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process the Project applications as a PSA incomplete application notice, the City has failed to address and satisfy the proper burdens of proof.
1. The City Failed to Provide a Proper or Timely Notice of Incomplete Application.
The PSA requires certain elements for a notice to qualify as a “notice of incomplete application.” Government Code section 65943 provides, in relevant part:
Not later than 30 calendar days after any public agency has received an application for a development project, the
agency shall determine in writing whether the application is complete and shall immediately transmit the determination to the applicant for the development project. … If the
application is determined not to be complete, the agency's determination shall specify those parts of the application which are incomplete and shall indicate the manner in
which they can be made complete, including a list and
thorough description of the specific information needed to complete the application. The applicant shall submit
materials to the public agency in response to the list and description.
(Gov. Code, § 65943, subd. (a), emphasis added.) The Rejection Notice does not purport to identify any items that are incomplete in the formal application and provides no path to cure any purported deficiency. It simply communicates a summary refusal to process and a direction to start over by filing a different application for a substantially different set of entitlements, specifically a General Plan Amendment, a Local Coastal Program Amendment and a Zone Change. Because the letter does not qualify as a notice of incomplete application under section 65943, the formal Project applications therefore are deemed to be complete, as a matter of law, since the 30-day deadline on providing a valid deemed incomplete notice -- which commenced on November 10, 2022 -- has long since lapsed. (Ibid.) NCD continues to reserve its rights under the PSA
2. The City's Attempt to Sidestep Its Statutory Burden under the HAA Is Improper.
The lynchpin theory of the Rejection Notice is the assertion that the Project application is not consistent with the CC-4 zoning district and the Coastal Commercial land use designation in the City’s General Plan. The City’s assertion turns a blind eye to the very purpose at the heart of the Builders Remedy: to allow qualifying affordable housing projects to proceed through the application process to a final decision even if the 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.” (Gov. Code, § 65589.5, subd. (d)(5).) Bill Brand, Mayor
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The Builder’s Remedy derives from Government Code section 65589.5 subdivision (d)(5), which provides, in relevant part, that a “local agency shall not disapprove a housing development project … for very low, low-, or moderate-income households … or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households” … unless it makes written findings, based upon a preponderance of the evidence in the record” of one of the following:
(a) The jurisdiction has adopted a housing element in substantial compliance with the Housing Element Law (Gov. Code, § 65580, et seq.), and the jurisdiction has met or exceeded its share of the regional housing need allocation;
(b) The housing development project as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderateincome households infeasible. 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.
(c) The denial of the housing development project or imposition of conditions is required to comply with specific state or federal law, and there is no feasible method to comply without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. (d) The housing development project is proposed on land zoned for agriculture or resource preservation that is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, or which does not have adequate water or wastewater facilities to serve the project;
(e) The housing development 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, and the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article.”
(Gov. Code, § 65589.5, subd. (d)(1)-(5), emphasis added.) If none of the above findings can be made based on a preponderance of the evidence in the record, the Builders Remedy of the HAA mandates approval of housing development projects that include units for very low, low-, or moderate-incomes households even if they are inconsistent with zoning and the jurisdiction’s general plan. (Ibid.) Bill Brand, Mayor
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The record establishes that the City has not made any of the above findings.
Nor can it evade its obligation to make such findings by attempting to convert this case into a simple incomplete application determination under the PSA. The City’s sole basis for rejection of the Project application is a pat determination -- made at the staff level -- that the Project is not consistent with zoning. It further declares, again, without any evidence let alone a preponderance of evidence in the record that its Housing Element was compliant with the Housing Element Law.
It is a matter of law that the above findings can only be made based on the elements of the zoning code and general plan as they existed on the date the application was “deemed complete.” (Id., § 65589.5, subd. (d)((5).) The Housing Crisis Act of 2019 (SB330), amended the Housing Accountability Act to provide that an application is “deemed complete” on the date of submittal of the preliminary application.
In this case, it is a matter of record that (a) NCD submitted an SB330 Preliminary Application on July 20, 2022; (b) the City’s Housing Element was classified by the HCD as “out of compliance” on July 20, 2022, and was not deemed compliant until the HCD issued a compliance determination on September 1, 2022. The submittal of the preliminary application pursuant to Government Code section 65941.1 vested the right to develop a housing development project in accordance with the ordinances, policies, and standards as they were in effect when the preliminary application was submitted. (Gov. Code §65589.5, subds. (d)(5), (o)(1).)
3. The City Has Not Supported Its Rejection of the Application with the Required Preponderance of the Evidence in the Record.
The Rejection Notice is premised on the theory that the HCD’s September 1, 2022, consistency determination applies retroactively to the date NCD submitted the Preliminary Application on July 20, 2022. The City does not provide any legal or evidentiary support for that proposition. In fact, the HCD itself determines compliance to arise as of the date it issues its compliance certification pursuant to Government Code section 65585 subdivision (d). (See Letter of Technical Assistance from HCD, dated October 5, 2022, entitled “3030 Nebraska Avenue, Santa Monica – Letter of Technical Assistance,” enclosed). Until that time, the HCD’s Housing Element Review and Compliance Report identified the City’s Housing Element as “Out of Compliance.” The HCD’s determination is the operative date of compliance under the Housing Element Law. Any conclusion to the contrary would upset the carefully crafted statutory process for obtaining approval of housing elements set forth at Government Code sections 65580, et seq. It also would upend efforts by the building community to invoke the rights afforded by the Builders Remedy to build affordable housing projects, as it would render unreliable the HCD’s public notice of the compliance status of housing elements throughout the State.
Most importantly, the City’s summary refusal to process the formal Project application directly collides with Government Code section 65589.5 subdivision (d), which prohibits any local government denial of a Builders Remedy affordable housing project unless, among other things, “it makes written findings, based upon a Bill Brand, Mayor
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preponderance of the evidence in the record” that “the jurisdiction has adopted a revised housing element in accordance with Section 65588 that is in substantial compliance with this article … .” (Gov. Code, § 65589.5, subd. (d)(5), emphasis added.) The Legislature’s requirement to adopt “written findings” supported by a “preponderance of the evidence in the record” concerning the status of the local government’s housing element makes clear that it requires a far higher standard of proving compliance with the Housing Element Law than merely invoking the HCD’s determination under Government Code section 65585 subdivision (h), even if that determination were retroactive to July 5, 2022 (it is not). Indeed, an HCD determination under section 65585 is entitled only to a rebuttable presumption (id, § 65589.3.) It cannot, by itself, meet the lofty standard of proof under the Builders Remedy.
4. The Evidence Establishes that the Housing Element Was Not in Compliance with the Housing Element Law.
As noted, the City has not mustered evidence to support a legal conclusion that its Housing Element was compliant on the date of the submittal of the Preliminary Application. In fact, the evidence gives rise to significant doubt about the legal status of the Housing Element. The HCD’s September 1, 2022, letter demonstrates that the HCD anticipates voter ratification of zone changes necessary to secure compliance at the March 2023 election:
HCD acknowledges that although the City Council
adopted a Preferred Land Use Plan in May 2021, the
City is still in the process of updating its general plan, including the land use element. This update requires
approval by the electorate. The City anticipates placing the issue on the ballot in March 2023 with multiple
implementing program actions to be completed
subsequent to voter approval. The housing element
has been written to be consistent with the Preferred
Land Use Plan. Should the ballot measure be
disapproved by the electorate, the City must take
additional timely actions as outlined in Program 15
(Monitoring the Effect of Article 27 of the City Charter [Measure DD]) to ensure continued compliance with
State Housing Element Law.
(Letter re Redondo Beach’s 6th Cycle (2021-2029) Adopted Housing Element (HCD, Sept. 1, 2022), available as of the date of this letter at https://www.redondo.org/civicax/filebank/blobdload.aspx?BlobID=41170.) The necessity of voter approval for the City to adopt a legally compliant housing element derives from Measure DD, which added article XXVII to the City Charter.
Section 27.4, subsection (a) of article XXVII requires that voters approve “(e)ach major change in allowable land use,” with a major change in land-use defined as “any proposed amendment, change, or replacement of the General Plan . . . of Bill Brand, Mayor
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the City's zoning ordinance . . . or of the zoning ordinance for the coastal zone” that would significantly increase traffic, density or intensity of the use, change the land use from public to private use, or transition allowable land uses from nonresidential to residential or mixed-use and such transfer exceeds density of 8.8 dwelling units per-acre. (City of Redondo Beach Charter, §§ 27.2 (f)(1)(2) and (3)).
The City's adopted Housing Element unequivocally requires “major landuse changes” to ensure delivery of promised Regional Housing Needs Allocation (“RHNA”) units and thereby achieve compliance. The Housing Element proposes building on numerous sites “non-vacant” sites currently zoned for nonresidential use and transitioning those sites for residential development. Such rezoning indisputably trips the allowable density threshold under the City Charter, thereby making it a “major land-use change.” Despite the above, the City's proposed ballot for March 7, 2023, features no proposed measure adopting the major land-use changes necessary for the housing element.
The compliance status of the City's housing element is currently under review in Los Angeles Superior Court and is the subject of threatened litigation by third-party interest groups promoting development of residential housing. The grounds for those challenges to the City's Housing Element are in the same vein as the above; that the City has not yet effectively adopted a compliant Housing Element and has not taken requisite steps to ensure actual delivery on its promises to the HCD.
Among other things, NCD's lawsuit challenges the legitimacy of the City's designation of potential project sites for residential development and alleges those designations to be infeasible, if not unrealistic. (See Petition for Writ of Mandate filed by NCD and Leonid Pustilnikov on June 13, 2022, amended January 26, 2023, LASC case no. 22TRCP00203 (“Housing Element Lawsuit”), enclosed.) Many of the “non-vacant” development sites proposed for RHNA units have pre-existing leases and uses that foreclose displacement by residential uses in the relevant housing cycle. (Id., ¶ ¶ 50-51, 66-67). The NCD lawsuit further challenges the City's housing element for the City's failure to conduct the necessary ballot measure for the City's voters to approve the major land-use changes necessary to adopt the housing element that the HCD deemed “compliant.” (Id., ¶¶ 52, 54).
To add to NCD's pending lawsuit, third-party housing advocacy group, YIMBY Law, also has threatened litigation to challenge the City's housing element and adoption. YIMBY Law's concerns echo those identified in NCD's complaint; that the City has not adequately identified sites to develop the City's affordable housing requirements and has not actually adopted its housing element pursuant to the terms of the City's charter. (See Notice of Claims by YIMBY LAW dated December 21, 2022, addressed to the City and City Council, enclosed).
The confluence of attacks on the City's Housing Element reveals fatal flaws and nagging questions about its legal sufficiency. The City Council’s recent, January 25, 2023, denial of a 30-unit affordable housing project that was specifically called out in the Bill Brand, Mayor
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Housing Element’s Residential Sites Inventory further reveals the City is not serious about its housing commitments to the HCD and the public. The City’s position that NCD cannot avail itself of the HAA for the Project because it has a compliant housing element is dubious, at best, and cannot clear the stringent burden of proof of the HAA.
5. Legislative Intent is for the HAA and Coastal Act to Co-Exist, Not for the Coastal Act to Supersede the HAA.
The Staff Report provided in advance of the appeal hearing suggests that the City also rejected the Project application due to inconsistency with the City's Local Coastal Program (“LCP”). Case law and subsequent amendments to the HAA demonstrate an intent for the two statutes to harmonize their respective goals; namely, to approve development of HAA housing developments, with feasible mitigation to address compliance with coastal environmental concerns, if necessary.
In 2016, a housing development was proposed for the Coastal Zone that was the recipient of density bonus incentives and other concessions. Opponents of the project appealed and challenged approval of the project based in part on a claim that the incentives were in violation of the Coastal Act. The appellate court did not review the issue of the relationship between the HAA and the Coastal Act, but it opined in dicta that the State Density Bonus Law was subordinate to the Coastal Act. (See Kalnel Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927, 934.) In response, the Legislature amended the State Density Bonus Law in 2018, specifically referencing the Kalnel decision and the dicta therein stated, to clarify that the two statutes are to be harmonized: “(a)ny density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code” (the Coastal Act). (Ibid., emphasis added; Gov. Code, § 65915, subd. (m).) The Legislature's amendment to the State Density Bonus Law in light of the Kalnel decision demonstrates the intent to continue incentivizing affordable housing in the Coastal Zone while also allowing for appropriate mitigation and other measures to comply with the Coastal Act.
While the HAA does include a “savings clause” stating that its provisions do not “relieve the local agency” from complying with the Coastal Act, nothing in the HAA states or even suggests that the Coastal Act somehow overrides, supersedes or preempts the HAA. Indeed, in the context of potentially conflicting statutes, courts are required to harmonize the two enactments. As one court observed, If, after an examination of the statutes in context, they “conflict on a central element, we strive to harmonize them so as to give effect to each. If conflicting statutes cannot be reconciled, later enactments supersede earlier ones
[citation], and more specific provisions take precedence over more general ones [citation].”
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(City of Chula Vista v. Drager (2020) 49 Cal.App.5th 539 citing Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310.) The HAA is the later of the two statutes; it has more force, effect and specificity with respect to legislative intent directing government agencies to adhere to its provisions for HAA housing development projects.
By way of example, recent amendments to the HAA state:
The Legislature’s intent in enacting this section in 1982 and in expanding provisions since then was 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 and emergency
shelters. That intent has not been fulfilled.
(Gov. Code, § 65589.5, subd. (a)(2)(K), emphasis added.) The HAA also expressly provides 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.” (Id., § 65589.5, subd. (a)(2)(L) emphasis added.) The HAA also states “[i]t 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.” (Id., § 65589.5, subd. (a)(3).) In striking the balance between the HAA and the Coastal Act, a court would have to take note of the Coastal Act’s provision regarding affordable housing:
Nothing in this division shall exempt local governments from meeting the requirements of state and federal law with
respect to providing low- and moderate-income housing,
replacement housing, relocation benefits, or any other
obligation related to housing imposed by existing law or any law hereafter enacted
(Pub. Resources Code, § 30007.)
6. Conclusion.
City staff are bound by the Housing Accountability Act -- and by theories established by case law -- to process applications for housing development projects like this; it is a mandatory duty. (See, e.g., Building Industry Legal Defense Foundation v.
City of San Juan Capistrano (1999) 72 Cal.App.4th 1410 [mandatory duty to process Bill Brand, Mayor
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submitted applications].) If you have any questions about this letter, please do not hesitate to call me. Representatives of NCD will be on hand at tonight’s hearing.
Very truly yours,
Michael W. Shonafelt
cc: Michael W. Webb, Esq., City Attorney - [email protected] Brandy Forbes, Community Development Director - [email protected] Leo Pustilnikov - [email protected]
Brandon Straus - [email protected]
STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
October 5, 2022
Dave Rand
Rand Paster & Nelson LLP
633 W. Fifth Street, 64th floor
Los Angeles, CA 90071
Dear Dave Rand:
RE: 3030 Nebraska Avenue, Santa Monica – Letter of Technical Assistance This letter is in response to your September 16, 2022, request for technical assistance regarding the implementation of the Housing Accountability Act (HAA), particularly those provisions that require housing element compliance, in the context of the proposed multi-family residential development in Santa Monica at the address noted above. The inquiry pertains to the relationship of preliminary applications to projects that invoke the provisions of subdivision (d)(5) of Government Code section 65589.5 once a housing element has been found in substantial compliance with State Housing Element Law.
Background
A housing development project with housing for very low-, low-, or moderate-income households1 cannot be denied (or approved in a way such that conditions render the inclusion of affordable housing infeasible) unless one of five potential written findings, based upon a preponderance of the evidence in the record, can be made. (Gov. Code, § 65589.5, subd. (d).) Under subdivision (d)(5), a jurisdiction can only deny a qualifying project if both of the following criteria are satisfied: (1) The project is inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation and (2) the jurisdiction has a housing element in substantial compliance with State Housing Element Law. Therefore, the status of a jurisdiction’s housing element is of critical importance when determining the applicability of the provisions of subdivision (d)(5). 1 “Housing for very low, low-, or moderate-income households” means that either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in Section 65008 of this code. (Gov. Code, § 65589.5, subd. (h)(3).)
Dave Rand, Rand Paster & Nelson LLP
Analysis
The question posed in your September 16, 2022; request is as follows:
If a preliminary application is submitted to a jurisdiction without a compliant Housing Element, and the jurisdiction subsequently achieves Housing Element compliance during the project’s entitlement process, do the rights vested by the preliminary application continue to apply?
The answer is “yes.” The submittal of a complete preliminary application pursuant to Government Code section 65941.1 vests the right to develop a housing development project in accordance with the ordinances, policies, and standards in effect when a preliminary application is submitted. (Gov. Code § 65589.5, subd. (o)(1).) Therefore, if the submittal occurs at a time when the jurisdiction does not have a compliant housing element, any potential benefits afforded to the applicant as a result of the jurisdiction’s noncompliant status would remain throughout the entitlement process even if the jurisdiction subsequently achieves compliance during the entitlement process.
If you have questions or need additional information, please contact Brian Heaton at [email protected].
Sincerely,
Melinda Coy
Proactive Housing Accountability Unit Chief
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RUTAN & TUCKER, LLP
Douglas J. Dennington (State Bar No. 173447)
[email protected]
Peter J. Howell (State Bar No. 227636)
[email protected]
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Telephone: 714-641-5100
Facsimile: 714-546-9035
Attorneys for Petitioners,
New Commune DTLA LLC and Leonid Pustilnikov
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, CENTRAL JUSTICE CENTER
NEW COMMUNE DTLA LLC, a California
limited liability company; and LEONID
PUSTILNIKOV, an individual
Petitioners and Plaintiffs,
vs.
CITY OF REDONDO BEACH, a California
charter city; and CITY COUNCIL OF THE
CITY OF REDONDO BEACH,
Respondents and Defendants.
Case No. 22TRCP00203
VERIFIED FIRST AMENDED PETITION
FOR WRIT OF MANDATE AND
COMPLAINT FOR DECLARATORY
RELIEF
[CCP §§ 1085, 1060; Gov. Code §§ 65587,
65751]
Date Action Filed: June 13, 2022
Trial Date: None
Electronically FILED by Superior Court of California, County of Los Angeles on 01/26/2023 12:20 PM David W. Slayton, Executive Officer/Clerk of Court, by D. Harper,Deputy Clerk Assigned for all purposes to: Inglewood Courthouse, Judicial Officer: 22TRCP00203 1 2
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18521928.2 a01/26/23 -2-VERIFIED FIRST AMENDED PETITION FOR WRIT OF MANDATE Petitioners New Commune DTLA LLC (“New Commune”) and Leonid Pustilnikov (collectively, “Petitioners”) respectfully petition this Court for issuance of a writ of mandate pursuant to Code of Civil Procedure (“CCP”) section 1085, Government Code sections 65580 et seq., and Redondo Beach Charter Article 27, and complain for a declaration of their rights pursuant to CCP §§ 526 and 1060, directed at Respondents and Defendants City of Redondo Beach and the City Council of the City of Redondo Beach (collectively, “City” or “Respondent”), as follows:
INTRODUCTION
1. As recognized by the California Legislature, California is in the midst of a “housing supply and affordability crisis of historic proportions.” (Gov. Code 65589.5(a)(2).) In an effort to alleviate that crisis, the Legislature has taken a number of steps to ensure that local jurisdictions accommodate their share of needed housing, both by requiring that cities and counties take affirmative steps to accommodate housing, and by restricting the ability of local jurisdictions to exercise their land use authority in ways that reduce the potential housing supply.
2. One of the ways in which the State has restricted local land use authority in relation to housing is the requirement that cities adopt—and update according to a fixed schedule—the housing element portion of their general plan, and submit said element to the State Department of Housing and Community Development (“HCD”) for review. (Gov. Code § 65585.) Among other things, the housing element is required to demonstrate how the city will meet its share of regional housing needs, known as its Regional Housing Needs Allocation (“RHNA”). (Gov. Code § 65583.)
3. This action is necessary because—as confirmed by HCD—the City has failed to adopt a timely and State-law compliant housing element and/or to identify adequate sites for housing development within the City.
PARTIES
4. Petitioner New Commune is a California limited liability company. New Commune is a taxpayer and property owner within the City of Redondo Beach, and desires to develop housing on property it owns within the City.
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5. Petitioner Leonid Pustilnikov is a California resident and taxpayer. Mr.
Pustilnikov has property interests within the City of Redondo Beach, including, but not limited to, his ownership interest in New Commune, and wishes to develop housing within the City. Mr.
Pustilnikov likewise has an ownership interest in various entities that own a 50 acre site in the City located at 1100 N. Harbor on which AES operates a power plant that is currently scheduled to shut down at the end of 2023 (“AES Site”).
6. Respondent City of Redondo Beach is, and at all times mentioned herein was, a California charter city and municipal corporation organized and existing under the laws of the State of California and is located within the County of Los Angeles.
7. Respondent City Council is the elected decision-making body of the City and is responsible for adopting the City’s housing element.
JURISDICTION AND VENUE
8. This Court has jurisdiction over this proceeding pursuant to Code of Civil Procedure sections 1085, and 1060, as well as Government Code Sections 65587 and 65751.
9. Venue in this Court is proper pursuant to CCP section 394, in that Respondents are located within the County of Los Angeles.
STATUTORY BACKGROUND
10. In recent years, the California Legislature has taken increasing actions to address what it has described as a “housing supply and affordability crisis of historic proportions.” (Gov.
Code § 65589.5(a)(2)(A).) As declared by the Legislature, “[t]he consequences of failing to effectively and aggressively confront this crisis are hurting millions of Californians, robbing future generations of the chance to call California home, stifling economic opportunities for workers and businesses, worsening poverty and homelessness, and undermining the state’s environmental and climate objectives.” (Id.)
11. “While the causes of the crisis are multiple and complex,” the Legislature has determined that policy failures have significantly contributed to “an unmet housing backlog of nearly 2,000,000 units.” (Gov. Code § 65589.5(a)(2).) At least 180,000 new units must be built annually to keep pace with growth through 2025. (Gov. Code § 65589.5(a)(2)(D).) 1 2
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12. At the heart of the Legislature’s plan to address the housing backlog is the Housing Element Law, Government Code sections 65580 et seq., and the Regional Housing Needs Allocation (“RHNA”) system established therein.
13. Housing elements are a required part of the “general plan” that must be adopted by every city and county and which serves as the “blueprint” or “constitution for future development” within each such jurisdiction.
14. Housing elements are required to be updated more frequently than other required elements of a general plan, typically, as part of an eight year cycle. Cities within the jurisdiction of the Southern California Association of Governments (“SCAG”), including the City, are within the 6th cycle of the housing element process, which covers an eight-year planning period that started October 15, 2021.
15. As established by the Housing Element Law, the RHNA system is a process for determining the regional housing needs throughout the state, and then allocating the necessary housing (segmented by income levels) for each region amongst all of the jurisdictions (cities/counties) within the region. (See Gov. Code §§ 65584.01-65584.05, 65588.)
16. Allocations are finalized in advance of each housing element cycle. Each local jurisdiction is then responsible for adopting an updated housing element that, among other requirements, demonstrates how it will satisfy its RHNA obligations. (Gov. Code §§ 65583, 65583.2.) The housing element must provide an inventory of sites available for residential development and assess constraints and market realities that affect the likely development activity at those sites, including local land use regulations. If a city does not have adequate sites to accommodate its RHNA, it is required to rezone sites in order to meet its allocation. (See Gov.
Code, §§ 65583(c)(1)(A), 65913.1.)
17. The inventory must include detailed information, particularly as to non-vacant sites, demonstrating that the sites will actually be available for the contemplated residential development within the relevant planning period. (Gov. Code § 65583.2.)
18. Where a city is relying on non-vacant sites to make up more than fifty percent of its lower-income housing need, it is also required to adopt “findings based on substantial evidence 1 2
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18521928.2 a01/26/23 -5-VERIFIED FIRST AMENDED PETITION FOR WRIT OF MANDATE that the use is likely to be discontinued during the planning period” at the time the City adopts its housing element. Absent such findings based on substantial evidence, the existing use is “presumed to impede additional residential development.” (Gov. Code § 65583.2(g)(2).)
19. Each city submits a draft of its housing element to HCD for review and receives written findings back from HCD. (Gov. Code § 65585(b)(3).) In its findings, HCD is to determine whether the draft housing element “substantially complies” with the requirements of the Housing Element Law. (Gov. Code § 65585(d).) Prior to adoption of a housing element, a city must consider HCD’s findings and either amend its housing element accordingly or provide findings of its own as to why it believes the housing element substantially complies with the Housing Element Law despite HCD’s determination. (Gov. Code §§ 65585(e), (f).)
20. An interested party may bring an action under Code of Civil Procedure Section 1085 to determine whether a housing element conforms to the statutory requirements and to compel a city to adopt a compliant housing element. (Gov. Code §§ 65587, 65751.)
21. A city that fails to adopt a compliant housing element is prohibited from using its general plan and zoning standards to reject certain housing development projects. (Gov. Code § 65589.5(d)(1).)
22. A city that does not adopt a compliant housing element within 120 days of the due date is subject to an accelerated one-year deadline for all rezoning under the housing element, once adopted. (Gov. Code §§ 65583(c)(1)(A), 65583.2(c), 65588(e)(4)(C).)
23. On June 30, 2022, the Governor signed SB 197 into law as an urgency measure, with the operative language chaptered as Government Code section 65583.4. Section 65583.4 extends the deadline to complete mandatory rezoning for certain jurisdictions that missed their deadline to adopt a certified housing element in 2021, provided that they adopt a housing element in substantial compliance with State Housing Element law within one year of the statutory deadline. If a jurisdiction does so, it will be provided three years and 120 days to complete its rezoning.
24. If a city’s housing element does not substantially comply with state law, a reviewing court must order the city to bring it into compliance within 120 days. (Gov. Code § 1 2
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25. Additionally, the court must subject the city to penalties, which can include a suspension of all non-residential permitting and judicial approval of housing development projects. (Gov. Code §§ 65755(a)(1), (4).) The court may also grant this relief on an interim basis during the pendency of litigation. (Gov. Code § 65757.)
26. At the General Election on November 4, 2008, the citizens of Redondo Beach enacted Article 27 into the City Charter by adoption of Measure DD, which requires that major changes in land use be approved by the voters.
27. When Measure DD initially qualified for the November 4, 2008 ballot, the City Council sought to thwart its effects and approved a competing, narrower measure (Measure EE) that would have greatly limited the types of developments that would need voter approval.
28. However, the voters approved Measure DD with nearly 60% of the vote, while only giving Measure EE 50.34% of the vote, a clear demonstration that the public sought to obtain broad approval rights over land use in the City. As a result, Measure DD, and not Measure EE, went into effect.
29. Unlike similar measures adopted by other jurisdictions which narrowly apply to changes to the General Plan Land Use Element (see Yorba Linda Municipal Code § 18.01.020, Encinitas Municipal Code § 30.00.030), Article 27 of the City of Redondo Beach Charter broadly requires that major changes to any part of the General Plan, such as adoption of the housing element, be approved by the voters, prior to being effective. (Redondo Beach Charter, §§ 27.2(e), (f).)
30. A “major change in allowable land use” includes a change that would “significantly increase traffic, density, or intensity of use,” as well as a change from a nonresidential use to residential. (Redondo Beach Charter, §§ 27.2(f)(1), (3.)
31. As part of Section 27.2 of the City Charter, the voters declared that “dividing a major change in allowable land use that would otherwise require their approval into partial changes that would not by themselves require their approval” frustrates their intent and violates 1 2
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32. Section 27.10 of the City Charter requires that the above voter-approval requirement be “liberally construed to accomplish its purposes.”
33. Section 27.9 of the City Charter allows for equitable relief to restrain any violation of Article 27 or enforce the duties imposed on the City by Article 27.
34. Because adoption of a housing element and the accompanying designation of sites as suitable or available for very low, low-, or moderate-income households in the jurisdiction’s housing element, such as those proposed in the City’s draft housing element, immediately leads to changes in allowable land use regardless of inconsistency with zoning and the general plan land use designation (see, e.g., Government Code § 65589.5(d)(5)(A)), approval of the housing element changes allowable land use and is subject to a vote of the public pursuant to Article 27.
35. In addition, when a city identifies sites in its housing element that must be rezoned to accommodate housing for all household income levels pursuant to Government Code section 65884, the city is then under a mandatory duty to rezone within the timeframe specified by Government Code sections 65583 and/or 65583.4, as applicable.
36. If the City fails to accomplish mandatory rezoning by the applicable deadline, the City loses discretionary authority over the site. (See Government Code § 65583(g)(1).)
FACTUAL BACKGROUND
37. For the 2021-2028 planning period, the City’s RHNA allocation is 2,490 housing units, including 939 very low-income units, 508 low-income units, 490 moderate-income units, and 556 above moderate-income units.
38. The statutory deadline for the City to adopt a compliant sixth cycle updated housing element was October 15, 2021.
39. On or about July 13, 2021, the City submitted a draft housing element to HCD for review, and in the weeks thereafter submitted several revisions to HCD.
40. On September 2, 2021, HCD sent a letter to the City reporting the results of its review of the draft housing element, and detailing numerous changes that were required in order to bring it into compliance with state law. Among other things, the draft housing element failed to 1 2
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41. On October 5, 2021, the City Council adopted Resolution No. CC- 2110-095, adopting the City’s 6th Cycle 2021-2029 Draft Housing Element.
42. On or about January 5, 2022, HCD reported the results of its review of the adopted housing element, and again informed the City that numerous revisions were necessary to bring the housing element into compliance with the Housing Element Law.
43. Among other issues, HCD indicated the housing element failed to satisfy the requirement to “affirmatively further fair housing,” explaining further discussion was needed regarding the extent to which community opposition has constrained housing development within the City, and that the analysis “should incorporate the many meaningful public comment[s] received as part of this review.”
44. HCD further determined the housing element failed to “demonstrate adequate sites to accommodate” the City’s RHNA, and directed the City to give more consideration to comments expressing concerns about the City’s selection of such sites. More particularly, HCD found that the City had failed to demonstrate that non-vacant sites included within the City’s inventory would actually be available for residential development within the relevant planning period. HCD similarly found the City had not demonstrated that certain “small sites” included in the inventory were likely to consolidate or redevelop within the planning period.
45. The January 5, 2022 letter also determined that the City had failed to adequately identify actions that would be taken to accommodate the City’s share of the regional housing need for each income level, and directed the City to amend numerous portions of the Housing Element, including sections discussing zoning amendments, fees for multifamily development, and fair housing issues.
46. On February 8, 2022, months after the statutory deadline, the City adopted Resolution No. CC-2202-003, approving a revised housing element that was purportedly intended to address HCD’s concerns, and apparently thereafter submitted both the February 8 housing element and additional draft revisions thereto to HCD for review.
47. In a April 12, 2022 letter to the City, HCD reported that the housing element 1 2
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48. Once again, HCD determined that the City had failed to identify an adequate inventory of land suitable and available for residential development to meet the City’s housing needs, including vacant sites and sites having realistic and demonstrated potential for redevelopment during the planning period.
49. HCD also notified the City that as a result of the City’s failure to adopt a compliant housing element within 120 days of the statutory deadline, the City is required to rezone sufficient sites to accommodate a minimum of 1,234 units to accommodate the RHNA for lowerincome households no later than October 15, 2022.
50. On or about July 5, 2022, the City Council adopted Resolution No. CC-2207-048, approving a Third Version of the 2021-2029 Draft Housing Element.
51. The Third Version of the 2021-2029 Draft Housing Element designates changes in land use, including a residential overlay for several sites that previously were only eligible for commercial and industrial uses. (See Housing Element, pgs. 86-97.) The City (unrealistically) projects that these sites will account for 1,470 residential units. (See Housing Element, Table H43.)
52. The Third Version of the 2021-2029 Draft Housing Element also contains Program 15, which describes the City’s (incorrect) belief that the adoption of the Housing Element is not subject to a vote of the public and that a vote will be deferred until after a General Plan Update is processed:
The voter-initiated Measure DD requires voters’ approval for any major change in land use. The Recommended Land Use Plan of the General Plan Update proposes new land use designations that represent significant changes in land use, and therefore requires voters’ approval. The General Plan Update will be placed on the ballot by March 2023. Article 27 of the City Charter (Measure DD) is considered by the State Department of Housing and Community Development (HCD) as a potential constraint to the supply of land for residential development.
In the event that the electorate rejects the ballot measure for the Preferred Land 1 2
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53. On or about September 1, 2022, HCD sent the City a letter, indicating its determination that the Third Version of the 2021-2029 Draft Housing Element is in compliance with State Housing Element Law. While that determination gives rise to a “rebuttable presumption” that the latest version is in substantial compliance with the Housing Element Law (see Gov. Law § 65589.3), the Third Version of the 2021-2029 Draft Housing Element remains deficient, including because it still fails to identify adequate sites to accommodate the City’s RHNA.
54. Further, given Article 27 of the City’s Charter, which requires that land use changes go to a vote of the public before they become effective and imposes various other requirements, including a detailed traffic analysis, the housing element will not be effective unless and until it is approved by the City’s voters.
55. In addition, while the City Council voted on July 5, 2022 to approve the Third Version of the 2021-2029 Draft Housing Element, the City Council did not have the full “application” materials required by Section 27.5 of the City Charter, including a “complete, objective discussion” of the potential inconsistencies between the properties noted in the housing element and surrounding uses, as well as a “complete, objective analysis of the traffic circulation and traffic safety impacts” caused by the housing element.
56. Because the City has not yet adopted a housing element in compliance with Article 27, it failed to comply with the aforementioned October 15, 2022 deadline.
57. The City’s repeated failure to identify adequate sites that can realistically be developed during the planning period is inexplicable given that Petitioners and other interested 1 2
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58. Most notably, numerous commenters suggested all or a portion of the 50 acre AES site be designated for housing. Indeed, as part of the limited public input the City solicited on its draft housing element and proposed land use plan, it collected comments via Social Pinpoint, between April 7 and April 11, 2021. Of the 349 comments received, approximately one-third of them related to support for housing at the AES site. No other site in the City that received even a fraction of such support.
59. As a result of the community input, the City’s Planning Commission voted 5-2 to recommend that the City Council consider designating up to 50 percent of the AES Site for mixeduse development, with 30 dwelling units per acre. Thereafter, on or about May 10, 2021, a letter in support of that proposal was submitted on behalf of the owners of the AES Site. The letter explained such owners had developed a plan that would allow the site to be cleared and made available for residential development, such that approximately half the site could be available for such development by 2025, with the remainder of the site cleared by 2027. The letter thus requested that the City include the AES Site in its housing element inventory.
60. Similarly, on or about May 11, 2021, New Commune submitted a letter to the City, explaining it is the owner of an approximately 1 acre site located at 1021 N. Harbor that is currently zoned for commercial uses, and requesting that the City include such site within its housing element inventory as land suitable and available for residential development. The City nonetheless did not include either the AES Site or the New Commune site within the inventory, while including other sites that are extremely unlikely to be redeveloped within the relevant planning period.
61. Mr. Pustilnikov also actively participated in the administrative process, including by providing comments and information to HCD in letters dated August 25, 2021 and October 3, 2021 and email comments dated April 6, 2022. Among other input, such comments explained in detail why various nonvacant sites the City was relying on to satisfy its RHNA obligations in the draft housing element were extremely unlikely to be available for redevelopment, and urging further consideration of the 1021 N. Harbor and AES sites. 1 2
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FIRST CAUSE OF ACTION
Writ of Mandate to Compel Compliance with Housing Element Law, Redondo Beach Charter
(Gov. Code §§ 65587, 65751; C.C.P. § 1085; Redondo Beach Charter, § 27.9)
62. Petitioners hereby incorporate the allegations of the foregoing paragraphs as though set forth in full herein by this reference.
63. Pursuant to Government Code Section 65587 and 65751, any interested party may bring an action pursuant to Code of Civil Procedure Section 1085 to review the conformity of all or part of a housing element with the requirements of the Housing Element Law.
64. Petitioners are interested parties for the purposes of these statutes.
65. The City’s housing element does not substantially comply with state law and thus is subject to an action under Government Code Sections 65587 and 65751.
66. Among other failures, the City’s inventory of sites to be used for housing does not adequately account for the impediment created by the existing uses on non-vacant sites, including the possibility that a site will be maintained in its current use rather than redeveloped during the planning period.
67. The City’s housing element relies on non-vacant sites (mostly through rezoning) to satisfy over fifty percent of the City’s lower-income RHNA, but the City has not made findings supported by substantial evidence that the existing uses on each of these sites will be discontinued during the planning period.
68. The City has not complied with its obligations to take the Housing Element to the voters per Article 27 of the City Charter.
69. In light of these and other inadequacies, including, but not limited to the issues detailed in the September 2, 2021, January 5, 2022, and April 12, 2022 letters from HCD to the City described above, the City has not complied with the substantive requirements of the Housing Element Law and has not identified adequate sites to satisfy its RHNA allocation. The City’s housing element therefore does not substantially comply with state law.
70. Petitioners have performed any and all conditions precedent to filing this action 1 2
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71. Petitioners have no plain, adequate and speedy remedy at law to redress the wrongs described in this Petition.
72. Pursuant to Code of Civil Procedure Section 1085 and Government Code sections 65754, 65755, and 65589.5, a writ of mandate should issue:
(a) Directing the City to bring the adopted Housing Element into compliance with the requirements of the Housing Element Law within 120 days of the Court’s Judgment;
(b) Requiring the City to submit a draft of the City’s Court-ordered Housing Element to HCD for review at least 45 days prior to its adoption, with notice to HCD that the Court-ordered Housing Element is subject to the review procedure set forth in Government Code section 65754;
(c) Directing the City Council to consider HCD’s findings prior to adoption of the Court-ordered Housing Element, if HCD reports its findings to the City within 45 days after HCD receives the draft of the Court-ordered Housing Element; (d) Directing the City Council to submit the adopted Housing Element to the voters for approval in compliance with Article 27, including the requirements for preparation of ballot materials;
(e) Mandating the City’s approval of building permit applications and other related construction permits and subdivision maps on the terms and conditions set forth in Government Code section 65755;
(f) Mandating the City to approve housing projects, including residential units only or mixed-use development consisting of residential and nonresidential uses with at least two-thirds of the floor area designated for residential use, where (a) at least 20 percent of the total units will be sold or rented to lower income households as defined in section 50079.5 of the Health and Safety Code or (b) 100 percent of the units will be sold or rented to persons and families of moderate income as defined in section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in section 65008 of the 1 2
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SECOND CAUSE OF ACTION
Declaratory Relief
73. Petitioners hereby incorporate the allegations of the foregoing paragraphs as though set forth in full herein by this reference.
74. An actual controversy exists between Petitioners and Respondents involving substantial questions regarding the adequacy of the City’s adopted housing element and the legal ramifications of the City’s failure to timely adopt a compliant housing element. Petitioners maintain that the City’s adopted housing element fails to comply with numerous aspects of the Housing Element Law, as described above. Petitioners also maintain that per Article 27 of the Redondo Beach Charter, the City was required to obtain voter approval of the adopted housing element prior to it being effective and has failed to do so. Petitioners are informed and believe and thereon allege that Respondents maintain the contrary. Petitioners further contend that as a result of the City’s failure to adopt a compliant housing element, the City is subject to various statutory remedies and limitations, e.g., the City is prohibited from disapproving certain housing development projects, as set forth in Government Code Section 65589.5. Petitioners are informed and believe and thereon allege that Respondents maintain the contrary. Accordingly, declaratory relief is appropriate and necessary to determine both whether the City has adopted a housing element pursuant to and in compliance with the Housing Element Law, as well as to clarify the legal consequences of the City’s failure to do so.
PRAYER
WHEREFORE, Petitioner prays for relief as follows:
1. A writ of mandate:
a. Directing the City to bring the adopted Housing Element into compliance with the requirements of the Housing Element Law within 120 days of the Court’s Judgment;
b. Requiring the City to submit a draft of the City’s Court-ordered Housing Element to HCD for review at least 45 days prior to its adoption, with notice to 1 2
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c. Directing the City Council to consider HCD’s findings prior to adoption of the Court-ordered Housing Element, if HCD reports its findings to the City within 45 days after HCD receives the draft of the Court-ordered Housing Element; d. Directing the City Council to submit the adopted Housing Element to the voters for approval in compliance with Article 27, including the requirements for preparation of ballot materials;
e. Mandating the City’s approval of building permit applications and other related construction permits and subdivision maps on the terms and conditions set forth in Section 65755;
f. Mandating the City to approve housing projects, including residential units only or mixed-use development consisting of residential and nonresidential uses with at least two-thirds of the floor area designated for residential use, where (a) at least 20 percent of the total units will be sold or rented to lower income households as defined in section 50079.5 of the Health and Safety Code or (b) 100 percent of the units will be sold or rented to persons and families of moderate income as defined in section 50093 of the Health and Safety Code, or persons and families of middle income, as defined in section 65008 of the Government Code.
2. An injunction or order providing relief under Government Code Section 65755.
3. A declaration that:
a. The housing element adopted by the City on July 5, 2022 does not substantially comply with state law.
b. From October 16, 2021 until the City complies with the Court’s writ of mandate through the adoption of a housing element that substantially complies with state law, the City has not had a housing element that was revised in accordance with Government Code Section 65588;
c. The City is required to take the housing element to the voters prior to it 1 2
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c. The City was required to complete any rezoning required under Government Code Sections 65583(c)(1)(A) or 65583.2(c) by October 15, 2022. d. The City is not permitted to use the provisions in subdivision (d)(1) or (d)(5) of Government Code Section 65589.5 to disapprove a housing development project that qualifies for approval under subdivision (d) of that section—that is, a project in which either (A) at least 20 percent of the total units shall be sold or rented to lower income households, as defined in Health and Safety Code Section 50079.5, or (B) 100 percent of the units shall be sold or rented to persons and families of moderate income as defined in Health and Safety Code Section 50093, or persons and families of middle income, as defined in Government Code Section 65008—or to condition the approval of such a project in a manner that renders it infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards.
4. Costs of suit;
5. Attorneys’ fees under Code of Civil Procedure Section 1021.5 and as otherwise allowed by law;
6. Such other and further relief as the Court deems just and proper.
Dated: January 26, 2023 RUTAN & TUCKER, LLP
DOUGLAS J. DENNINGTON
PETER HOWELL
By:
Peter J. Howell
Attorneys for Petitioners New Commune
DTLA LLC and Leonid Pustilnikov
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PROOF OF SERVICE
(New Commune DTLA LLC, et al. v. City of Redondo Beach, et al., LASC Case No. 22TRCP00203)
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed by the law office of Rutan & Tucker, LLP in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 18575 Jamboree Road, 9th Floor, Irvine, CA 92612. My electronic notification address is [email protected].
On January 26, 2023, I served on the interested parties in said action the within:
VERIFIED FIRST AMENDED PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR DECLARATORY RELIEF
as stated below:
(BY E-MAIL) by transmitting a true copy of the foregoing document(s) to the e-mail addresses set forth above.
Executed on January 26, 2023, at Irvine, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Pamela Carvalho
(Type or print name) (Signature)
□ X
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SERVICE LIST
New Commune DTLA LLC, et al. v. City of Redondo Beach, et al.
LASC Case No.: Case No. 22TRCP00203
Lisa Bond, Esq.
RICHARDS WATSON GERSHON
350 South Grand Avenue, 37th Floor
Los Angeles, CA 90071
T: 213.626.8484
E: [email protected]
W: rwglaw.com
ATTORNEYS FOR
CITY OF REDONDO BEACH and
THE CITY COUNCIL OF THE CITY OF
REDONDO BEACH
57 Post Street #908 | San Francisco, CA 94104
December 21, 2022
via U.S. Mail and email
The City of Redondo Beach
Attn: Eleanor Manzano, City Clerk
415 Diamond Street
P.O. Box 270
Redondo Beach, CA 90277-0270
[email protected]
Re: Notice of Claims
Failure to Adopt a Revised Housing Element (Gov. Code §§ 65587, 65751) Deficient Housing Element (Gov. Code § 65009, subd. (d)) Housing Accountability Act (Gov. Code § 65589.5, subd. (d)) To the People and Council of the City of Redondo Beach:
Season’s greetings. We are a nonprofit housing organization whose mission includes “advocating for increased access to housing.”1 This letter is to notify you of our claims that (1) the City failed to adopt its housing element according to City Charter procedures, 2 and (2) even if the housing
element were validly adopted, that the housing element is deficient.3 As a result, the Housing Accountability Act mandates that the City “shall not disapprove a[n affordable] housing development project” with a preliminary application on file before the City “has adopted a revised housing element . . . that is in substantial compliance” with Housing Element Law.4 Therefore, unless the City will agree to “facilitate the development of housing that would increase the [City’s] supply of [affordable] housing”5 as specified in this letter, we will take the City to court. //
//
1 Gov. Code § 65589.5, subd. (k)(2).
2 See City of Redondo Beach 2021–2029 Housing Element; Charter of the City of Redondo Beach, art. XXVII. 3 Gov. Code § 65009, subd. (d)(2)(A).
4 Id. § 65589.5, subd. (d)(1), (5); see id. §§ 65580, et seq. [Housing Element Law]; see also id. § 65589.5, subd. (o)(1) [requiring approval of affordable housing development projects according to “the ordinances, policies, and standards adopted and in effect” at the time a preliminary application is submitted]; id. § 65941.1 [specifying requirements for preliminary application].
5 Id. § 65009, subd. (d)(1)(A).
2 I. Procedural Background
As you know, Housing Element Law requires the City to adopt a housing element in its general plan “to make adequate provision for the housing needs of all economic segments of the community.”6 We, in partnership with Abundant Housing L.A., have written the City about its Housing Element Law obligations. The State Department of Housing and Community Development (“HCD”) has validated our comments. On July 5 of this year, the City Council purported to adopt a housing element, and, on July 11, submitted the purportedly adopted housing element for HCD review.7 We then called on HCD “not to certify the [City’s] plan until it is revised to fully comply with . . . housing element law.”8 Against our request, HCD certified the housing element on September 1.
II. The Housing Element Is a “Major Change in Allowable Land Use” Under Article XXVII of the City Charter, and the Council Violated Article XXVII by Purporting to Adopt the Housing Element Without Submitting It to a “[V]ote of the People.” The purported adoption of the City’s housing element took an irregular course. The City Council’s resolution asserts that the housing element “is a policy document only and no changes in land use designations are included with this project.”9 This assertion is surely intended to explain the Council’s decision never to submit the housing element to “a vote of the People,” as contemplated by City Charter.10 As this part will show, the housing element does change land use designations, and should have been put to a vote. Because it never was, it cannot have been adopted.
Section 27.4 of the City Charter requires that “[e]ach major change in allowable land use shall be put to a vote of the People.”11 The Charter in turn defines a “major change in allowable land use” as “any proposed amendment, change, or replacement of the General Plan” that, among other things, would “significantly increase traffic, density or intensity of use above the as built condition in the neighborhood” or “change a nonresidential use to a residential or mixed use resulting in a density of [] greater than 8.8 dwelling units per acre.”12 6 Id. § 65580, subd. (d); see also id. § 65302, subd. (c). 7 The City’s timing violated Section 65585 of the Government Code. Housing Element Law mandates that any “subsequent draft” housing element be submitted to HCD “[a]t least 60 days prior to [its] adoption.” (Gov. Code § 65585(b)(1).) Here, the City purported to adopt its housing element six days before the City submitted the draft to HCD for review. The City thus disobeyed the statutory mandate that subsequent drafts “shall” be submitted to HCD “[a]t least 60 days prior to adoption.” (Ibid.)
8 Abundant Housing L.A./YIMBY Law comment letters of May 20 and September 15, 2021, and August 12 and 17, 2022, attached as Exhibits 1–4.
9 City Council Resolution No. CC-2207-048 (Jul. 5, 2022), ¶ 1 [attached as Exhibit 5]. But see Gov. Code § 65589.5, subd. (d)(5)(A) [specifying that site-inventory densities in a housing element preempt “both the jurisdiction’s zoning ordinance and general plan land use designation”].
10 City Charter art. XXVII, § 27.4(a).
11 Ibid.
12 See id. § 27.2(f) [italics added].
3 The housing element, which is a required element of the general plan,13 makes many such changes. Table B-2 of the housing element schedules dozens of sites, many of which are currently nonresidential, for rezoning to residential and mixed use with a minimum density of 20 du/ac.14 That is above the 8.8 du/ac threshold triggering Article XXVII. As will be shown below, an adopted housing element gives effect to these increases in allowable density whether the City completes the rezonings or not. The housing element is therefore a “major allowable land use change,” and was required by Charter to be “put to a vote.”15
In an effort to shortcut Article XXVII, the City Council denied in its resolution that the housing element makes any “changes in land use designations.”16 The resolution cites no authority for its proposition that the housing element is a mere “policy document.”17 Again, it is a required element of the general plan.18 The resolution concedes that the housing element necessitates “amendments to the City’s Land Use Plan”—i.e., the scheduled rezonings just described—and that those amendments “will constitute a major change in allowable land use pursuant to Article XXVII.”19 Accordingly, the housing element promises to schedule these updates for a vote in March 2023.20 Plainly, then, the housing element does impose a “major change in allowable land use.” To adopt the housing element without a vote, the Council’s theory must be that the housing element is somehow not the instrument that makes the changes it promises to make.
Contrary to the Council’s theory, Housing Element Law provides that certain land-use changes, necessary to make sites “available for very low, low-, or moderate-income households in the jurisdiction’s housing element,” become virtually automatic upon adoption.21 These are the changes identified in the City’s site inventory, as described above. By operation of law, “the density specified in the housing element” for an opportunity site preempts “both the jurisdiction’s zoning ordinance and general plan land use designation” as applied to any affordable housing development project on that site.22 Moreover, scheduled densities for all identified sites become automatic upon the City’s “fail[ure] to complete the rezoning by the [statutory] deadline.”23 A housing element thus changes the density on all sites identified for rezoning, whether the local government completes the rezoning or not. And here, the City’s draft housing element identifies dozens of such sites.24
13 Gov. Code § 65302, subd. (c).
14 Housing Element, tbl. B-2, at PDF pp.158–60. Maximum densities range from 30 to 55 du/ac. 15 City Charter art. XXVII, § 27.4(a).
16 Ex. 5, supra fn. 9, ¶ 1.
17 See ibid.
18 Gov. Code § 65302, subd. (c).
19 Id. ¶ 2.
20 Draft Housing Element, pp. 69, 110, 118, D-56.
21 See Gov. Code § 65589.5, subd. (d)(5)(A).
22 Ibid.
23 Id. § 65583, subd. (g)(1).
24 Housing Element, tbl. B-2, at PDF pp.158–60.
4 Courts have also been loath to exempt general-plan elements from voter-control measures such as Article XXVII. The seminal case on this subject, DeVita v. County of Napa, held that “general plans can be amended by initiative.”25 General-plan amendments can likewise be made “subject to referendum.”26 Article XXVII itself has been found applicable to a coastal-program amendment.27 Although DeVita left open whether housing elements are subject to voter control,28 the First District recently adjudicated an open-space/land-use element inconsistency created by a Richmond voter initiative without questioning the initiative’s parallel amendment of the housing element.29 And just last year, a superior court refused to exempt certain of Encinitas’s housingelement programs from a voter-control measure nearly identical to Article XXVII here.30 We doubt a court would hold differently in the City’s case.
The City Council violated its Charter by failing to submit its draft housing element to “a vote of the People.”31 As a result, the housing element has not been adopted, with consequences we discuss below in part IV. But even if the housing element were validly adopted, it would not substantially comply with Housing Element Law. We turn to this issue next.
III. The City’s Site Inventory Is Deficient.
Even if the People were to adopt the current draft, we would contest HCD’s certification that the draft “substantially complies with the requirements of [Housing Element Law].”32 Substantial compliance “means actual compliance in respect to the substance essential to every reasonable objective of the statute,”33 and as the City is no doubt aware, the Legislature has in recent years added and strengthened many objectives of the Housing Element Law.34 A certified housing element enjoys a presumption of validity, but the presumption is rebuttable.35 We see two problems with the City’s site inventory. First, it fails to meet the heightened evidentiary requirements for inventories that rely mostly on nonvacant sites for lower-income 25 DeVita v. Cnty. of Napa (1995) 9 Cal.4th 763, 775.
26 Yost v. Thomas (1984) 36 Cal.3d 561, 570.
27 See Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 860–62; see also San Mateo Cnty. Coastal Landowners’ Ass’n v. Cnty. of San Mateo (1995) 38 Cal.App.4th 523, 537 [applying DeVita and Yost to uphold initiative amendment to coastal land-use plan]. 28 DeVita, supra, at 793 fn. 11.
29 See Denham, LLC v. City of Richmond (2019) 41 Cal.App.5th 340, 346. 30 City of Encinitas v. Dep’t of Hous. & Cmty. Dev. (Super. Ct. San Diego Cnty., 2021, No. 37-2019-00047963) [attached as Exhibit 6].
31 City Charter art. XXVII, § 27.4(a).
32 See Gov. Code § 65589.3. Given HCD’s compliance finding, we intend to rebut the “presumption of the validity of the [housing] element.” (Ibid.)
33 Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1185 [quoting Buena Vista Gardens Apartments Ass’n v. City of San Diego Planning Dep’t (1985) 175 Cal.App.3d 289, 298]. 34 E.g., AB 1397 (2017); AB 686 (2018); AB 1486 (2019); SB 6 (2019). 35 Gov. Code § 65589.3.
5 housing. Second, the inventory relegates all lower-income housing to the City’s margins, contrary to the City’s duty to affirmatively further fair housing.
A. The Housing Element Fails to Present Substantial Evidence that “[E]ach . . . [E]xisting [U]se” in Its Site Inventory Is “[L]ikely to [B]e [D]iscontinued.” A housing element must include “[a]n inventory of land suitable and available for residential development” that is “sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels.”36 Because vacant land is easier to develop than nonvacant land, specific requirements apply to listed nonvacant sites. HCD defines “vacant” as “without any houses, offices, buildings, or other significant improvements . . . including parking lots.”37 A housing element must “specify the additional development potential for each [nonvacant] site” and “consider,” among other factors, “any existing leases or other contracts that would perpetuate the existing use or prevent redevelopment of the site.”38 When a locality “rel[ies] on nonvacant sites . . . to accommodate 50 percent or more of its housing need for lower income households”—as the City does here—then each existing use is “presumed to impede additional residential development, absent findings based on substantial evidence that the use is likely to be discontinued.”39 The statute awards no credit for evidence that the existing use could be discontinued.
These heightened requirements apply to the City. Redondo Beach has been allocated a need for 1,444 lower-income units.40 Adjusting for 50 claimed units in its pipeline and 144 projected ADUs, the City must identify sites for 1,250 more lower-income units.41 Recognizing the need for a “buffer,” the City claims capacity in its inventory for 1,413 lower-income units—all of which are on nonvacant sites.42 Due to this total reliance on nonvacant sites to accommodate lower-income housing, “each” of these sites is “presumed” infeasible for development, and may be discredited for failure to consider “existing leases” or a lack of “substantial evidence that the [existing] use is likely to be discontinued.”43
Importantly, the City’s site inventory has a thin buffer of 163 lower-income units above its need allocation. If evidence of likelihood is missing for sites worth 163 units of lower-income capacity, then the housing element lacks “the substance essential to [the] reasonable objective” of “mak[ing] adequate provision for the housing needs of all economic segments of the community.”44
36 Id. § 65583, subd. (a)(3); § 65583.2, subd. (a).
37 Dep’t of Hous. & Cmty. Dev., Housing Element Site Inventory Guidebook (2020), p.24. 38 Gov. Code § 65583.2, subd. (g)(1) [italics added].
39 Id., subd. (g)(2) [italics added].
40 Draft Housing Element, p.83.
41 See ibid. We maintain our criticism that the City’s ADU projections are not based on 2018–2021 permits issued. See Ex. 4, p.2.
42 See id., PDF pp.157–60.
43 Gov. Code § 65583.2, subd. (g)(1)–(2).
44 Fonseca, supra, at 1185; e.g., Gov. Code § 65580, subd. (d). 6 As we stated in our letter of August 17, “four sites account [f]or 697 units of claimed [lowerincome] capacity,” and the housing element provides “no analysis of existing leases” as Housing Element Law requires.45 They are clustered away from the city center in a strip mall between a train track and Hawthorne Boulevard, with still-viable commercial retail uses that include a Target, a Living Spaces, a Nordstrom Rack, a Sprouts Farmers Market, and a Total Wine & More.46 It is telling that the City does not represent the property owners’ actual position on redevelopment. Instead, the City promises to “facilitate direct and targeted communications” to those owners, and cites a third-party consultant’s opinion that projects similar to the City’s fantasy have gone forward elsewhere.47 The most the City can say is that these sites “could” be redeveloped.48 This falls short of establishing that they are “likely” to.49 We note that the City establishes owner interest on other sites.50 This bolsters our claim that the City cannot show the remaining owners are “likely to . . . discontinue[]” the existing uses before 2029.51 We reserve our right to challenge any of the following sites:
Site Units Reasoning
126 N. Pacific Coast Hwy. 12 No evidence of church interest South Bay Galleria 70 Requires conditional use permit
1998 S. Pacific Coast Hwy. 21 No evidence of existing lease or owner interest 1870 S. Pacific Coast Hwy. 36 Same
1880 S. Pacific Coast Hwy. 47 Same
2301 190th St. 45 Same
598 Meyer Ln. 45 Same
[6]12 Meyer Ln.52 44 Same
APN 4082-020-810 273 Same
1601 Kingsdale Ave. 114 Target—no evidence of existing lease or owner interest 1519 Hawthorne Blvd. 157 Living Spaces—same
1505 Hawthorne Blvd. 62 Total Wine & More—same
APN 4082-019-049 153 Nordstrom/Sprouts/Ulta/Panera parking lot—same TOTAL 1,079 Insufficient capacity for lower-income housing need 45 Ex. 4, p.2.
46 See ibid.
47 Draft Housing Element, pp.91–93.
48 Id. p.92.
49 Cf. Gov. Code § 65583.2, subd. (g)(2).
50 See Draft Housing Element, pp.86 [South Bay Galleria–70 units], 87 [North Kingsdale–18 units], 87–88 [North Tech District–35 units], 89–90 [190th Street–197 units between Sites E, F, G, and Lamp Plus (see PDF pp.159–60)], 94 [FedEx Area–80 units]. In recognizing owner interest, we do not waive independent arguments that redevelopment is unlikely due to, for example, the requirement for a conditional use permit to realize capacity at the South Bay Galleria site. See, e.g., id. p.86.
51 Gov. Code § 65583.2, subd. (g)(2).
52 512 Meyer Lane does not match the APN listed on PDF p.159; 612 Meyer Lane does. 7 B. The Site Inventory Relegates All Lower-Income Housing to the City’s Margins, in Violation of the City’s Duty to Affirmatively Further Fair Housing.
Site identification must also “affirmatively further fair housing,” which “[s]pecifically . . . means,” among other things, “replacing segregated living patterns with truly integrated and balanced living patterns.”53 As we stated in our last comment letter, the draft housing element “does not distribute development equitably throughout the City,” and instead concentrates nearly all lowerincome housing in a handful of sites at the City’s margins.54 This can be plainly seen on the City’s site map.55 Perhaps not coincidentally, these marginal sites are also where the City maintains its 15 “pallet shelters” for homeless persons that the City touts throughout the draft.56 The City makes no effort to integrate affordable housing into its high-resource districts as State law requires. The City’s siting thus fails to affirmatively further fair housing. * * *
Assuming for argument’s sake that the City adopted its housing element on July 5—and it did not,57 and it could not58—this notice of claim is timely under subdivision (d) of Section 65009 of the Government Code. Next, we will propose an avenue for the City to avoid litigation.
IV. The City Is Violating the Housing Accountability Act by Blocking Hundreds of Lower-Income Units Proposed on Harbor Drive.
Planning for affordable housing in Redondo Beach shouldn’t be this difficult. The owner of a soonto-be-decommissioned power plant, by King Harbor, wants to build hundreds of affordable homes there. Yet the City refuses to support it. Having pointed, without evidence of “likel[ihood],” to so many shopping-mall parking lots by the freeway for so much affordable-housing capacity,59 it is galling that the City would not approve an affordable community where one wants to be built.
The City argues in its executive summary that the entire power-plant site should become a park, and not a home for new neighbors.60 It is unusual for a housing element to argue why housing should not be built. The City cites the Quimby Act to call itself “park poor,” but the Quimby Act defines no such term, and does not find “lack of [parkland]” to be a “critical statewide problem.”61 53 Gov. Code §§ 65583, subd. (c)(1); id. § 8899.50, subd. (a)(1). 54 Ex. 4, p.5.
55 E.g., Draft Housing Element pp.D-26 to -27.
56 See id., passim.
57 Supra part II.
58 Supra fn. 7.
59 Compare Gov. Code § 65583.2, subd. (g)(2) [requiring “substantial evidence that the use is likely to be discontinued”], with Draft Housing Element, pp.90–93.
60 See Draft Housing Element, pp.5–6.
61 Id. p.5; see Gov. Code § 64477 [Quimby Act].
8 That is what the Housing Accountability Act (“HAA”) finds about “lack of housing.”62 The HAA is Housing Element Law’s most consequential enforcement tool, and we are invoking it against the City.
The HAA mandates that the City “shall not disapprove” an affordable housing project, or “render[]” such project “infeasible,” unless the City can substantiate one of five statutory exceptions by a preponderance of the evidence.63 The two main exceptions require the City’s adoption of a revised housing element “in substantial compliance” with Housing Element Law.64 Because the City has not adopted a housing element65—and, even if it has, because its housing element does not substantially comply with Housing Element Law66—the City may not disapprove affordable housing projects under subdivisions (d)(1) or (d)(5) of the HAA.
YIMBY Law is aware that the City has recently “deemed incomplete” an application for affordable housing development at 1021 N. Harbor Drive, on the grounds that the City has “adopted” a housing element that “substantially complies with state law.”67 Please be advised that the City is required by the Permit Streamlining Act to “provide a process for the applicant to appeal” the City’s determination of incompleteness.”68 We are further aware that the City has pending a preapplication for another affordable housing development at 1100 N. Harbor Drive, the power-plant site.69 Under the HAA, because no substantially compliant housing element has been adopted, the City must approve both applications.
* * *
We will sue to invalidate the City’s purportedly adopted housing element, and invoke the HAA in support of these projects, unless the City takes “final action” to cure the deficiencies noted above within sixty-five days.70 We are willing to forgo litigation if the City will simply support affordable housing development where it is proposed. The City can avoid litigation by agreeing to:
(1) issue a revised draft housing element that lists 1021 and 1100 N. Harbor Drive on its site inventory, at sufficient density to accommodate both project proposals, (2) adopt this revised draft by a “vote of the People,”71 and 62 Gov. Code § 65589.5 [HAA}, subd. (g).
63 Id., subd. (d); see id. subd. (h)(3) [affordability requirements]. 64 Id., subds. (d)(1), (5).
65 Supra part II.
66 Supra part III.
67 City Letter of Dec. 7, 2022 [attached Exhibit 7].
68 Gov. Code § 65943, subd. (c).
69 See, e.g., Ex. 1, p.2 [supporting development of power-plant site]; Ex. 3, p.3 [same]; Ex. 4, p.3 [same]. 70 See Gov. Code § 65009, subd. (d)(3)(A) [60 days]; Code Civ. Proc. § 915.2, subd. (b) [5-day extension for service by mail]. Should litigation ensue, we reserve our right to seek reasonable costs of suit, attorneys’ fees, and any applicable fines and penalties under Section 1021.5 of the Code of Civil Procedure and Section 65589.5 of the Government Code. 71 City Charter art. XXVII, § 27.4(a).
9 (3) commit, until a compliant housing element is adopted, not to reject any housing development project, meeting the affordability requirements in subdivision (h)(3) of the HAA, unless one of subdivisions (d)(2)–(4) apply.
Please let us know before midnight on Friday, February 24, 2023, if the City will agree to these terms. We await the City’s response.
Sincerely,
Sonja Trauss
Executive Director, YIMBY Law
Keith Diggs
Attorney (State Bar No. 344182), YIMBY Law
Cc: Mike Witzansky, City Mgr., [email protected] Michael W. Webb, City Att’y, [email protected]
Brandy Forbes, Comm. Dev. Dir., [email protected] You don't often get email from [email protected]. Learn why this is important From: Brandy Forbes
To: Latrice Williams
Subject: FW: New Commune DTLA LLC Ten 21-1021 N. Harbor Drive Date: Tuesday, February 7, 2023 3:12:31 PM
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Ltr to City Council of Redondo Beach 2-7-23.PDF
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Brandy Forbes
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Department of Community Development
415 Diamond Street
Redondo Beach, CA 90277
(310) 318-0637 x2200
[email protected]
www.redondo.org
From: Ruby Williams <[email protected]>
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Cc: Michael W. Shonafelt <[email protected]>; Michael Webb <[email protected]>; Brandy Forbes <[email protected]>; Leo Pustilnikov <[email protected]>; [email protected]
Subject: New Commune DTLA LLC Ten 21-1021 N. Harbor Drive CAUTION: Email is from an external source; Stop, Look, and Think before opening attachments or links.
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Ruby Williams
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