ATTACHMENT G
Letter from Applicant
–
Response to Appeal
REDT-58150\3271903.1
1331 N. California Blvd.
Suite 600
Walnut Creek, CA 94596
T 925 935 9400
F 925 933 4126
www.msrlegal.com
Travis Brooks
[email protected]
Offices: Walnut Creek / San Francisco / Newport Beach / Reno December 17, 2025
Planning Services Department
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Re: Applicant Response To Neighbors’ Appeal Of City Approval Of Housing Development Project At 305 W. San Rafael Drive
Case No: DP 2025-0011
To Whom it May Concern:
This firm represents Redtail Multifamily Development, LLC in its housing development project application to construct 82 critically needed affordable units at 305 W. San Rafael Drive in the City (“Project”). When taking into account available benefits under the state’s Density Bonus Law (“DBL”, Gov. Code, § 65915) the Project is consistent with all of the City’s relevant objective development standards set out in its General Plan, zoning ordinance, subdivision ordinance, and design criteria. In addition to the protections of the DBL, the Project is also subject to the robust protections of the Housing Accountability Act (“HAA”, Gov. Code, § 65589.5 ). Accordingly, the City Council is required to deny the recent appeal of the Project’s approval filed by nearby residents and allow the Project to move forward.
I. Housing Accountability Act
As a brief reminder to the City, the Project is protected by the Housing Accountability Act (Gov. Code § 65589.5; “HAA”), a housing production statute that seeks “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects . . . .” (§ 65589.5(a)(2)(K)). Moreover, the HAA expresses the state’s policy that this statute “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(a)(2)(L)).
As relevant here, subdivision (j) of the HAA directs that a decision to disapprove or reduce the density of a project that complies with “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards” must be based on written findings supported by a preponderance of the evidence that City Planning Department
December 17, 2025
REDT-58150\3271903.1
(1) the project would have “a specific, adverse impact upon the public health or safety” and (2) that there is no feasible method to satisfactorily mitigate or avoid this adverse impact. (Gov't Code § 65589.5(j)(1)). The HAA defines a “specific, adverse impact” to mean “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.” (Gov't Code § 65589.5(j)(1)(A)).
The DBL and HAA’s definition of a “specific, adverse impact” upon public health or safety is purposely narrow. As the Department of Housing and Community Development recognizes:
[t]he [Housing Accountability Act] considers that such impacts would be rare: “It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety, as described in paragraph (2) of subdivision (d) and paragraph (1) of subdivision (j), arise infrequently.” (Gov. Code, § 65589.5, subd. (a)(3).)
(HCD, Housing Accountability Act Technical Assistance, September 15, 2020, at p. 20.)
Section 65589.5(j) requires cities to determine whether a project complies with the applicable, objective general plan, zoning, subdivision, and design standards. The HAA defines the term “objective” to mean “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (Gov. Code § 65589.5(h)(9)). Cities must make this determination based on a “reasonable person” standard. (Gov. Code § 65589.5(f)(4)).
Accordingly, if a project complies with applicable, objective general plan, zoning, subdivision, and design standards in the eyes of a reasonable person, the project cannot be disapproved or conditioned on a lower density unless, based on a preponderance of the evidence in the record, it would have a "specific, adverse impact" upon public health or safety and there is no feasible way to mitigate that impact. If a city’s disapproval or conditional approval is challenged in court, the burden is on the City to prove its decision conformed to all the conditions specified in the HAA. (Gov. Code § 65589.6).
The courts have explained that the HAA’s findings constitute the “only” grounds for a lawful disapproval of a housing development project. ( North Pacifica, LLC v. City of Pacifica (N.D.Cal. 2002) 234 F.Supp.2d 1053, 1059-60, disapproved on other grounds in North Pacifica LLC v. City of Pacifica (2008) 526 F.3d 478; see also Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 715-16). Moreover, the HAA creates such a “substantial limitation" on the City Planning Department
December 17, 2025
REDT-58150\3271903.1
government's discretion to deny a permit that it amounts to a constitutionally protected property interest. ( North Pacifica, LLC v. City of Pacifica , supra, 234 F.Supp.2d at 1059).
Here, the City cannot make the rare health and safety findings necessary to disapprove the Project under the HAA. Accordingly, the City must deny the appeal, and allow the Project to move forward.
II. Density Bonus Law
The Project is also protected by the DBL (Gov. Code §§ 65915-65918), a housing production statute that is required to be interpreted liberally in favor of producing the maximum number of total housing units. (Gov. Code § 65915(r)).
The DBL provides that “an applicant may submit to a city . . . a proposal for a waiver or reduction of development standards that will have the effect of physically precluding the construction of a development” that is entitled to the benefits of the Density Bonus Law. (Gov. Code § 65915(e)(1)). A “development standard” is defined broadly as “a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation.” (Gov. Code § 65915(o)(1)). An applicant is not limited in the number of waivers that may be requested and granted. (Gov. Code § 65915(e)(1)). Waivers can be requested for “any development standard that will have the effect of physically precluding the construction of a development” that meets the Density Bonus Law’s minimum affordable requirements “at the densities or with the concessions or incentives permitted by [the Density Bonus Law].” (Id.).
A local government may deny a requested waiver only in specified circumstances.
Specifically, a local government may deny a requested waiver only if granting the waiver “would have a specific, adverse impact . . . upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact” or “would have an adverse impact on any real property that is listed in the California Register of Historical Resources or that would be contrary to state or federal law. (Id.). 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.” (Gov. Code § 65589.5(d)(2)). Conditions that would have a specific, adverse impact upon the public health and safety “arise infrequently.” (Gov.
Code § 65589.5(a)(3)).
A local government can require “an applicant to provide reasonable documentation to establish eligibility” for a requested waiver or reduction of a development standard. (Gov. Code § 65915(a)(2)). According to HCD, the “showing or ‘reasonable documentation’ required by the applicant is that the project qualifies for a density bonus.” HCD also has concluded that “[a] project that meets the requirements of the City Planning Department
December 17, 2025
REDT-58150\3271903.1
[Density Bonus Law] is entitled to waivers if they are needed, ‘period.’” (Id., quoting Wollmer v. Town of Berkeley, 193 Cal.App.4th 1329, 1346-47 (2011)).
A recent California Court of Appeal case has further confirmed that a local government cannot deny a requested waiver based on whether a developer could have designed its project in a way that minimizes the need for requested waivers. (Bankers Hill 150 v. Town of San Diego, 74 Cal.App.5th 755 (2022)). In Bankers Hill 150, project opponents claimed that the project could be redesigned to be more consistent with the city’s development standards and therefore the city should have denied the requested waivers. The Court rejected that argument, holding that the city could not demand the developer to redesign its building to better meet the city’s development standards even if a design existed that would allow fewer variations of local development standards than the proposed project. (Id. at 775).
By providing 100% of its units as affordable, the Project meets the requirements for a density bonus and is entitled to the waivers it requested. Crucially, none of the specified conditions that would allow the City to deny the Project’s requested waivers apply. The Project Site is not listed in the California Register of Historical Resources and none of the waivers that could be requested would have a specific, adverse impact on health or safety or would be contrary to state or federal law.
Again, the City must deny the appeal in its entirety.
III. Conclusion
We appreciate City staff’s hard work processing the Project application and its approval. After the pending, unmeritorious appeal is denied, we look forward to working with the City to deliver the Project’s critically needed units to the community.
Very truly yours,
MILLER STARR REGALIA
Travis Brooks
Travis Brooks
TZB:tzb