425 Market Street
Suite 2900
San Francisco, CA 94105
415.227.0900 Phone
415.227.0770 Fax
BUCHALTER 110833491v3
110833491v3
415.227.3508 Direct
[email protected] June 15, 2026
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 (“CDP”) 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”).
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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 65941.1.1 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
1 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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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, 2026.2
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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(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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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. 5th 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. 4th 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 ERROR! REFERENCE SOURCE NOT FOUND.
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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.
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 ERROR! REFERENCE SOURCE NOT FOUND.
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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