melinda Coy, California Housing and Community Development Department 3