ATT B - Appeal to City Council 206-08-12-CC — Pacifica City Council, September 28, 2026

RECEIVED
City of Pacifica AUG 1 2 2026

APPEAL FORM CITY CLERK
INSTRUCTIONS: TO FILE AN APPEAL, COMPLETE THIS FORM AND FILE IT WITH THE CITY CLERK'S OFFICE, CITY HALL, 170 SANTA MARIA AVE, PACIFICA, CA 94044, NO LATER THAN TEN (10) CALENDAR DAYS OF THE DECISION (POSTMARK DATE WILL NOT BE ACCEPTED), TOGETHER WITH ANY REQUIRED APPEAL FEE. ATTACH ADDITIONAL SHEETS IF NECESSARY. YOU WILL BE NOTIFIED IN WRITING OF THE HEARING DATE FOR YOUR APPEAL.

FEES: $624.00 FOR APPEALS TO CITY COUNCIL (FY 2026-27); $475 TREE PERMIT APPEAL FEE (FY 2026-27) ($624.00 FEE REQUIRED PER APPEAL OF PLANNING COMMISSION DECISION(S), COMMUNITY DEV. DIRECTOR / ZONING ADMIN

ADMINISTRATIVE APPROVALS, APPEALS OF SHORT-TERM RENTAL NOTICE OF VIOLATION / SUSPENSION / REVOCATION) PROPOSED PROJECT: APPELLANT:

Title/Name: Coastal Crest Residences Name: Preserve at Pacifica, LLC 501 San Mario Way/Pacifica Quarry, 018-150-120,
Address: 110. 150 #Address: 231 Fulton St W, Grand Rapids, MI 49303 Applicant/Developer: Preserve at Pacifica, LLC Phone (Day): 616-530-5500 DECISION OF (check one): DECISION DATE: 8/3/26 Email Address: [email protected] • Planning Commission Parks, Beaches & Recreation Division • City Staff (Title):

DECISION AT ISSUE: APPROVAL or I DENIAL of:

Use Permit Site Development Permit Tentative Subdivision Map Short-Term Rental EIR or Negative Declaration Coastal Development Permit Administrative Decision Variance Final inconsistency
Parking Exception Home Occupation Permit Tree Permit • Other determination DESCRIBE DECISION BEING APPEALED:

Planning Commission denial of appeal of Community Development Department decision concerning final inconsistency determination denying Builder's Remedy project without a vote of the people. See attached letter.

DESCRIBE GROUNDS FOR APPEAL:

See attached letter.

APPELLANT'S RELATIONSHIP TO THE ITEM BEING APPEALED? (check one):
• Project Applicant • Neighbor • Concerned Citizen * Other Buchalter LLP, Attorney for Appellant DATE: B. 1|. 2026
$ 124.00 Check #
Received By: Sarah Coffey, Cry Clerk _Fee Paid: • Cash Of check • Online 801787 Receipt Date: 8/12/2026 _ Receipt #
City Clerk's Office Use Only Rev. 07/01/2026
Buchalter
425 Market Street
Suite 2900
415 P0g105
RECEIVED 415.227.0770 Fax
(415) 227-3508 Direct
AUG 1 2 2026 [email protected]
August 11, 2026

CITY CLERK
City Clerk's Office
City Hall
170 Santa Maria Avenue
Pacifica, CA 94044
Re: File No. 2025-036 - Appeal of Planning Commission Denial of Appeal of Community Development Department Determination of Inconsistencies Under Housing Accountability Act and Next Steps for Coastal Development Permit (CDP-477-25, Specific Plan (SP-192-25), Tree Permit (TP-14-25), and Sign Permit (S-138-25) for Development of 1,225 rental dwelling units in 20 apartment buildings and 26 townhomes (17 apartment buildings on the East Parcel (APN 018-150-150), and 3 apartment buildings and the townhome units on the West Parcel (018-150-110, 018-150- 120)), and 1,259 parking spaces on approximately

86.39 acre Vacant Parcels (APN 018-150-110, - 120, - 150) known as Coastal Crest Residences
Dear Clerk:

Attached in connection with the filing of the appeal, are the following:

Appeal Form;
Letter to Mayor Christine Boles and Members of the City Council; and Check in the amount of $624.

Please contact me with any questions or comments you may have. Thank you.

Very truly yours,

SEE BACK FOR DETAILS THIS CHECK CONTAINS MULTIPLE SECURITY FEATURES - Anal ame
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THE
VOID AFTER 90 DAYS PAY TO CITY OF PACIFICA

CBT - GENERAL LLP
$624.00 Six Hundred Twenty-Four and 00/100 Dollars) ONLY ** Amount
DATE 08/05/2026 213) 891-0700
LOS ANGELES, CA 90017-2457
SUITE 1500
35-1058/1131 Los Angeles, CA 90071 1000 WILSHIRE BOULEVARD 550 S. Hope Street, Suite 100 A PROFESSIONAL GORPORATION CHECK NO. 801787 CALIFORNIA BANK AND TRUST BUCHALTER
WARNING - THIS CHECK IS PROTECTED BY SPECIAL SECURITY GUARD PROGRAM™ FEATURES 624.00 P6094-000002 166025 FILING 80526 08/05/2026
File No. Date
Amount Account No./ Voucher No. Description Invoice No. Invoice 801787 27953-1
$624.00 Check No.: 08/05/2026 CITY OF PACIFICA Payee No.:

Buchalter
425 Market Street
Suite 2900
San Francisco, CA 94105
415.227.0900 Phone
415.227.0770 Fax
(415) 227-3508 Direct
[email protected]
August 12, 2026

VIA E-MAIL
The Honorable Christine Boles
Mayor of the City of Pacifica
and Members of the City Council
City of Pacifica
170 Santa Maria Avenue
Pacifica, CA 94044
Re: File No. 2025-036 - Appeal of Planning Commission Denial of Appeal of Community Development Department Determination of Inconsistencies Under Housing Accountability Act and Next Steps for Coastal Development Permit (CDP-477-25, Specific Plan (SP-192-25), Tree Permit (TP-14-25), and Sign Permit (S-138-25) for Development of 1,225 Rental Dwelling Units in 20 Apartment Buildings and 26 Townhomes (17 Apartment Buildings on the East Parcel (APN 018- 150-150), and 3 Apartment Buildings and the Townhome Units on the West Parcel (018-150-110, 018-150- 120)), and 1,259 Parking Spaces on Approximately 86.39 Acre Vacant Parcels (APN 018-150- 110, -120, - 150) Known as Coastal Crest Residences
Dear Mayor Boles and Members of the City Council:

Buchalter, LLP ("Buchalter") represents Preserve @ Pacifica, LLC ("Preserve") as land use counsel with respect to its plans to develop a 100% affordable 1,225 unit multi-family mixed-income residential development project ("Project") on the 86.39-acre site of the former Rockaway Quarry located on Cabrillo Highway (APNs 018-150-120 and 018-150-150) (the "Property") in the City of Pacifica ("City" or "Pacifica") pursuant to the Builder's Remedy provisions of the Housing Accountability Act ("HAA") and Senate Bill (SB) 330, known as the Housing Crisis Act of 2019, as amended (Government Code §8 65589.5, 65905.5, 65941.1, and 66300 et seq.) ("SB 330"). The Project also includes the reclamation of the Rockaway Quarry pursuant to the approved 1996 Rockaway Quarry Reclamation Plan. The Project requires two coastal development permits ("DP"), one to implement the approved 1996 Reclamation Plan vested under the Surface Mining and Reclamation Act ("SMARA") and the other to implement Arizona | California | Colorado | Georgia | Illinois | Oregon | Tennessee | Texas | Utah | Washington 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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the residential project subject to the Builder's Remedy provisions of the HAA. Preserve submitted a formal development project application for the development permit approvals necessary to develop and implement the Project ("Formal Development Project").! In accordance with Government Code Section 65589.5 subdivision (j)(2)(A), the Community Development Department issued the City's Initial Inconsistency Letter (as defined in the June 5, 2026 Letter) to Preserve on April 28, 2026. On June 6, 2026, Preserve received the Final Inconsistency Letter from Samantha Updegrave, Community Development Director (dated June 5, 2026) advising Preserve that the City has completed its final inconsistency review and issued its determinations regarding applicable project requirements, and identifying project inconsistencies pursuant to the Housing Accountability Act ("HAA"), Government Code section 65589.5 subdivision (j)(2)(A) ("Final Inconsistency Letter").2 The Final Inconsistency Letter supplements and incorporates by reference and reaffirms the City's Initial Inconsistency Letter.

Coastal Crest Appeals the Planning Commission's Denial of Preserve's Appeal of the Community Development Department's Final Inconsistency Determinations Requiring the Voter Initiative and Applying the 2025 LCLUP to the Project.

Please refer to the attached letter dated June 15, 2026 appealing the Final Inconsistency Letter attached hereto and incorporated by reference as, "Exhibit 1" (the "June 15" Letter") for background regarding the Coastal Crest Project and why we filed our Appeal. In summary, because they apply only to non-Builder's Remedy projects arising under subdivision (i), inconsistency determinations, like the Final Inconsistency Letter itself, constitute a determination that the City will not process the Project as a Builder's Remedy project, as Builder's Remedy projects are entitled to proceed even if they are inconsistent with a city general plan and zoning, and therefore are not subject to subdivision (j) consistency determinations. As we stated in the June 15th Letter, the Final Inconsistency Letter constitutes a final administrative decision (subject to this Appeal that the Project is subject to the following two determinations that conflict with the HAA and prevent Preserve from proceeding with the Project:
(1) Decision Regarding Voter Initiative. The Initial Inconsistencies Letter as incorporated by reference into the Final Inconsistency Letter claims that Ordinance No. 391-C.S., adopted by the voters in 1983, requires a vote of the people to develop housing on the Project site (Voter Initiative"). The City has determined that development of housing on the Project will be subject to the Voter Initiative in violation of the HAA and SB 330.

The Formal Development Project application and the background materials Preserve submitted in response to the City's prior application incompleteness determinations regarding the history of the Project are incorporated by reference.

We refer to the Final Inconsistency Letter by the date that it was received by Preserve which is June 6, 2026. 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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(2) Decision Regarding Local Coastal Land Use Plan. The City claims that the Project is subject to the 2025 Local Coastal Land Use Plan ("LCLUP"), not the Coastal Commission certified 1980 LCLUP which was in effect when the City deemed the Preliminary Application complete on May 7, 2025.

For the reasons set forth in our June 15' Letter, as supplemented by the rationale set forth in this letter, Preserve hereby appeals the Planning Commission's denial of Preserve's appeal and the approval of the Community Development Department's Final Inconsistency Letter under Section 9-4.3804 of the Pacifica Municipal Code regarding the Community Development Director's decision that: (1) the Project is subject to Ordinance No. 391-C.S. and requires a Voter Initiative to develop housing on the Property, and (2) the Formal Development Project Application is subject to the City's 2025 LCLUP (the "Appeal"). We appeal the Planning Commission's decision upholding the Community Development Director's determination that a Voter Initiative is required to develop housing on the Property because the City's determination conflicts with the Builder's Remedy provisions of the HAA, and local Ordinance No. 391-C.S. is preempted by SB 330, and conflicts with State Planning and Zoning Laws, and applicable case law holding that housing projects are not subject to initiative and referenda. We appeal the City's determination that the Project is subject to the 2025 LCLUP, and not the 1980 LCLUP, because the City deemed the Preliminary Application complete prior to the Coastal Commission's certification of the 2025 LCLUP and the 1980 LCLUP applies for the reasons set forth in the June 15th Letter as further explained below.

Our submittals in response to the June 6 Final Inconsistency Letter and our Appeal do not constitute an admission that the Community Development Department's request was lawful under either the HAA or the Permit Streamlining Act (Gov. Code, § 65920, et seq.) ("PSA"), as amended by SB330.

Preserve Appeals the City's Determination that the Project is Subject to Ordinance No. 391-C.S.

Preserve appeals the City's determination that residential development on the Property will be subject to a voter initiative requirement under Ordinance No. 391-C.S. As we stated in our appeal to the Planning Commission (see Exhibit 1), under the Builder's Remedy provisions of the HAA, a Builder's Remedy project "shall not require a general plan amendment, specific plan amendment, rezoning, or other legislative approval." (see e.g., Government Code § 65589.5(f)(6)(D)(i). That is the case with the Coastal Crest Project, which includes a 100% affordable housing development as we reminded the Planning Commission before they denied our Appeal at their hearing on August 3, 2026.
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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As we explained in the attached appeal to the Planning Commission, the HAA, Coastal Act and SMARA are all state laws that govern matters of Statewide concern. The court held in Building Industry Association v. City of Oceanside (1994) 27 Cal. App. 4* 749, 762-763, 767- 771 that a local initiative was preempted by State Planning and Zoning Law. With the enactment of the Housing Crisis Act in 2019, California courts have held that housing projects are not subject to initiative and referenda as state law preempts local ordinances where the power of initiative or referenda violates the HAA. Furthermore, the courts have ruled that the power of initiative is trumped by state housing laws (see., e.g., AIDS Healthcare Foundation v. Bonta (2024) 101 Cal.App. 5"* 73). Similarly, in the unpublished decision of the Contra Costa County Superior Court, in Oak Hill Park Company v. the City of Antioch, Case No. CV MSN 21-0048, the court invalidated an initiative restricting residential development as in conflict with SB 330 even though the requirement to place the initiative on the ballot was in effect prior to the enactment of SB 330.

Thus, once again, we appeal the City's determination that the Project is subject to the Voter Initiative because it violates the State Constitution and the HAA. Residential development is allowed under the Builder's Remedy provisions of the HAA and under State law the Coastal Crest Project would not be subject to the initiative requirement under Ordinance No. 391-C.S.

Notwithstanding staff's comments at the August 3rd Planning Commission hearing that the Courts recognize the power of the electorate, the Courts recognize that the power of the electorate is subject to state law.

Preserve Appeals the City's Determination that the Project is Subject to the 2025 LCLUP.

As the Legislature and the Coastal Commission have repeatedly confirmed, the Coastal Act and state housing laws must be harmonized to give effect to both. As for the HAA, it makes clear that "[it] 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." (Gov. Code, § 65589.5, subd. (a)(2)(L) emphasis added.) Because the Project designates at least two-thirds of the square footage for residential use, the Project meets the definition of a "housing development project" under the HAA. (Gov. Code § 65589.5. subd (h)(2).) Moreover, because the Project dedicates at least 20% of its units to low-income households (100% to be precise), the Project also meets the definition of "housing for very low, low-, or moderate-income households" under the HAA. (Gov. Code § 65589.5, subd. (h)(3).) Pursuant to the HAA, submittal of a preliminary application establishes "vesting rights," such that the Project may only be subjected to the "ordinances, policies and standards" in effect at the time the Preliminary Application was submitted. (Gov. Code § 65589.5, subd. (o).) When Preserve submitted its Preliminary Application for the Project which was deemed submitted and accepted on May 7, 2025, the City had not adopted a housing element that was certified by the 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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California Department of Housing and Community Development ("HCD") as substantially compliant with the State Housing Element Law (Gov. Code § 65580, et seq.). Preserve submitted its Preliminary Application pursuant to the Builder's Remedy provisions of the HAA.

As you know, the Builder's Remedy provisions prevent the City from denying affordable housing projects even if the project is inconsistent with both the jurisdiction's zoning ordinance and general plan land use designation when a jurisdiction is out of compliance with the Housing Element Law and no other specifically enumerated finding to support a disapproval can be made. (Gov. Code § 65589.5, subd. (d).)
Importantly, when Preserve's Preliminary Application was deemed accepted on May 7, 2025, the City Council still had not adopted its 2025 LCLUP. The City Council and Coastal Commission did not adopt the Local Coastal Plan Update until May 8, 2025, a day after the City deemed Preserve's Builder's Remedy Project Preliminary Application accepted and vested within the meaning of the HAA Builder's Remedy provisions. Preserve submitted a written statement as part of its Project Second Formal Application that the Builder's Remedy Project is consistent with the Section 3 policies of the Local Coastal Plan as the City's November 5th Letter required. Preserve based its determination of consistency with the LCP and policies in effect when the 1996 Reclamation Plan was approved and in effect before the City and Coastal Commission approved the LCLUP because those were the policies in effect under SB 330 as to the Builder's Remedy Project application.

The City has invoked the recently issued court of appeal decision in New Commune DTLA v. City of Redondo Beach (2026) 2026 WL 2198336 ("'New Commune") and Kalnel Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927 ("Kalnel") for the proposition that Preserve cannot invoke SB330 to vest the 1980 LCLUP. Neither New Commune nor Kalnel addressed the scope of vesting afforded by SB330, however, and neither is competent authority for an argument that Preserve cannot law fully invoke its right to vest the earlier LCLUP.

New Commune stands for the principle that a developer cannot use the Builder's Remedy in a manner that forecloses the review authority of the Coastal Commission over proposed uses in the Coastal Zone, whether that review authority arises through certification of an LCP or the review and ratification of an amendment to a certified LCP. In New Commune, the developer sought to invoke the Builder's Remedy for approval of uncertified residential uses without Coastal Commission review through an amendment to the LCP. Unlike New Commune, however, Preserve invokes its vested right to proceed with the certified 1980 LCLUP that was in place when Preserve's SB330 Preliminary Application was deemed complete. That 1980 LCLUP envisioned and designated residential land uses for the Rockaway Quarry. Moreover, the Rockaway Quarry carried an "ADC" (Area of Deferred Certification) status for the Property.

ADC status means the Coastal Commission retains coastal development permit authority for proposes uses in those areas. New Commune therefore cannot serve as relevant authority for an argument that Preserve is foreclosed from vesting the 1980 LCLUP, as the Coastal Commission would reserve review authority over the Project.
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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Kalnel was decided in 2016, some three years before the Legislature enacted the vesting provisions of SB330. It therefore cannot speak to whether an SB330 Preliminary Application is sufficient to vest an earlier local coastal program. Instead, it stands for the general principle that the State Density Bonus Law (Gov. Code, § 65915) ("SDBL") is subordinate to the Coastal Act.

This is not an SDBL project. Moreover, Kalnel was superseded by a statutory amendment to the SDBL requiring implementation "in a manner that harmonizes" the two statutes. Finally, Kalnel did not address the relationship between the HAA and the Coastal Act, because the HAA issues were not properly before the court of appeal. (Kalnel, supra, 3 Cal.App.5th at p. 943.) In short, the Project will be subject to the Coastal Act, to the extent required by law, just like the Project is subject to SMARA and State Housing Laws. That is why Preserve applied for two CDPs for its Project- one for the housing development under the Builder's Remedy provisions of the HAA and one for the 1996 Reclamation Plan. However, the determination of consistency with the City's policies for the Project must be made under the 1980 LCLUP in effect when the City deemed the Builder's Remedy Project Preliminary Application complete because that plan (just like the General Plan and zoning) were vested for purposes of the processing of the Builder's Remedy Project application. (Gov. Code, § 65589.5, subd. (o)(1); § 65941.1, subd. (d).) 3
The Planning Commission's Denial of Preserve's Appeal of the City's Determinations that the Project is Subject to a Vote and the 2025 LCLUP Constitute Project Denial.

The Planning Commission inquired at its August 3d hearing if there is still a path forward to process Preserve's Builder's Remedy Project even if Preserve's Appeal was denied. Staff responded that there is a "path forward," and stated that all Preserve has to do is to file an initiative seeking voter approval of the Builder's Remedy Project to comply with Ordinance No. 391-C.S. and comply with the 2025 LCLUP. Staff indicated that Preserve does not have to apply for rezoning or a general plan amendment but must submit the Formal Development Project to a vote contending that Ordinance No. 391-C.S. applies regardless of the Builder's Remedy provisions of the HAA.

Contrary to staff s response at the Planning Commission hearing, there is no path forward if the City Council denies our Appeal. Prior reclamation and development efforts on this Property for the past 40 years have proven that there is no reclamation and no 100% affordable housing project if the Council denies our Appeal. Voters have turned down residential development on the Quarry Site time and time again, including in 2016 when the proposed residential project also included visitor serving commercial uses.

Moreover, the Coastal Commission certified 1980 LCLUP which was later amended in 1984 and 1988 contemplated residential uses on the quarry site but did not require approval by initiative. 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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Moreover, telling Preserve the City deemed the application complete without requiring a rezoning or General Plan amendment application (i.e., legislative actions) --- which it was required to do under the Builder's Remedy provisions of the HAA--- while at the same time, stating the development project (an adjudicatory action) cannot proceed without a vote is tantamount to a denial of the housing project. As the Attorney General stated in his June 5, 2025 Legal Alert entitled, "Consistent interpretation of the Builder's Remedy in Cal. Housing Defense Fund, et al. v. City of La Cañada Flintridge (Super. Ct. L.A. County, Mar. 4, 2024, No. 23STCP02614) and Shelby Family Partnership, L.P. v. City of Goleta, et al. (Super. Ct. S.B.

County, Feb. 26, 2025, No. 24CV000548)" (OAG 2025-03) State Housing Laws prohibit a city from taking an action that forecloses the processing of a valid Builder's Remedy project. AB 1893 further defined "disapproval" under the HAA, indicating that the failure to take final administrative action on a proposed housing development project application may constitute a disapproval under the HAA. (Gov. Code § 65589.5, subd. (h)(6).

That is the case here. The Planning Commission's denial has once again left our client stuck between a rock and a hard place, so to speak - break the law by subjecting the Project to a vote or break the law by not. If the Council upholds the Planning Commission's decision and denies our Appeal, the City will have put the nail in the coffin and there will be no residential development on the Quarry Site.

The City Council's Denial of Our Appeal Constitutes "Disapproval the Housing Development Project" within the meaning of 65589.5(F)(6) because the City's Determination Renders the Project Infeasible.

Under Government Code section 65589.5(h)(6), (11), the Builder's Remedy provisions of the HAA, as amended by AB 1893, a local agency shall not apply an individual or combination of objective quantifiable, written development standards, conditions and policies to the project that attempt to "deny, reduce the density for, or render infeasible housing development projects." (Gov. Code, § 65589.5, subd. (a)(2)(K).) Under section 65589.5(h)(1) - the definition of "feasible" means "capable of being accomplished in a successful manner within a reasonable period of time taking into economic, environmental, social and technological factors." The Builder's Remedy provisions prohibit local agencies from taking actions that would render the housing project infeasible and prevent the housing project from being constructed as proposed by the applicant. Here, Preserve is unable to proceed with reclamation to return the property to a safe condition under the 1996 Reclamation Plan with Preserve's Builder's Remedy Project, even if the application has been deemed complete. The reclamation effort approved by the City Council in 1996 allowed residential development based on the future land uses set forth in the 1983 General Plan and the 1980 LCLUP. The 1983 General Plan and the 1980 LCLUP did not limit the amount of residential development that would be allowed on the Quarry Site. 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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The SMGB has told Preserve it must reclaim the property under SMARA per the 1996 Reclamation Plan. The 1996 reclamation plan is vested under SMARA as explained in our prior letters explaining why the Formal Development Project application was deemed complete. The 1996 Reclamation Plan was found consistent with the 1980 General Plan and zoning as amended before 1996 based on the 1983 General Plan and the 1980 LCLUP. The 1980 LCLUP (as amended) in effect in 1996 designated the Property for visitor serving commercial uses, residential uses and conservation with a marina. The LCLUP did not require that residential uses be subject to a vote. Neither the 1980 General Plan nor the 1980 Coastal Commission certified LCLUP land plans specified how many dwelling units were allowed on the Property.

Thus, if the City Council denies our Appeal and upholds the Planning Commission's approval of the City's Final Inconsistency Determination then the City has prevented reclamation from proceeding under the 1996 Reclamation Plan and denied the Builder's Remedy project in violation of the Housing Crisis Act because the Project is not allowed to proceed with required reclamation and 1,225 100% affordable mixed income apartment units unless the voters approve the project. Preserve proposed to proceed with reclamation independent of residential uses when the voters rejected an initiative to build housing in 2016. Then the Council rejected reclamation under a revised reclamation plan in 2024, in part, based on the requirement that Preserve propose a specific development project in conjunction with reclamation.4 Preserve proposed the Coastal Crest Project to comply with the City Council's prior direction rejecting a reclamation only project. If the City Council now rejects Preserve's Appeal after they proposed a project with a specific end use and finds that the Coastal Crest Project must obtain voter approval first before development may proceed, then reclamation and residential development will not be feasible based on social considerations as Pacifica residents have objected to housing on the site for 40 years. Just like the voters did in 2016, the City would once again be preventing Preserve from constructing a housing project, only this time it is a 100% affordable housing project.

The City Council's Denial of the Appeal is a "Disapproval of the Housing Development Project" under 65589.5 because the City's Final Inconsistency Determination is a Course of Conduct Undertaken for an Improper Purpose.

The City has made contradictory determinations regarding the Project that have resulted in intractable confusion and uncertainty. On the one hand, the City has determined that the Please refer to the September 23, 2024 City Council meeting (recording at 4:46:00 through 4:53:45) for Chair Hauser's comments that the Planning Commission heard a lot of concerns from the public at its August 2024 hearing and the Commission "could not make findings that this was consistent with the General Plan. They did concur that a specific plan process, which was suggested by Mr. Heule in May, would alleviate that; if a specific plan with community input was completed, they would be more comfortable saying that the reclamation was consistent because the very nature of the findings says you have to understand the end use." Chair Hauser stated "that they specifically asked Mr. Heule if they could consider doing a specific plan prior or in parallel to reviewing the reclamation. They understood from him that was not feasible but it was requested by the Planning Commissioners."
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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Project application is subject to the Builder's Remedy and therefore is complete, despite the lack of a general plan or zoning code amendment. In the City's own words:

The City is not requiring the Appellant to pursue a rezoning or general plan amendment. Government Code section
65589.5(f)(6)(D) provides that the City cannot require an applicant for a Builder's Remedy project to apply for a general plan amendment or rezoning and the City has not done so here. The City deemed the application complete for processing without a general plan amendment or rezoning application. Thus, no violation of the HAA exists due to this claim.
(Planning Commission Staff Report (Aug. 3, 2026).) This determination expressly recognizes the Builder's Remedy right, since a non-Builder's Remedy housing proposal would have triggered the need for legislative amendments to add residential uses to the City's zoning and land use maps. Yet, on the other hand, the City has initiated a subdivision (j) consistency determination, declaring that the Project is inconsistent with the City's land use plans and zoning. It is not clear how the Project can proceed in the face of incoherent administrative stances taken by the City.

Forcing the Project to proceed with the voter's initiative is antithetical to case authority declaring the HAA (and, by extension, the Builder's Remedy) to supersede local initiative requirements. On that front, the record is clear that the Pacifica voters have already vetoed residential development at the Property. Even aside from the preemptive effect of the HAA, approval of a Builder's Remedy project is strictly a quasi-adjudicative action, subject to Code of Civil Procedure section 1094.5. (Gov. Code, § 65589.5, subd. (k).) Forcing a vote for a quasi- abdicative approval is misplaced, as initiatives only apply in the legislative realm. (See Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 51.) Such a requirement would result in prejudicial delay because the Builder's Remedy Project is not subject to an initiative.

Additionally, this administrative action results in a needless increase in the cost of the housing development by imposing additional (and insurmountable) hurdles and an election constituting a denial of a housing project within the meaning of Government Code section 65589.5. Telling the applicant now through the inconsistency determination you must subject the project to a vote as a policy under Ord. 391-C.S. before Preserve can develop housing renders the project economically infeasible by imposing all of these extra costs now only to have the project denied and/or best case imposes all of these extra costs now that a housing project should not have to incur to move forward under State law.

The City's Determination that the Project Cannot Proceed without a Vote Constitutes a Denial
A City Council vote to deny the Appeal and uphold the Planning Commission's approval of the City's Final Inconsistency Determination pushes the Project into an immovable object, because it forecloses reclamation of the Property under the 1996 Reclamation Plan and 112027792v2
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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repudiates the Builder's Remedy project in violation of the HAA and the Housing Crisis Act. As noted abe vo, Preserve prop isi t pro bed ly to using ation independeavof residenial rejest reclamation under a revised reclamation plan in 2024, in part, based on the requirement that Preserve propose a specific development project in conjunction with reclamation. A denial of he Appeal raises an insurmountable obstacle to the construction of the Coastal Crest Project':
1,225 100% affordable apartment units.

In fact, a denial would mean no project of any size, design or scope could be approved due to the inability to reclaim the site as required by SMARA for any economically viable use. In short, denial of the Appeal will result in the conversion of private property into the equivalent of a habitat preserve, even though prior permits and agreements in effect on the Property since the 1990s contemplated that the landowner would be able to proceed with future development. But the "State, by ipse dixit, may not transform private property into public property without compensation...." (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1031.) The City's regulatory regime on the Property has the potential to give rise to a taking of private property without compensation, in violation of the takings clause of the United States and California state constitutions.

For the reasons set forth above, we tile this Appeal, with reservation of our right to amend and/or supplement this Appeal as necessary and a plenary reservation of all our rights under the state housing laws and the laws of the Constitution of the United States.

We respectfully request that the City Council grant our Appeal and reject the Community Development Director's Final Inconsistency Determination.

Sincerely,

BUCHALTER
A Professional Corporation
Alicia Guerra
AG:nj
Exhibits
CC: Michelle Kenyon
Karen Murphy
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The Honorable Christine Boles and Members of the City Council August 12, 2026

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Sean Charpentier
Samantha Updegrave
Paul Heule
Joel Kamstra
Michael Shonafelt
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City of Pacifica

APPEAL FORM
INSTRUCTIONS: TO FILE AN APPEAL, COMPLETE THIS FORM AND FILE IT WITH THE CITY CLERK'S OFFICE, CITY HALL, 170 SANTA MARIA AVE, PACIFICA, CA 94044, NO LATER THAN TEN (10) CALENDAR DAYS OF THE DECISION (POSTMARK DATE WILL NOT BE ACCEPTED), TOGETHER WITH ANY REQUIRED APPEAL FEE. ATTACH ADDITIONAL SHEETS IF NECESSARY. YOU WILL BE NOTIFIED IN WRITING OF THE HEARING DATE FOR YOUR APPEAL.

FEES: $606.00 FOR APPEALS TO CITY COUNCIL (FY 2025-26); $461 TREE PERMIT APPEAL FEE (FY 2025-26) ($606.00 FEE REQUIRED PER APPEAL OF PLANNING COMMISSION DECISION(S), COMMUNITY DEV. DIRECTOR / ZONING ADMIN.

ADMINISTRATIVE APPROVALS, APPEALS OF SHORT-TERM RENTAL NOTICE OF VIOLATION / SUSPENSION / REVOCATION) PROPOSED PROJECT: APPELLANT:

Title/Name: Coastal Crest Residences Name: Preserve at Pacifica, LLC Address: 501 San Mario Way/Pacifica Quarry, 018-150-120, 110, 150 Address: 231 Fulton St W, Grand Rapids, MI 49503 Applicant/Developer: Preserve at Pacifica, LLC Phone (Day): 616-530-5500 DECISION OF (check one): DECISION DATE: 6/6/26* Email Address: [email protected] • Planning Commission *Dat of lest Beaches Recreen Dison 2 City Staff(Title): Parks, Beaches & Recreation Division DECISION AT ISSUE: APPROVAL or • DENIAL of:
• Use Permit Site Development Permit • Tentative Subdivision Map • Short-Term Rental EIR or Negative Declaration Coastal Development Permit I Administrative Decision Variance L Parking Exception Home Occupation Permit Tree Permit • Other Final Inconsistency Letter DESCRIBE DECISION BEING APPEALED:

See attached letter.

DESCRIBE GROUNDS FOR APPEAL:

See attached letter.

APPELLANT'S RELATIONSHIP TO THE ITEM BEING APPEALED? (check one):
• Project Applicant • Neighbor • Concerned Citizen • Other Buchalter, LLP, Attorney for Appellant X DATE: 60.15 • 2626
APPELLANT'S SIGNATURE:

Received By:_ _Fee Paid: • Cash • Check • Online
Receipt Date: _ Receipt #
City Clerk's Office Use Only Rev. 07/01/2025
Buchalter
425 Market Street
415.227.0770 Fax
415.227.3508 Direct
June 15, 2026 [email protected]

VIA E-MAIL
Chair Hauser and Members of the City of
Pacifica Planning Commission
1800 Francisco Blvd
Pacifica, CA 94044
Re: File No. 2025-036 - Appeal of Determination of Inconsistencies Under Housing Accountability Act and Next Steps for Coastal Development Permit (CDP-477-25, Specific Plan (SP-192-25), Tree Permit (TP-14-25), and Sign Permit (S-138-25) for Development of 1,225 rental dwelling units in 20 apartment buildings and 26 townhomes (17 apartment buildings on the East Parcel (APN 018-150-150), and 3 apartment buildings and the townhome units on the West Parcel (018-150-110, 018-150- 120)), and 1,259 parking spaces on approximately

86.39 acre Vacant Parcels (APN 018-150-110, - 120, - 150) known as Coastal Crest Residences
Dear Chair Hauser and Members of the Planning Commission:

Buchalter, LLP ("Buchalter") represents Preserve @ Pacifica, LLC ("Preserve") as land use counsel with respect to its plans to develop a 100% affordable 1,225 unit multi-family mixed-income residential development project ("Project") on the 86.39-acre site of the former Rockaway Quarry located on Cabrillo Highway (APNs 018-150-120 and 018-150-150) (the "Property") in the City of Pacifica ("City" or "Pacifica") pursuant to the Builder's Remedy provisions of the Housing Accountability Act ("HAA") and Senate Bill (SB) 330, known as the Housing Crisis Act of 2019, as amended (Government Code §§ 65589.5, 65905.5, 65941.1, and 66300 et seq.) ("SB 330). The Project also includes the reclamation of the Rockaway Quarry pursuant to the approved 1996 Rockaway Quarry Reclamation Plan. The Project requires two coastal development permits ("DP") to implement the approved 1996 Reclamation Plan and the residential project subject to the Builder's Remedy provisions of the HAA. Preserve submitted a formal development project application for the development permit approvals necessary to develop and implement the Project ("Formal Development Project"). buchalter.com
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Buchalter
City of Pacifica Planning Commission
June 15, 2026

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Coastal Crest Project Background
In 1996, the Pacifica City Council approved the Rockaway Quarry Reclamation Plan ("1996 Reclamation Plan"') to reclaim the decommissioned quarry on the Property. For 30 years, Preserve or its predecessors attempted to process a revised reclamation plan for the Rockaway Quarry either with residential development project applications, or without. After a failed initiative effort to obtain residential project approval with a revised reclamation plan in 2016, the Preserve pivoted and proceeded only with a revised reclamation project in 2022. However, the City Council rejected that proposal at the end of 2024, in part, because the Council indicated that reclamation should only proceed in conjunction with a development proposal. Preserve appealed the City Council's denial of the revised reclamation plan to the State Division of Mines and Geology ("SDMG"). In early 2025, the SDMG rejected the appeal and directed Preserve to proceed with reclamation pursuant to the approved and vested 1996 Reclamation Plan.

At SMGB's direction, Preserve decided to proceed with reclamation under the 1996 Reclamation Plan in the spring of 2025. This time, given the City Council's prior deliberations about the future of the Property, Preserve coupled its application for a CDP for reclamation under the 1996 Reclamation Plan (the last remaining discretionary action) with a redevelopment development project. On April 8, 2025, Preserve submitted its Preliminary Application under SB 330 and the HAA. When Preserve submitted its Preliminary Application, the Coastal Commission had not approved and certified the City's 2025 LCLUP and the State Housing and Community Development Department ("HCD") had not yet certified the City's Housing Element. The Planning Department deemed the Project's Preliminary Application complete on May 7, 2025 pursuant to Government Code Section 65941.1.' As the Office of Attorney General noted in its June 5, 2025 Legal Alert, "Consistent interpretation of the Builder's Remedy in Cal.

Housing Defense Fund, et al. v. City of La Cañada Flintridge (Super. Ct. L.A. County, Mar. 4, 2024, No. 23STCP02614) and Shelby Family Partnership, L.P. v. City of Goleta, et al. (Super.

Ct. S.B. County, Feb. 26, 2025, No. 24CV000548)" ("OAG Legal Alert"), "The Builder's Remedy only applies when a local government either (1) fails to timely adopt a substantially compliant housing element, or (2) falls out of substantial compliance. (Gov. Code, § 65589.5, subds. (d)(5)-(6).) A Builder's Remedy application is one submitted during the time frame when a local government's housing element is not in substantial compliance with Housing Element Law. (Ibid.)" That was the case when the City deemed Preserve's Preliminary Application complete.

The Community Development Department confirmed that the Project qualified for and would " We believe that the preliminary application is complete on submittal as long as all the statutory information is in place and that these factual assertions do not constitute any concession that the City has a statutory right to deem a preliminary application incomplete.

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City of Pacifica Planning Commission
June 15, 2026

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proceed as a Builder's Remedy Project. The Builder's Remedy arises under section 65589.5 subdivision (d) of the HAA. That subsection of the HAA mandates approval of affordable housing projects, even where a project is inconsistent with local zoning and general plan standards, if a local government failed to timely adopt a housing element in substantial compliance with the Housing Element Law. For that reason, Builder's Remedy projects are legally distinct from the usual category of residential development projects that proceed under section 65589.5 subdivision (j), and which must be consistent with the local government's general plan and zoning. Following three submittals of its Formal Development Project Application, the City deemed the third submittal of the Formal Development Project Application complete on April 7, 2026.?
In accordance with Government Code Section 65589.5 subdivision (j)(2)(A), the Community Development Department issued the City's Initial Inconsistencies Letter (as defined in the June 5, 2026 Letter) to Preserve on April 28, 2026. On June 6, 2026, Preserve received the Final Inconsistency Letter from Samantha Updegrave, Community Development Director (dated June 5, 2026) advising Preserve that the City has completed its final inconsistency review and issued its determinations regarding applicable project requirements, and identifying project inconsistencies pursuant to the Housing Accountability Act ("HAA"), Government Code Section 65589.5 subdivision (j)(2)(A) (*Final Inconsistency Letter").3 The Final Inconsistency Letter supplements and incorporates by reference and reaffirms the City's Initial Inconsistencies Letter.

Because they apply only to non-Builder's Remedy projects arising under subdivision (j), inconsistency determinations, like the Final Inconsistencies Letter itself, constitute a determination that the City will not process the Project as a Builder's Remedy project, as Builder's Remedy projects are entitled to proceed even if inconsistent with a city general plan and zoning. The Final Inconsistency Letter constitutes a final administrative decision that the Project is subject to the following two determinations that conflict with the HAA and prevent Preserve from proceeding with the Project:
(1) Decision Regarding Voter Initiative. The Initial Inconsistencies Letter as incorporated by reference into the Final Inconsistency Letter states that Ordinance No. 391-C.S., adopted by the voters in 1983, requires a vote of the people to develop housing on the Project site ("Voter Initiative"). The City has determined that development of housing on the Project will be subject to the Voter Initiative in violation of the HAA and SB 330.
2 Preserve's March 25, 2026 third Formal Development Project Application Submittal and the City's June 5, 2026 Final Inconsistency Letter (received on June 6, 2026) state the Project formal application history which is herein incorporated by reference.
3 We refer to the Final Inconsistency Letter by the date that it was received by Preserve which is June 6, 2026.

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City of Pacifica Planning Commission
June 15, 2026

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(2) Decision Regarding Local Coastal Land Use Plan. The Project is subject to the 2025 Local Coastal Land Use Plan ("LCLUP"), not the 1980 LCLUP which was in effect when the City deemed the Preliminary Application complete on May 7, 2025.

On behalf of Preserve, we hereby appeal the Final Inconsistency Letter determinations under Section 9-4.3804 of the Pacifica Municipal Code regarding the Community Development Director's decision that: (1) the Project is subject to Ordinance No. 391-C.S. and requires a voter initiative to develop housing on the Property, and (2) the Formal Development Project Application is subject to the City's 2025 LCLUP (the "Appeal"). We appeal the Community Development Director's determination that a Voter Initiative is required to develop housing on the Property because the City's determination conflicts with the Builder's Remedy provisions of the HAA, and local Ordinance No. 391-C.S. is preempted by SB 330, and conflicts with State Planning and Zoning Laws, and applicable case law holding that housing projects are not subject to initiative and referenda. We appeal the City's determination that the Project is subject to the 2025 LCLUP and not the 1980 LCLUP, because the City deemed the Preliminary Application complete prior to the certification of the 2025 LCLUP.

We understand that the Community Development Department has indicated that the other inconsistency determinations in its Final Inconsistency Letter are not final decisions and are not subject to administrative appeal process under Section 9-4.3804 at this time. While we do not appeal the other non-appealable inconsistency items that do not constitute a final determination as noted in the City's Final Inconsistency Letter, in the event that a non-appealable inconsistency item identified in the Final Inconsistency Letter is related to or depends upon this Appeal, we reserve the right to amend the Formal Development Project Application at a later date to reflect the Planning Commission's determination concerning our Appeal. Our submittals in response to the June 6 Final Inconsistency Letter do not constitute an admission that the Community Development Department's request was lawful under either the HAA or the Permit Streamlining Act (Gov. Code, § 65920, et seq.) ("PSA"), as amended by SB330.

We acknowledge the Community Development Director's confirmation that the City will continue concurrently processing the Project's Formal Development Project Application, and initiating environmental review under the California Environmental Quality Act ("CEQA") during our Appeal. Regardless of the timing of the Commission's action on the Appeal, for the avoidance of doubt, we request that the Community Development Department not stay the effectiveness of the Formal Development Project Application while the Commission reviews the Appeal and continue the processing of the Formal Development Project Application.

Preserve Appeals the City's Determination that the Project is Subject to Ordinance No. 391-C.S.

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City of Pacifica Planning Commission
June 15, 2026

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Preserve appeals the City's determination that residential development on the Property will be subject to a voter initiative requirement under Ordinance No. 391-C.S. As a threshold matter, it is simply a category mistake, and a direct violation of the Permit Streamlining Act, for a city to subject an adjudicative permit application to an initiative as there is no application for a rezoning. The Permit Streamlining Act does not apply to applications or requests for a legislative approval such as a rezoning. See Land Waste Mgmt. v. Contra Costa Cnty. Bd. of Supervisors (1990) 222 Cal. App. 3d 950, 956.

As the appeals court held in the 1984 decision in Yost v. Thomas (36 Cal. 3d 561), use permits and variances are not subject to the power of initiative and referendum. Only legislative actions such as general plan amendments and rezoning are subject to initiative, development permits are not (see e.g., Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 24 Cal. App. Sth 700.)
The HAA prohibits local governments from requiring the applicant to proceed with a rezoning or general plan amendment. (Gov. Code, § 65589.5, subd. (f)(6)(D).) Such a position goes to the heart of the statutory right that arises from the Builder's Remedy. Any action to repudiate such a right must comply with Government Code section 65589.5, subd. (d)(1), which requires a finding of a specific, adverse impact to the public health and safety, supported by a preponderance of the evidence and that there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible." (Gov. Code, § 65589.5, subd. (d)(1).) A "specific, adverse impact" means "a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete." (Ibid.) Notably, inconsistency with the zoning ordinance or general plan land use designation "shall not constitute a specific, adverse impact upon the public health or safety." (Id., § 65589.5, subd. (d)(2).) The Legislature's requirement to adopt "written findings" supported by a "preponderance of the evidence in the record" anticipates the processing of any Builders Remedy application to a point of being reviewed -- and subject to adopted findings -- by the appropriate decision- maker, in this case, the Planning Commission and/or the City Council, not by staff at the planning department counter.

With the enactment of the Housing Crisis Act in 2019, California courts have held that housing projects are not subject to initiative and referenda as state law preempts local ordinances where the power of initiative or referenda violates the HAA. The court held in Building Industry Association v. City of Oceanside (1994) 27 Cal. App. 4'h 749, 762-763, 767-771 that a local initiative was preempted by State Planning and Zoning Law. Similarly, in the unpublished decision of the Contra Costa County Superior Court, in Oak Hill Park Company v. the City of Antioch, Case No. CV MSN 21-0048, the court invalidated an initiative restricting residential BUCHALTER 110833491v33
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City of Pacifica Planning Commission
June 15, 2026

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development as in conflict with SB 330 even though the requirement to place the initiative on the ballot was in effect prior to the enactment of SB 330.

To require that the Project adjudicatory actions be subject to a vote is a backdoor approach to requiring rezoning by initiative when rezoning is otherwise prohibited under the Builder's Remedy provisions of the HAA. Thus, we appeal the City's determination that the Project is subject to the Voter Initiative as in violation of the State Constitution and the HAA.

Residential development is allowed under the Builder's Remedy provisions of the HAA and under State law would not be subject to the power of initiative under Ordinance No. 391-3.804.

Preserve Appeals the City's Determination that the Project is Subject to the 2025 LCLUP.

As the Legislature and the Coastal Commission have repeatedly confirmed, the Coastal Act and state housing laws must be harmonized to give effect to both. As for the HAA, it makes clear that "[it] 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." (Gov. Code, § 65589.5, subd. (a)(2)(L) emphasis added.) Because the Project designates at least two-thirds of the square footage for residential use, the Project meets the definition of a "housing development project" under the HAA. (Gov. Code § 65589.5. subd. (h)(2).) Moreover, because the Project dedicates at least 20% of its units to low-income households (100% to be precise), the Project also meets the definition of "housing for very low, low-, or moderate-income households" under the HAA. (Gov. Code § 65589.5, subd. (h)(3).) Pursuant to the HAA, submittal of a preliminary application establishes "vesting rights," such that the Project may only be subjected to the "ordinances, policies and standards" in effect at the time the Preliminary Application was submitted. (Gov. Code § 65589.5, subd. (o).) When Preserve submitted its Preliminary Application for the Project which was deemed submitted and accepted on May 7, 2025, the City had not adopted a housing element that was certified by the California Department of Housing and Community Development ("HCD") as substantially compliant with the State Housing Element Law (Gov. Code § 65580, et seq.). Preserve submitted its Preliminary Application pursuant to the Builder's Remedy provisions of the HAA.

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deemed Preserve's Builder's Remedy Project Preliminary Application accepted and vested within the meaning of the HAA Builder's Remedy provisions. Preserve submitted a written statement as part of its Project Second Formal Application that the Builder's Remedy Project is consistent with the Section 3 policies of the Local Coastal Plan as the City's November 5th Letter required. Preserve based its determination of consistency with the LCP and policies in effect when the 1996 Reclamation Plan was approved and in effect before the City and Coastal Commission approved the LCLUP because those were the policies in effect under SB 330 as to the Builder's Remedy Project application.

Of course, the Project will also be subject to the Coastal Act, to the extent required by law. That is why Preserve applied for two CDPs for its Project- one for the housing development on the Builder's Remedy provisions of the HAA and one for the 1996 Reclamation Plan.

However, the determination of consistency with the City's policies for the Project must be made under the LCP in effect when the City deemed the Builder's Remedy Project Preliminary Application complete because that plan (just like the General Plan and zoning) were vested for purposes of the processing of the Builder's Remedy Project application. (Gov. Code, § 65589.5, subd. (o)(1); § 65941.1, subd. (d).)
For the reasons set forth above, we file this Appeal, with reservation of our right to amend and/or supplement this Appeal as necessary and a plenary reservation of all our rights under the state housing laws and the laws of the Constitution of the United States. We appreciate the Planning Commission's consideration of this Appeal and look forward to the Community Development Department's processing of the Coastal Crest Formal Development Project Application.

Sincerely,

BUCHALTER
A Professional Corporation
Alicia Guerra
AG:nj
CC: Michelle Kenyon
Karen Murphy
Samantha Updegrave
Paul Heule
Matt Larson
Michael Shonafelt
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Pacifica City CouncilSeptember 28, 2026

Pacifica City Council
September 28, 2026