5299.001 / 10060757.2
Newmeyer & Dillion LLP
895 Dove Street
Fifth Floor
Newport Beach, CA 92660
949 854 7000
Michael W. Shonafelt
[email protected]
Las Vegas | Newport Beach | Walnut Creek
newmeyerdillion.com
December 9, 2022
VIA EMAIL AND U.S. MAIL
Brandy Forbes
Community Development Director
City of Redondo Beach
415 Diamond Street
Redondo Beach, CA 90277
[email protected]
Re: New Commune DTLA LLC _Ten21 - 1021 N. Harbor Drive
Dear Ms. Forbes,
This office continues to represent New Commune DTLA, LLC (“NCD”) with respect to the above-referenced, mixed-use, affordable housing development proposed at 1021 N. Harbor Drive (“Project”) in the City of Redondo Beach (“City”). This letter responds to your December 7, 2022, letter regarding the Project and follows NCD’s July 20, 2022, preliminary application for the Project, in accordance with what is colloquially referred to as the “Builders Remedy,” (Gov, Code § 65589.5, subd. (d)) (“Preliminary Application”) and the formal application for the Project submitted on November 10, 2022 (“Formal Application”).
As a preliminary note, the Permit Streamlining Act (Gov. Code, § 65940, et sq.) (“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
Brandy Forbes
December 9, 2022
5299.001 / 10060757.2
materials to the public agency in response to the list and description.
(Gov. Code, § 65943, subd. (a), emphasis added.) Your letter does not purport to identify any items that are incomplete in the Formal Application and provides no path to cure any purported deficiency. It merely communicates a summary refusal to process and a direction to file another application for a substantially different project. Because your letter does not qualify as a notice of incomplete application under section 65943, the Formal Application therefore is deemed to be complete, as a matter of law, as of the date of this letter. (Ibid.) NCD reserves its rights under the PSA.
Moreover, the City’s contention that NCD is “not entitled to develop the proposed residential project site under Government Code 65589.5(d)(5),” is incorrect as a matter of law. Your assertion rests on a contention that NCD could not avail itself of the Builders Remedy under the Housing Accountability Act (Gov. Code, § 65589.5) because it submitted the Preliminary Application after the City’s July 5, 2022, adoption of the second round of revisions to the Sixth Cycle 2021-2029 Housing Element (“Revised Housing Element”). In fact, the Revised Housing Element was not certified as compliant with the Housing Element Law (Gov. Code, § 65580, et seq.) pursuant to Government Code section 65585, subd. (h), until September 1, 2022 -- well after the submittal of the Preliminary Application. Until that time, the Revised Housing Element was identified as “out of compliance” by the California Department of Housing and Community Development (“HCD”) Housing Element Compliance Report. 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 Application stands in direct collision with Government Code section 65589.5, subd. (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 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 two things abundantly clear: (1) it anticipates a processing of any Builders Remedy application to a point of being reviewed -- and subject to adopted findings -- by the appropriate decision-maker, in this case, the City Planning Commission and/or the City Council not by staff at the planning department counter; and (2) it requires a far higher standard of proving compliance with the Housing Element Law than merely Brandy Forbes
December 9, 2022
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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 (Gov. Code, § 65589.3.) It cannot, by itself, meet the lofty standard of proof under the Builders Remedy.
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. (See, e.g., Building Industry Legal Defense Foundation v. City of San Juan Capistrano (1999) 72 Cal.App.4th 1410 [mandatory duty to process submitted applications].) NCD therefore demands that the City seriously consider the principles set forth in this letter and accept and process the Formal Application so that it is properly disposed for presentation to the decision-maker capable of making findings based on a written record. Because time is of the essence, NCD requires an affirmative representation, in writing to the undersigned, that the City will accept and process the Formal Application by no later than close-of-business Tuesday, December 13, 2022.
If we do not receive such an affirmative response by that date, NCD will be compelled to invoke further administrative and legal remedies including, but not limited to, an administrative appeal of Staff’s actions pursuant to Chapter 4 of the City of Redondo Beach Municipal Code and/or filing a petition for writ of mandamus pursuant to Code of Civil Procedure section 1085.
If you have any questions about this letter, please do not hesitate to call me.
Very truly yours,
Michael W. Shonafelt
MWS:mws
cc:
Leo Pustilnikov (email)
Brandon Straus (email)