April 12, 2024
City of San Marino
Re: Required Notice under Government Code Section 65009 By email: [email protected]; [email protected]; [email protected]; [email protected];
[email protected]; [email protected]
Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Dear San Marino City Council, City Manager, Planning Department, and City Attorney:
The California Housing Defense Fund (“CalHDF”) writes to inform the City that the Housing Element to its General Plan, adopted on February 9, 2022, fails to comply with state law on numerous points. These failures are detailed below. Unless the City immediately and fully corrects them, CalHDF intends to sue the City. This letter serves as the notice required by Government Code section 65009.
1 I. The City Does Not Adequately Review the Failures of Its Previous Housing Element
Pursuant to Gov. Code § 65588, subds. (a) and (b), the City is required to review its previous housing elements and adjust the programs in its current cycle housing element to reflect the results of this review. The City’s review of its previous housing element is inadequate.
The Housing Elements needs to quantify the results of the prior cycle’s programs. For example, the Housing Element doesn’t report how many second units were created during 1 “A cause of action brought pursuant to this subdivision shall not be maintained until 60 days have expired following notice to the city or clerk of the board of supervisors by the party bringing the cause of action, or his or her representative, specifying the deficiencies of the general plan, specific plan, zoning ordinance, or other action described in subparagraph (B) of paragraph (1). A cause of action brought pursuant to this subdivision shall accrue 60 days after notice is filed or the legislative body takes a final action in response to the notice, whichever occurs first.” Gov. Code § 65009, subd. (d)(3)(A).
360 Grand Ave #323, Oakland 94610
www.calhdf.org
the prior planning period, though this should be an easily obtainable figure. Knowing exactly how many second units were created will inform the current Housing Element’s programs.
The previous housing element also insufficiently analyzed the housing needs of special needs populations, including the disabled, seniors, large households, farmworkers, homeless, and female-headed households.
On page 23 the element simply states that Program 1.5 (Encourage the use of second units for senior housing and housing for persons with disabilities (including persons with developmental disabilities)) was “Achieved and being revised in new 6th Cycle Programs 1.3 and 1.4.” There is no further analysis or quantification of the results of the previous planning cycle for this program. Similarly, Program 1.7 (Continue community outreach and education regarding the development process) was “Achieved and expanded in new 6th Cycle Program
1.4 …” without explanation of how it was achieved.
Program 2.3 (Continue to implement the Community Development Block Grant (CDBG) program. Target limited resources to extremely low-income households and persons with disabilities.) has results listed as “Achieved but at a lower rate than projected. Will continue the program into the 6th Cycle.” It is unclear what the “rate” even refers to, or what the projections were.
There are many other such examples. To comply with state law, the housing element must be revised to comply with § 65588, subd. (a) and (b).
II. The City Fails to Analyze Governmental Constraints
The Housing Element Law mandates that the City’s Housing Element analyze governmental constraints on housing development. (Gov. Code § 65583, subds. (a)(5), (a)(6).) The current Housing Element does not do this in enough depth to satisfy the law. This is particularly troubling in light of the absence of multi-family housing options in San Marino.
Gov. Code § 65583 subd. (a)(5), as detailed below, requires the City to analyze governmental constraints on the development of housing for all income levels and for persons with disabilities:
An analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the types of housing identified in paragraph (1) of subdivision (c), and for persons with disabilities as identified in the analysis pursuant to paragraph (7), including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, local processing and permit procedures, and any locally adopted ordinances that directly impact the cost and supply of residential development. The analysis shall also demonstrate local efforts to remove 2 of 21
governmental constraints that hinder the locality from meeting its share of the regional housing need in accordance with Section 65584 and from meeting the need for housing for persons with disabilities, supportive housing, transitional housing, and emergency shelters identified pursuant to paragraph (7).
Furthermore, pursuant to Gov. Code § 65583, subd. (c)(3), the Housing Element must not only analyze constraints on housing for persons with disabilities but also remove those constraints:
Address and, where appropriate and legally possible, remove governmental and nongovernmental constraints to the maintenance, improvement, and development of housing, including housing for all income levels and housing for persons with disabilities. The program shall remove constraints to, and provide reasonable accommodations for housing designed for, intended for occupancy by, or with supportive services for, persons with disabilities. Transitional housing and supportive housing shall be considered a residential use of property and shall be subject only to those restrictions that apply to other residential dwellings of the same type in the same zone. Supportive housing, as defined in Section 65650, shall be a use by right in all zones where multifamily and mixed uses are permitted, as provided in Article 11 (commencing with Section 65650).
While the City has done some analysis, it does not go into how different governmental constraints affect housing at different income levels, or housing for persons with disabilities. And it does not adequately address how the City will remove such constraints.
Furthermore, the statute requires the City to specifically analyze constraints on the types of housing identified by Gov. Code § 65583, subd. (c)(1), including “... multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.” The City fails to adequately conduct such an analysis. The City does acknowledge that "the RHNA cannot be accommodated on existing sites with appropriate zoning, San Marino has a ‘RHNA shortfall’ and the City must rezone adequate new sites to meet its regional need and to meet the requirements of Government Code Section 65583 c. 1, which requires zoning for all types of residential uses including multi-family and manufactured homes.” (Page 18) And on page 74 of the background report: “There are currently no residential designations in the City which permit the density of development that will accommodate multi-family housing that might be affordable to Very Low and Low-income households and rezoning to allow the City’s default density of 20 units per acre will be required.” However, the City fails to analyze how other governmental constraints will constrain the development of housing as required by § 65583 subd. (a)(5), as discussed below. 3 of 21
Parking
While the Housing Element (page 75) states that “As zoning changes are made to allow more residential units in commercial areas and to allow multi-family housing, new parking requirements will need to be adopted consistent with state laws,” the Housing Element does not state what those parking requirements will be, nor how the new parking requirements will reflect an analysis of how existing rules constrain housing production. The current zoning requires two parking space for homes of 1-4 bedrooms, and in the C-1 zone, where 2/3rds of the rezoning sites are located, the “parking requirements will be determined by the Planning Commission, based upon either the requirements for the most comparable use specified in the Zoning Code, or upon a special study of parking requirements for that use.” (page 75)
The Housing Element also states on page 75,
Parking requirements in San Marino are typical for a city of its size and character, as shown in Table 20. The number of parking spaces required for a single-family unit is related to number [sic] of bedrooms. These characteristics do not constrain the development of housing directly, although a greater amount of acreage is required for meeting parking requirements as the number of bedrooms increase.
The Housing Element fails to analyze how its parking requirements constrain the development of housing, instead simply stating that parking requirements are not a constraint.
Height
Beyond the assumption of two story development on page 44, and Table 19 that lists allowable heights for single family homes, the Housing Element fails to analyze whether height limits constrain the development of housing. Height limits directly limit the number of units on a parcel, and can also increase construction costs by forcing parking to be underground. The Housing Element must therefore analyze how height limits would constrain development of its RHNA. The City should then add programs to address the findings of a full analysis of height limits as a constraint.
Setbacks
The Housing Element fails to analyze how the setbacks required by the City’s zoning code restrain development. Table 19 on pages 74-75 list the setbacks required by each zoning district, but there is no analysis of how these setbacks might affect the development of housing. For instance, the C-1 district requires a front setback of 25 feet, a side setback of 18 feet for multistory buildings, and a rear setback of 20 feet. The C-1 district is particularly relevant, as 2/3rds of the sites slated for rezoning, listed in Tables 13 and 15, are zoned C-1. 4 of 21
III. The City Fails to Analyze Non-Governmental Constraints Gov. Code § 65583, subd. (a)(6) requires the following:
(6) An analysis of potential and actual nongovernmental constraints upon the maintenance, improvement, or development of housing for all income levels, including the availability of financing, the price of land, the cost of construction, the requests to develop housing at densities below those anticipated in the analysis required by subdivision (c) of Section 65583.2, and the length of time between receiving approval for a housing development and submittal of an application for building permits for that housing development that hinder the construction of a locality’s share of the regional housing need in accordance with Section 65584. The analysis shall also demonstrate local efforts to remove nongovernmental constraints that create a gap between the locality’s planning for the development of housing for all income levels and the construction of that housing.
The Housing Element fails to specifically analyze non-governmental constraints on housing at different income levels and on housing for disabled persons. As stated in the statute above, the analysis must demonstrate local efforts to remove nongovernmental constraints that create a gap between housing planning and housing construction.
For land costs and construction costs, the housing element fails to adequately analyze the origins of these constraints and also fails to demonstrate local efforts to remove constraints, instead stating that they are outside the City’s control. From page 70, “Land costs in San Marino are a significant constraint to the development of housing; this is a factor that is outside of the City’s control.” From page 74, “The construction cost of housing affects the affordability of new housing and is a significant constraint to housing in San Marino that is outside of the City’s control.”
However, it is not true that these non-governmental constraints are outside the City’s control. For land cost, the Housing Element even states this during the governmental constraints section. From page 74:
Density is a critical factor in the development of affordable housing. Maintaining low densities typically increases housing costs per unit, while higher densities lower the per unit land cost and. [sic] This situation is amplified in San Marino… the City’s founding vision of San Marino as a high quality, low density residential community, together with the fact that it was essentially built out by 1970, has helped to drive up the land costs and results in a market cost for housing in the City that is well beyond the reach of median- or moderate-income households …
In this single paragraph the City states outright that its land use regulations created the very land cost problem that it previously stated was out of the City’s control. 5 of 21
Similarly, regarding construction costs, it is well documented that allowing modular (i.e. factory-built) housing, which the City must allow pursuant to Gov. Code § 65583, subd. (c)(1), can reduce construction costs by 20%.
2 However, this is not acknowledged in the Housing
Element.
Additionally, as stated above, Gov. Code § 65583, subd. (a)(6) requires the Housing Element to report requests to develop at densities below those required by the analysis in Gov. Code § 65583.2, subd.(c), and also the typical time elapsed between receiving approval for a development and applying for a building permit. The Housing Element reported neither.
IV. The City Fails to Commit to Implementation
Gov. Code § 65583, subd. (c) requires the following:
A program that sets forth a schedule of actions during the planning period, each with a timeline for implementation, that may recognize that certain programs are ongoing, such that there will be beneficial impacts of the programs within the planning period, that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the housing element through the administration of land use and development controls, the provision of regulatory concessions and incentives, the utilization of appropriate federal and state financing and subsidy programs when available … However, the Housing Element’s language fails to make clear that the City will take actions and that it intends to implement the policies contained in the Housing Element. Instead, the City states that it will “consider” a variety of policies without stating clearly that they will undertake to implement the policies, as the law requires. Below are examples (emphasis add throughout)
● Program 1.2 (page 29): “Consider adoption of a program to financially assist low-income property owners in the development of junior attached accessory dwelling units …”
● Program 1.3 (Page 29): “If the City is not meeting its fair share objectives for ADUs by 2024, consider the following actions …”
● Program 1.6 (page 31): “Within three years from the date of adoption of the Housing Element, evaluate the City Code as it relates to residential and live-work development in the C-1 Zone. Consideration shall be given to the following changes …”
● Program 1.7 (page 31): “Consider adoption of a housing overlay zone …” 2 J.K. Dineen, “Modular homes cost less and are used all over California. Why not in San Francisco?” San Francisco Chronicle (September 26, 2022)
https://www.sfchronicle.com/bayarea/article/modular-homes-san-francisco-17463783.php 6 of 21
● Program 1.9 (page 32): “Consider adopting an additional City density bonus program that is at least as permissive as the state program …” ● Program 2.6 (page 37): “Consider adopting the conservation measures in the Energy Action Plan …”
● Program 2.7 (page 37): “Explore use of the housing land trust model …” ● Program 2.8 (page 37): “Explore the nature of the prolonged home vacancies within the City. If appropriate, consider adoption of an annual “vacancy tax” on vacant homes …”
● Program 3.4 (page 39): “Consider amending the Zoning Code to address the provision of single-room occupancy housing as a conditionally permitted use in the C-1 Zone.”
● Program 3.5 (page 39): “Consider adoption of a Universal Design program …” ● Table 13 (page 55): “Sites to Consider for Rezone to Default Density of 20 units/acre”
Perhaps most troubling is the footnote on page 63, which adds the following disclaimer to Table 16, which sums the number of potential units that could be generated from rezonings (emphasis added):
Table 16 reflects maximum potential units and is intended to demonstrate how San Marino could meet its regional housing need through a combination of Rezonings and adoption of the Programs outlined in the Housing Element. Itis notintended to committhe City to adopting Programs and Rezonings to allow all units that are reflected above.
In other words, the City is refusing to commit to any of the rezonings required for its RHNA.
The law requires the City to establish a schedule of actions, the officials responsible for those actions, and a timeline of implementation so that the programs will have a beneficial impact within the planning period. (Gov. Code § 65583, subd. (c).) The City must also ensure – which it does not currently do – that its programs slated for implementation will address issues flagged in the Constraints Analysis portion of the Housing Element (for both governmental and non-governmental constraints). The City’s Housing Element, as demonstrated by the examples above, does not fulfill these requirements.
CalHDF also notes that Program 1.4 is slated to be implemented starting in 2022. Given that it is now 2024, the City should revise the anticipated timeline for this program. It should also ensure that the implementation timelines for its programs more generally are realistic given the delays in finalizing its Housing Element, and, more basically, that all programs include an explicit implementation timeline. Program 1.2, for example, includes no timeline beyond a commitment to annual monitoring and reporting – notwithstanding its inclusion 7 of 21
of potential specific policy changes that would have to be implemented on a specific date and cannot be implemented through mere monitoring and reporting.
V. The Proposed Sites Inventory and Rezoning Program Falls Short of the Legal Requirements
The City’s Housing Element must provide an inventory of sites where housing is likely to be built in the upcoming cycle. (Gov. Code § 65583, subd. (a)(3).) This inventory must satisfy certain requirements. (See Gov. Code §§ 65583.1, 65583.2.) The inventory in the City’s current Housing Element does not do this.
Constraint Mitigation
For development regulations, including parking minimums, height limits, and setback requirements, the housing element simply does not address how these constraints will affect development. Rather, the Housing Element’s analysis simply assumes development capacity of 85 percent of gross area, without explanation. Furthermore, the Housing Element assumes that buildout will be similar to neighboring jurisdictions, without undertaking a comparison of how the City’s specific zoning code would affect buildout.
The City’s programs must reflect the constraints analysis to a greater degree. Pursuant to Gov. Code § 65583, subd. (a)(5), the analysis must demonstrate local efforts to remove constraints:
The analysis shall also demonstrate local efforts to remove governmental constraints that hinder the locality from meeting its share of the regional housing need in accordance with Section 65584 and from meeting the need for housing for persons with disabilities, supportive housing, transitional housing, and emergency shelters identified pursuant to paragraph (7).
Given that the City’s constraints analysis is inadequate and must be augmented, so must the City's programs.
Small sites
Pursuant to Gov. Code § 65583.2, subd. (c)(2)(A), sites smaller than one half acre cannot be designated for lower income households unless the Housing Element demonstrates either a track record of developing such sites for lower-income households or other evidence that such sites are adequate for lower-income households. Furthermore, each site for lower-income households must accommodate at least 16 units (id. at subd. (h)).
The Housing Element states that each lower-income site will allow at least 16 units: “Each site selected for rezoning for the remaining lower-income RHNA of 77 units will have capacity to accommodate at least 16 units,” (page 52) but Table 13 and Table 15 contradict this statement.
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Table 13 lists certain sites with developer interest that the City will “consider” rezoning to 20 units/acre, as well as the assumed affordability levels. The table specifies that 810-860 Huntington Drive, a site made up of three parcels, only has a realistic site capacity of 10 units, yet the Housing Element identifies the site for low-income households. The city cannot include this site for low-income households without changing the proposed zoning and development standards (not just “considering” changing them) to allow for more than 16 units.
It is unclear, moreover, exactly what the Housing Element proposes for 810 Huntington Drive, as Table 11 identifies it for two units of moderate/above moderate income housing.
However, it is impossible for the public to know what the City is planning for this site, as there is no comprehensive site inventory in the Housing Element.
According to the HCD letter dated April 11, 2022, the City did submit an electronic site inventory to HCD (albeit incorrectly formatted, according to the letter), but that site inventory is not reproduced in the publicly available Housing Element. The City should include a map of its sites and a comprehensive site list, following HCD’s format, in its publicly accessible Housing Element in order to substantially fulfill requirements of Gov.
Code § 65585, subd. (b), given that the sites inventory is an integral part of the Housing Element and should be available for the public to review.
Table 15 lists sites under consideration for a separate rezoning program for a housing overlay. Of those six sites, only two would have a realistic capacity of at least 16 units if rezoned. The city cannot include these sites for low-income households without changing the proposed zoning and development standards to allow for more than 16 units on each site.
Inadequate rezoning program - height limits, setbacks, and parking The Housing Element does not state what the parking requirements will be for the rezoning sites, nor does it take into account how the existing discretionary process for parking requirements in the C-1 district might prevent or discourage development.
While it does not state what the parking requirements or height limits will be for its housing overlay, the Housing Element assumes two floors of housing with “tuck-under” (underground) parking during its site specific analysis (page 44). The Housing Element justifies this as follows: “Requirements for on-site parking can be met with tuck-under parking and structures; because land values are so high in San Marino, this type of construction is used to provide sufficient parking to larger projects.” (page 43) The Housing Element fails to take into account how the added expense of “tuck-under” and structured parking would prevent the development of housing for low and very-low income 9 of 21
households. Instead, the City points to high land values as making such parking feasible, (page 44) failing to analyze whether its assumptions about structured/underground parking might constrain the development of affordable housing.
Regarding setbacks, while the Housing Element states on page 43, “Capacities must be adjusted to reflect the realistic potential for development and must consider the impact of environmental considerations as well as development controls like setbacks, parking requirements and height limitations,” the Housing Element doesn’t address the City’s setback requirements into its rezoning program.
Inadequate rezoning program - density
Because the city cannot accommodate its RHNA on sites already zoned for residential use (Housing Element page 51), state law requires that the city include a rezoning program that will facilitate development on sites that lack the appropriate zoning. To accommodate the low/very-low income portion of its RHNA, the rezoning program must allow for sites that are zoned for a minimum of 20 units per acre. (Gov. Code § 65583.2, subd. (h)) However, the Housing Element states many times that the rezoning program, a housing overlay, will allow 16-24 units per acre, not a minimum of 20 units per acre.
allow either the underlying land use; multifamily housing at a density minimum of 16 to a maximum of 24 units per acre; or both.”
will include changes to the zoning code; a program to allow duplexes and triplexes in single-family zones; the rezoning of sites to multifamily, 20 units per acre; rezoning to add the Housing Overlay with densities of 16-24 units per acre…
acre) to multiple sites meeting location criteria for proximity to transit and jobs. Sites to be considered include the 8-acre Southwestern Academy, a 1-acre portion of the Huntington Library site, two sites on church properties, and two sites of over one acre each along Huntington Drive (total of at least 81 units realistic capacity).”
Code and will allow housing projects at a density of 16 to 24 units per acre…”
types, tenures, and densities to address the City’s identified housing needs, including housing for seniors; the local workforce, including teachers, small households, and 10 of 21
first-time homebuyers. Allowable densities would range from 16 to 24 units per acre…”
Inadequate rezoning program - by right development
Rezonings to make up for RHNA shortfall for low-income households must allow by-right development if at least 20% of the units of the proposed development will be affordable to lower-income households. (Gov. Code § 65583.2, subd. (h).) However, the City’s housing element is inconsistent in its discussion of whether such rezonings will actually allow by-right development where 20% of units are affordable.
Program 1.6 (page 31) states, in reference to zoning changes to allow residential in C-1 districts, “Allow these developments by-right if at least 20% of project units are provided as affordable to low-income households and design & development standards are met.”
acre as a use by-right if at least 20% of project units are provided as affordable.”
developments by-right if at least 20% are affordable, subject to objective design & development standards…”
both a density bonus and for by-right processing.”
However, this is contradicted by specific program text (emphasis added):
Program 1.7 on page 32 states, in reference to the proposed housing overlay zone, “For projects which comply with the SB 35 Guidelines, permit owner-occupied and leased multifamily uses by-right for developments in which 20 percent or more of the units are affordable to lower income households.” And Program 1.11 on page 33 states, “For projects which comply with the SB 35 Guidelines, permit owner-occupied and leased multifamily uses by-right for developments in which 20 percent or more of the units are affordable to lower income households.”
SB 35 imposes a variety of specific conditions on projects and does not create a by-right process for all projects with at least 20% affordable (Gov Code §65913.4), and therefore the Housing Element does not plan for generally allowing by-right development.
Inadequate rezoning program - use of overlay
The Housing Element states that the overlay zone would not supplant the base zoning:
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underlying land use; multifamily housing at a density minimum of 16 to a maximum of 24 units per acre; or both.”
This is a problem: the California Court of Appeal, 5th District, recently held that a zoning overlay does not satisfy the 20 unit per acre minimum density requirement for low-income sites in Government Code section 65583.2(h). (See Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 244.) If the base zoning permits a density below what the Housing Element Law requires – as it does here – an overlay zone will not bring the City into compliance. (Id.) Inadequate Rezoning Program - single-room occupancy
The Housing Element states that the City did not update its Zoning Code during the previous planning cycle to allow single-room occupancy (SRO) uses, stating it was “Not specifically achieved but deemed possible under existing allowances for residential uses in the C-1.” However, C-1 zoning requires a conditional use permit for residential development, requires 5,000 square feet of lot area per family, and does not list SRO as an allowable use.
Program 3.4 suggests allowing SRO uses in C-1, but is noncommittal (page 39): “Consider amending the Zoning Code to address the provision of single-room occupancy housing as a conditionally permitted use in the C-1 Zone.”
State law requires that the City facilitate the provision SRO uses. Gov. Code § 65583, subd. (c)(1) states (emphasis added), “Sites shall be identified as needed to affirmatively further fair housing and to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.” By only stating that the City will “consider” allowing SRO uses, the Housing Element fails to satisfy state law.
Suitability of Non-Vacant Sites
The Housing Element includes a number of sites that the City states it will rezone to allow multifamily use, including the Huntington Library, Art Collections, and Botanic Gardens as well as Southwestern Academy.
the private Southwestern Academy campus; and a portion of the Huntington property.”
These are non-vacant sites. In order for the City to include such non-vacant sites in its site inventory, state law (Gov. Code § 65583.2 subd. (g)) requires the following (emphasis added):
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(1) For sites [in the site inventory, the housing element] shall specify the additional development potential for each site within the planning period and shall provide an explanation of the methodology used to determine the development potential. The methodology shall consider factors including the extentto which existing uses may constitute an impedimentto additional residential development, the city’s or county’s past experience with converting existing uses to higher density residential development, the current market demand for the existing use, an analysis of any existing leases or other contracts that would perpetuate the existing use or prevent redevelopment of the site for additional residential development, development trends, market conditions, and regulatory or other incentives or standards to encourage additional residential development on these sites.
The City made no such findings upon adoption of its housing element (See Council Resolution No. R-22-06). Furthermore, the Housing Element does not analyze whether or not the existing use constitutes an impediment to additional residential development.
CalHDF reminds the City that this analysis must be site-specific, and a failure to provide such site-specific analysis renders the Housing Element non-compliant. (Californians for Homeownership v. City of Beverly Hills, Case No. 23STCP00143, Los Angeles County Superior Court, Ruling Issued Sep. 12, 2023, pp. 8-9 [attached for reference] [finding housing element non-compliant because it neglected to engage in site-specific analysis as required by section 65583.2, subdivision (g)(1)].) The analysis must also consider specific, statutorily-enumerated factors, including existing leases on the sites and regulatory standards and incentives for development on the sites. (Ibid.) In the case of the Huntington Library, Art Collections, and Botanic Gardens, Table 15 on page 59 identifies two acres of the site as appropriate for housing and also states “workforce housing needed.” Section 3.5.3 on page 57 also discusses the suitability of the site for housing for workers. However, the Housing Element does not specify which two acres of the 207 total acres will be used for housing, nor does it cite any evidence that the owner has expressed interest or intent in redevelopment for workforce housing, nor does it cite any evidence that the existing use of such two acres will be discontinued during the planning period. Adding to the confusion, Section 3.4.1 on page 53 states that only one acre of the Huntington Library, Art Collections, and Botanic Gardens site will be rezoned to facilitate multifamily development.
Southwestern Academy is identified for its redevelopment potential.
construction of housing for teachers as well as the potential for conversion of existing dorm rooms into full units …”
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Again, no evidence is cited that the owner has expressed interest in redevelopment of the site, or that the current use is likely to be discontinued during the planning period.
The Housing Element also includes church sites, particularly parking lots. The City has very large parking requirements for church use, specifically one off-street space per 35 gross square feet. With 300-350 square feet per space being typical, a church requires approximately ten times as much space for parking as it contains for religious purposes.
For the proposed housing overlay zone, the Housing Element assumes that the underlying land use will continue:
and only the underutilized portion of the site would be used to provide housing, at an average density of 20 units per acre.”
Therefore, a church site would have to be of adequate size to accommodate both enough parking to be zoning compliant for the church use in addition to enough land to accommodate the residential structure and residential accessory parking.
The Congregational Church at 2560 Huntington Drive is identified in Table 15 for eight units of very low-income housing. The church site is already non-conforming with respect to parking. With dimensions approximately 150 feet by 100 feet, the church has a floorplate of approximately 15,000 square feet. For churches, San Marino’s zoning code requires one off-street parking spot per 35 gross square feet. This means that the church requires approximately 428 parking spaces. There are 29 parking spots in the church’s off street parking lot. The zoning code would therefore not allow this church to rededicate its parking lot to residential use, given that today it is nonconforming by supplying less than 10% of the parking required by the zoning code. The Housing Element does not take this into account.
Furthermore, the Housing Element does not cite any evidence that the church has expressed interest in redevelopment. For instance, the church could conceivably have plans to disestablish, making the land available for multifamily, or to move to a different building.
No such communication or evidence was cited.
Similarly, the church site at 2975 Huntington Dr and 1155 S. San Gabriel Blvd is identified for 12 units of extremely low-income housing and three units of moderate income housing.
Other than a note of “long term vacancy issues” in the office building at 2975 Huntington Dr, there is no other discussion of whether there is any interest on the part of the landowners to develop housing on site, nor is there an analysis of whether the current uses are likely to discontinue. Of note, there are currently two churches on site (St Edmund’s Episcopal Church and the Holy Byzantine Catholic Orthodox Church), a daycare center, and an office building. As with the Congregational Church above, the Housing Element did not include any 14 of 21
analysis as to whether the churches are non-conforming with respect to zoning, and therefore whether or not redevelopment would be possible, even with a housing overlay.
For the other private sites, the only evidence actually cited is a single sentence on page 54, “the sites in Table 13 below are included as having realistic redevelopment potential because of interest previously expressed by developers in building multi-family housing on these sites.” The Housing Element does not include copies of any such communication as evidence. This is not sufficient for compliance with state law. (Gov. Code § 65583.2 subd. (g).) Missing Middle Program
The City proposes for 150 units of its 397-unit RHNA to be developed as a part of a potential “missing-middle” zoning program, Program 1.8. However, the Housing Element’s discussion of the program violates state law in two ways: it does not list the specific sites in its site inventory; and it does not analyze and make appropriate findings that the current uses will discontinue.
The program, as described in the Housing Element:
new “missing middle” housing units suitable for households with very low to middle incomes, subject to adopted design and development standards. Missing Middle projects containing four or more units would be subject to Use Permit.” Of note, the program description on page 32 varies from the program as described in the RHNA shortfall table 12. The program description states that it will create capacity for 250 units for very low to middle income households, but Table 12, RHNA shortfall, states that it will create capacity for 150 moderate and above moderate income households.
Furthermore, it is unclear how the program would substantially differ from what is currently allowed under state law for ADU development, which allows for one ADU and one JADU per parcel in addition to a single family home (Gov. Code § 65852.2), as the below excerpt demonstrates:
three dwelling units (the main dwelling, an ADU and a JADU), allowing duplexes and triplexes does not increase allowable densities within designated single-family neighborhoods. Instead, this flexibility will allow badly needed smaller, more affordable units to be created through interior remodeling of homes to add private living spaces for families and renters without changing a home’s appearance from the street.”
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In fact, the program may be actually less attractive than ADU development to interested landowners. For one, the program appears to restrict development to the interior of extant homes, whereas state law allows for both conversion of interior space to ADU/JADUs and for detached, new construction of ADUs:
City will adopt a program allowing duplexes and triplexes within existing single-family homes in the single-family neighborhoods near jobs and transit, where those neighborhoods do not fall within a historic district.”
into duplexes or triplexes in neighborhoods near jobs and transit, and to consider other missing middle housing solutions.”
And the possibility of developing four or more units, which goes beyond what state law allows for ADUs, would require discretionary approval, as cited above on page 32. The Housing Element identifies discretionary approval as a barrier to development, given that community resistance can have a major impact during discretionary processes (emphasis added):
development. Community members may pressure the Planning Commission and City Council to deny projects, and in some cases may also threaten legal action. This environment increases risk for developers and may discourage them from bringing development proposals to the City. It also means that development proposals, especially multifamily residential development or development at a higher density than currently exists, will likely require more time and resources in the development process to address community concerns. Constraints from community resistance in discretionary decision-making and design review processes make it even more important for the City to adopt objective design and development standards for residential and live-work projects.
The City should eliminate discretionary review for larger missing middle developments to ensure this constraint does not pose a barrier to the program’s success.
Unrealistic Assumptions about ADU Development
The Housing Element relies on Accessory Dwelling Units (“ADUs”) for the bulk of its low-income housing quota. Its assumptions, however, are too rosy as to the number of ADUs that will be built. The Housing Element (page 41) predicts that 221 ADUs will be constructed over the planning cycle – an average of more than 30 per year. This number is not reflected by recent ADU construction levels in the City. According to HCD’s letter dated April 12, 2022, the City has averaged only 9 ADUs per year since 2018. The Housing Element cites the 37 16 of 21
ADUs permitted in 2020 as evidence that the City’s recent changes to its ADU ordinance as evidence that ADU development will be sustained over time, but this is at variance with HCD Guidance - HCD’s Housing Element Site Inventory Guidebook, dated June 10, 2020, states that cities may base ADU projections on the number of ADUs and JADUs generated in the prior planning period, and cities are to use trends in ADU construction since January 2018 to estimate new production given changes in state ADU laws. This guidance does not allow cities to base projections on a single year’s production.
VI. The City fails to address the housing needs of the disabled Govt. Code § 65583, subd. (a)(7) requires the Housing Element to provide, “An analysis of any special housing needs, such as those of the elderly; persons with disabilities, including a developmental disability…” And, as discussed above, Gov. Code § 65583, subd. (a)(5) requires the Housing Element to remove governmental constraints on housing for disabled persons.
While page 10 of the Housing Element discusses the number of disabled persons in San Marino and the general categories of disabilities, it does not analyze the housing needs of the disabled. Rather, the Housing Element lists some resources available for the disabled in Program 4.3.1 Housing Resources. The Housing Element does not, for instance, analyze whether disabled persons in the community might need integrated supportive housing.
The Housing Element’s primary strategy for housing the disabled seems to be ADUs and JADUs, in addition to voluntary universal design standards:
and ADUs and JADUs, two forms of housing that will best assist the City to meet its identified housing needs for aging and disabled households.” Additionally, the City is relying on discretionary exceptions to zoning to accommodate the disabled. Program 3.1 from page 38 (emphasis added):
“The City shall continue implementation of the reasonable accommodation ordinance consistent with Government Code section 8899.50 by administering its housing and community development programs in a manner to affirmatively further fair housing access. This includes allowing for exceptions to the zoning code when necessary to provide an equal opportunity for housing. Monitor the effectiveness of this ordinance; identify and address any constraints to accommodating the housing needs of persons with disabilities.
However, exceptions to zoning would involve a variance or a zoning change, inherently discretionary and public processes. As discussed above, the Housing Element elsewhere 17 of 21
acknowledges the challenges posed by community resistance as expressed during discretionary review. The Housing Element fails to analyze whether such exceptions to zoning, and the accompanying constraints, are meeting the housing needs of the disabled.
The City must revise the Housing Element to include such analysis and also must revise its programs to remove constraints on housing for the disabled, as required by Gov. Code § 65583, subd. (a)(5).
Furthermore, as discussed above in the constraints section, the City must conduct a more thorough examination of the ways government policies and market factors constrain the production and maintenance of housing for persons with disabilities. It must then update and augment the current proposed programs around housing for persons with disabilities in light of this more robust analysis.
VII. The City Fails to Accommodate Extremely Low-Income Households Gov. Code § 65583, subd. (c)(2) requires that the Housing Element “Assist in the development of adequate housing to meet the needs of extremely low, very low, low-, and moderate-income households.” The Housing Element relies on JADUs and several rezoning sites to accommodate extremely-low income (ELI) households. This is insufficient. Given that San Marino is a wealthy enclave, the Housing Element has not demonstrated why JADUs would be rented to ELI households, when they could just as easily be rented to wealthy relatives. To facilitate housing for ELI households, the City must make it more attractive for sites to be developed as deeply affordable housing or integrated supportive housing than as market-rate. To achieve this, the City could institute fee waivers, a density bonus, capital subsidies, or dedicate City land.
In terms of City Land, the City is currently proposing that the Stoneman site be used for mixed-income housing with 6 ELI units, 6 very-low income units, 8 moderate income units, and 8 above moderate income units. However, the Stoneman site (discussed on page 56 of the Housing Element) could accommodate many more than 28 units given that there are
1.66 acres available for development. Furthermore, the income mix proposed by the City does not match what is typically funded by HCD and the California Tax Credit Allocation Committee (CTCAC). To satisfy its obligations under state law, the City could consider disposing of the Stoneman site for 100% affordable housing, with a more robust portion of ELI units than is currently envisioned.
VIII. The Housing Element Does Not Affirmatively Further Fair Housing The City has a duty to affirmatively further fair housing (“AFFH”) in preparing its Housing Element. (See Gov. Code § 8899.50 and § 65583 (c)(5).) The Housing Element itself, moreover, must assess fair housing within the City. (Gov. Code § 65583, subd. (c)(10)(A).) The current 18 of 21
Housing Element falls short. While the Housing Element accurately shows that San Marino is an unusually privileged community, it denies that it has a problem with segregation, stating on page 16, ‘It is a well-integrated community.” Meanwhile, Table 26 indicates that the community is only 1.9% Black and only 6.3% Latino, though Los Angeles County is 8.1% Black and 48.6% Latino. There is a 48.5 percentage point difference in the combined Black and Latino populations of San Marino and LA County. In other words, San Marino is a highly privileged, White and Asian enclave in the middle of a county that is eight times more Black and Latino than San Marino itself.
While Goal 3 is “Ensure the accessibility to housing for all segments of society,” Policy 3.1 states which society the Housing Element is concerned with - existing City residents, not outsiders (emphasis added):
“Policy 3.1: Promote equal housing opportunity for all economic, racial, and social groups currently residing in the City”
The Housing Element does not aim to increase access to housing in the City for marginalized groups outside the City. Such programs might include more robust commitments to allowing and encouraging a broad variety of housing types, including and especially multi-family and affordable housing, as outlined elsewhere in this letter.
Also, the city’s current zoning code restricts single-family homes to use by “but one family” and prohibits “taking in of boarders who do not operate as or participate in a single housekeeping unit”, (San Marino municipal code § 23.02.01). On page 82, the Housing Element states, “This definition is inclusive of all types of households and does not serve to constrain housing for persons with disabilities.” However, this definition would seem to exclude a live-in caretaker for a disabled person, which is discriminatory against persons with disabilities.
Furthermore, the Housing Element Law requires the City to lay out its fair housing priorities and goals and establish the metrics it will use to gauge its progress towards those goals. (Gov.
Code, §§ 65583, subds. (c)(10)(A)(iv)-(v).) These metrics must be concrete and, crucially, quantifiable. (Id. at subd. (b)(1).) They must address the full sweep of fair housing concerns in the City, and state law additionally mandates that they set a specific maximum number of housing units that can be built, conserved, or rehabilitated over five years, broken out by income category. (Ibid.) The City lists its fair housing goals on pages 20 et seq. but does not establish metrics to measure progress on them. Nor does it set a maximum number of housing units that can feasibly be built in a five-year time period, broken out by income category and analyzed with a view to fair housing. (It does, on page 41, provide numbers for the rehabilitation and conservation of some types of housing units, but the assessed timeline is the full eight-year planning period, rather than the five years demanded by the fair housing sections of the Housing Element Law.) The City must correct these omissions, 19 of 21
revise its fair housing programs to guarantee progress towards fair housing goals, and commit to monitoring the concrete, quantified fair housing objectives it identifies.
Furthermore, the site inventory (discussed in greater detail earlier in this letter) must include analysis of how its sites interact with the City’s fair housing goals. (Gov. Code, §§ 65583, subds. (a)(3), (c)(1); 65583.2, subd. (c).) Currently, this is missing; it must be included before the City’s Housing Element can be found in substantial compliance.
Because of these shortcomings in the current draft Housing Element, the City has not yet met the statutory requirements for AFFH.
IX. To Achieve Compliance, the City Must Complete the Required Rezonings Section 65588, subd. (e)(4)(C)(i) states:
For the adoption of the sixth revision and each subsequent revision, a local government that does not adopt a housing element that the department has found to be in substantial compliance with this article within 120 days of the applicable deadline described in subparagraph (A) or (C) of paragraph (3) shall comply with subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583 and subdivision (c) of Section 65583.2 within one year of the statutory deadline to revise the housing element.
Section 65588, subdivision (e)(4)(C)(iii) states:
A jurisdiction that adopts a housing element more than one year after the statutory deadline described in subparagraph (A) or (C) of paragraph (3) shall not be found in substantial compliance with this article until it has completed the rezoning required by subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583 and subdivision (c) of Section 65583.2.
Thus, the statute mandates the jurisdiction "shall not be found in substantial compliance" until completing the rezoning. (ibid.)
As applied here, the City's statutory deadline to adopt a substantially compliant 6th cycle housing element was October 15, 2021. The City submitted its draft housing element to HCD on October 15, 2021. (AR 443.) Because the City failed to secure certification of its 6th cycle housing element within 120 days of its statutory deadline of October 15, 2021 (see AR 443-447), October 15, 2022 served as the City's deadline to complete its required rezoning. (Gov. Code § 65583, subd. (c)(1)(A).)
Pursuant to the plain language of section 65588, subdivision (e)(4)(C)(iii), the City "shall not be found" in substantial compliance with the Housing Element Law until the City completes its required rezonings.
20 of 21
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Overall, and throughout the Housing Element, the City must provide more than it has in the way of programs and policies to address problems identified in the analyses of barriers to housing development. These programs and policies must be specific, detailed, and well-tailored to erode or remove such barriers. (See Gov. Code § 65583, subd. (c).) Right now, the Housing Element commits the City to fewer and weaker actions than it should, or does not commit to anything beyond “considering” zoning changes.
The City should commit to doing more. In particular, CalHDF is concerned that the current Housing Element’s programs will not do enough to ensure the site inventory develops as promised. We are also concerned that the City has not outlined a strong enough pathway for creating housing accessible to more household types, especially low-, very low-, and extremely low-income families. The City’s history of building almost exclusively large, expensive single-family homes compounds these concerns. San Marino can and should do more to allow and encourage a variety of housing options – multi-family housing developments should be a major focus – and this entails better, more detailed policy commitments to create incentives for and remove barriers to such development.
CalHDF urges the City to take its legal obligations seriously. The problems presented here are major shortcomings, and the law demands they be addressed. If the City does not address them on its own, CalHDF will seek a writ of mandate from the courts.
CalHDF is a 501(c)3 non-profit corporation whose mission includes advocating for increased access to housing for Californians at all income levels, including low-income households.
You may learn more about CalHDF at www.calhdf.org.
Sincerely,
Dylan Casey
CalHDF Executive Director
James M. Lloyd
CalHDF Director of Planning and Investigations
21 of 21
• FILED
Superior Court of California
County of Los Angeles
Superior Court of California
County of Los Angeles
SEP 12 2023
David W. Slayton, Exeartive Officeritlerk of Court
CALIFORNIANS FOR
HOMEOWNERSHIP, INC.,
vs.
CITY OF BEVERLY HILLS,
Petitioner,
Respondent.
Case No. 23STCP00143
RULING ON VERIFIED FIRST
AMENDED PETITION FOR
WRIT OF MANDATE
Dept. 82 (Hon. Curtis A. Kin)
Petitioner Californians for Homeownership, Inc. petitions for a writ of mandate directing respondent City of Beverly Hills to adopt a revised housing element pursuant to Government Code§ 65754.
I. Factual Background
The State of California requires each city to have a "comprehensive, long-term general plan for the physical development" of the city. (Gov. Code§ 65300.)1 Each general plan must have a housing element.(§ 65302(c).) The housing element consists of 'standards and plans for housing sites in the municipality that 'shall endeavor to make adequate provision for the housing needs of all economic segments of the community.' [Citations.]" (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 444; see also § 65580 [legislative findings concerning housing element law].)
"A municipality must review its housing element for the appropriateness of its housing goals, objectives, and policies and must revise the housing element in accordance with a statutory schedule." (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 222, citing§ 65588(a), (b).) "The interval between the due dates for 1 All statutory references are to the Government Code, unless otherwise specified.
1 the revised housing element is referred to as a planning period or cycle, which usually is eight years." (Martinez, 90 Cal.App.5th at 222, citing§ 65588(e)(3), (f)(l).) "A revised housing element's assessment of needs must quantify the locality's existing and projected housing needs for all income levels, which includes the locality's proportionate share of regional housing needs for each income level." (Martinez, 90 Cal.App.5th at 223, citing § 65583(a)(l).) "The projected regional housing needs for a planning period are determined by the HCD [Department of Housing and Community Development] in consultation with regional 'councils of government."' (Martinez, 90 Cal.App.5th at 223, citing§§ 65584(a) & (b), 65584.01, 65588(e)(3).) "Based on the HCD's regional housing needs determination, each regional council of governments adopts a 'final regional housing need plan that allocates a share of the regional housing need' among the cities and counties within its region." (Martinez, 90 Cal.App.5th at 223, citing§ 65584(b).) For the 2021-2029 planning period, the City Council of respondent City of Beverly Hills ("City") adopted a housing element on October 12, 2021 and submitted it for review to HCD. (JR 776.) On January 14, 2022, HCD determined that the · housing element did not fully comply with the housing element law and provided necessary revisions. (JR 1309-16.)
On September 28, 2022, the City submitted a revised housing element to HCD. (JR 776.) On November 28, 2022, HCD determined that the revised housing element did not fully comply with the housing element law and provided necessary revisions. (JR 1318-24.)
On February 21, 2023, after having revised the September 2022 housing element, the City adopted the revision. (JR 5.) On February 21, 2023, petitioner • Californians for Homeownership, Inc., who monitors local compliance with the housing element law, sent a letter to the City asserting that the revised housing element was inadequate for reasons identified by HCD and petitioner. (JR 1584-85.) On May 12, 2023, HCD determined that the housing element does not substantially comply with housing element law. (RJN Ex. B.)
II. Procedural History
On January 18, 2023, petitioner filed a verified petition for writ of mandate.
On May 24, 2023, pursuant to stipulation, petitioner filed a verified first amended petitioner for writ of mandate.
On June 22, 2023, during the trial setting conference, the Court set the hearing on the instant petition for September 12, 2023.
On July 14, 2023, petitioner filed an opening brief. On August 15, 2023, respondent filed an opposition. On August 31, 2023, petitioner filed a reply. 2 III. Request for Judicial Notice
Petitioner's requests for judicial notice are ruled on as follows:
• Exhibit A (September 15, 2017 Assembly Floor Analysis of AB 1397 (2017- 2018 Session))- GRANTED (Evid. Code§ 452(c); Wood v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 742, 751, fn. 4)
• Exhibit B (May 12, 2023 Letter from HCD to City) - GRANTED (Evid. Code § 452(c))
• Exhibit C (Staff Report for June 22, 2023 Meeting of Beverly Hills Planning Commission) - DENIED
• Exhibit D (Minutes of June 22, 2023 Meeting of Beverly Hills Planning Commission) - DENIED
• Exhibit E (Resolution No. 1907 of Beverly Hills Planning Commission) - DENIED
• Exhibit F (2022 Form 10-K for Creative Media & Community Trust Corporation (Excerpts)) - DENIED
• Exhibit G (June 10, 2020 Memorandum of the California Department of Housing and Community Development, Entitled "Housing Element Site Inventory Guidebook")- GRANTED (Evid. Code§ 452(c))
• Exhibit H (City of Gardena's 2021-2029 Housing Element, Table C-1) - GRANTED (Evid. Code § 452(c))
With respect to denying the request for judicial notice of Exhibits C, D, E, and F, the Court notes these exhibits are extra-record evidence petitioner presents to demonstrate that certain sites listed in the sites inventory of the housing element are improperly included. For the reason stated in section V.C below, this is improper.
The exhibits are accordingly irrelevant. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 ["Although a court may judicially notice a variety of matters (Evid. Code, § 450 et seq.), only relevant material may be noticed"].) IV. Standard of Review
CCP § 1085(a) provides: "A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to 3 which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person."
"Any action brought by any interested party to review the conformity with the provisions of this article of any housing element or portion thereof or revision thereto shall be brought pursuant to Section 1085 of the Code of Civil Procedure; the court's review of compliance with the provisions of this article shall extend to whether the housing element or portion thereof or revision thereto substantially complies with the requirements of this article."(§ 65587(b); see also§ 65751.) Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute, as distinguished from mere technical imperfections of form." (Martinez, 90 Cal.App.5th at 237, internal citations omitted.) "[A] city's adoption of a housing element is a legislative enactment, something which is generally entitled to some deference." (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1191.) "If the municipality has substantially complied with statutory requirements, we will not interfere with its legislative action, unless that action was arbitrary, capricious, or entirely lacking in evidentiary support." (Ibid.) The challenging party has the burden to demonstrate that the housing element is inadequate. (Ibid.)
V. Analysis
A. This Dispute is Not Moot
As a preliminary matter, respondent asserts that the City anticipates adopting a revised housing element in November of this year to address concerns about the current housing element. (Wiener Deel. ,r 2.) However, there is no guarantee that a .revision will be completed by November or that the City will adopt a revision at that time, or at any time thereafter. The Court can only rule based on the current housing element. The instant petition is entitled to preference. (§ 65752.) Further, if the Court were to enter judgment in favor of petitioner, the housing element law provides deadlines for the City to address the deficiencies in the housing element and to submit the revision to HCD. (§ 65754(a).) If respondent were to appeal, the appeal would be given preference also. (§ 65752.) Accordingly, there is no reason to delay ruling on the merits of the operative first amended petition.
B. Whether Sites Inventory Meets Statutory Requirements
1. Realistic Development Capacity
The inventory in a housing element must "specify for each site the number of units that can realistically be accommodated on that site and whether the site is adequate to accommodate lower income housing, moderate-income housing, or above moderate-income housing." (§ 65583.2(c).) For a city that does not require a 4 minimum residential density, 2 the city "shall demonstrate how the number of units determined for [each] site ... will be accommodated." (§ 65583.2(c)(l).) As part of the calculation," [t]he number of units calculated ... shall be adjusted as necessary, based on the land use controls and site improvements requirement identified in paragraph (5) of subdivision (a) of Section 65583, the realistic development capacity for the site, typical densities of existing or approved residential developments at a similar affordability level in that jurisdiction, and on the current or planned availability and accessibility of sufficient water, sewer, and dry utilities." (§ 65583.2(c)(2).) An "assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs" shall include an "analysis of potential and actual governmental constraints upon the maintenance, improvement, or development of housing for all income levels ... including land use controls, building codes and their enforcement, site improvements, fees and other exactions required of developers, local processing and permit procedures, and any locally adopted ordinances that directly impact the cost and supply of residential development." (§ 65583(a)(5).)
To demonstrate that its inventory is adequate, respondent relies on a Mixed Use Overlay Zone ("Overlay Zone") adopted by ordinance on November 17, 2020, where the maximum residential density within the zone was increased from O in commercial areas to 79.2 units/acre. (JR 200, 209.) The Overlay Zone spans the length of the City from east to west and partially north to south, along its largest commercial corridors, including Wilshire Boulevard, Robertson Boulevard, Olympic Boulevard, South Doheny Drive, and South Beverly Drive. (JR 125; see also JR 213 [map of Overlay Zone].) In the housing element, the City describes the purported benefits of the Overlay Zone: "This wide-scale rezoning allows for the creation or conversion of non-residential space into residential units, and therefore will create all net new housing, since it does not involve the displacernent of any existing occupied housing/residents." (JR 125.)
Respondent argues that the maximum residential density exceeds the minimum 30 units per acre that is statutorily deemed appropriate to accommodate housing for lower income individuals. (§ 65583.2(c)(3)(B)(iv).) Respondent also argues that existing commercial buildings in the Overlay Zone may obtain a permit to convert to a mixed-use building and obtain relief from having to comply with standards concerning parking requirements, loading facilities, outdoor living space, commercial-residential transitional setbacks, or height limits if compliance is physically infeasible. (JR 1636; see also Chen Deel. Ex. G [Beverly Hills Municipal Code ("BMMC") § 10-3-1888].) The vacancy rates for commercial buildings also purportedly create an incentive for commercial building owners to convert their buildings to mixed-use projects. (JR 201.)
2 It is undisputed Beverly Hills does not mandate a minimum residential density.
5 For commercial properties listed in the sites inventory of the housing element that were designated for conversion or indicated as having conversion potential (JR 229-34), to calculate the total number of units on the site, the City multiplied the total parcel size by the maximum allowable residential density.3 However, the total parcel size listed in the sites inventory refers to land area, not the square footage of ·the existing building that can accommodate residential units. Contrary to respondent's contention, the sites inventory does not account for floor area capacity; the sites inventory lists the height limit of the building, not the number of stories to be converted to residential use. (See, e.g., JR 229 [column name is "Height Limit (stories)," 233 [8500 Wilshire Blvd. described as "8 story building- conversion," but height limit is 3 stories].) As a result, for buildings to be converted to mixed use, the housing element does not demonstrate how the number of units indicated in the sites inventory will be accommodated, as required by section 65583.2(c)(l).
Moreover, as petitioner points out in the reply, most of the sites in the City's sites inventory are not designated as conversions or potential conversions. (JR 229-
34.) For sites not indicated as conversions, any construction of residential units is subject to land use and building controls. For example, multi-family developments are subject to height limits from three to five stories. (JR 153-54.) Any building in the Overlay Zone must include commercial uses on the ground floor, and residential uses on the first floor within the first 40 feet from the street are prohibited. (BMMC §§ 10- 3-1877(C), 10-3-1879.) Moreover, each multi-family development must have at least 200 square feet for each dwelling unit, excluding front yards, balconies, and pedestrian accessways. (BHMC §§ 10-3-1886, 10-3-2803.)
The sites inventory contains no adjustment based on land use controls for new construction, as required by section 65583.2(c)(2). Rather, like the sites designated as conversions, the number of units for each site is calculated based on the land area multiplied by the maximum residential density. Moreover, the housing element contains no meaningful consideration and analysis of the governmental constraints on the development of housing, as required by § 65583(a)(5). Rather, the City relies on prior approved and proposed developments in arguing in conclusory fashion that "the current standards are not inhibiting development of housing." (JR 158-159, 203-
04.) Accordingly, the housing element, including the sites inventory, fails to account for the realistic development capacity for the sites listed in the inventory.
With respect to respondent's contention that the maximum residential density exceeds the density set forth in section 65583.2(c)(3)(B)(iv), this only means that the 3 For example, for 8730 Wilshire Blvd., the parcel size is 11,863 square feet. (JR 233.) There are 1/43,560 acres in one square foot. (See https://www.britannica.com/science/acre-unit-of-measurement [43,560 square feet in 1 acre].) 11,863 square feet multiplied by 1/43,560 acre per square foot is 0.27 acres.
0.27 acres multiplied by 79.2 units per acre is approximately 21 units. 6 City does not have to provide an analysis demonstrating how its adopted density accommodates its share of the regional housing need for lower income households. (§ 65583.2(c)(3)(A-B).) However, the City still must adjust the number of units for each site based on the realistic development capacity of the site under section 65583.2(c)(l) and (c)(2) and provide an "analysis of potential and actual governmental constraints upon the ... development of housing for all income levels" under section 65583(a)(5).
Petitioner also argues that the City designated the majority of the sites on the sites inventory as 100% low-income or 100% moderate-income housing without explaining the basis for such designation. (OB at 10:6-7.) Petitioner further argues that the City did not adjust the unit counts based on "typical densities of existing or approved residential developments at a similar affordability level in that jurisdiction," as required by section 65583.2(c)(2). (OB 10:7-8.) Petitioner, however, does not reference any statute that requires an explanation for the basis for the low-income or moderate-income housing designation. The housing element law only requires that the City specify "the number of units that can realistically be accommodated on that site and whether the site is adequate to accommodate lower income housing, moderate-income housing, or above moderate-income housing" and demonstrate "how the number of units determined for that site ... will be accommodated." (§ 65583.2(c), (c)(l).) The sites inventory indicates the total number of units for each site. (JR 229 ["Total Units" column].) By indicating the number of units that are designated as low-income or moderate-income housing, the City also indicates "whether the site is adequate to accommodate lower income housing [or] moderate-income housing." (JR 229 ["Lower" and "Mod" columns].) While the City did not explain how the total number of units will be accommodated for the reasons stated above, the designation of housing as low-income or moderate-income is not deficient.
Nevertheless, it is not apparent from the sites inventory whether the City adjusted the numbers for low-income and moderate-income housing based on "typical densities of existing or approved residential developments at a similar affordability level in that jurisdiction." (§ 65583.2(c)(2).) By multiplying the land area by the maximum residential density of 79.2 units per acre and designating all housing as low- or moderate-income housing, the City assumes that all units built on the site will be low-income or moderate-income housing. The City does not account for the possibility that only a certain percentage of the housing on the site will be designated for residents with low- or moderate-income. A revised housing element would need to contain an adjustment based on typical densities at similar affordability levels.
In sum, with respect to realistic development capacity, the housing element is deficient for the following reasons: (1) for conversions, the sites inventory calculates the total number of units based on a product ofland area and the maximum residential density without accounting for the floor area of the building; (2) the sites 7 inventory does not contain any adjustments based on land use controls for new construction; (3) the housing element contains no analysis of the governmental constraints on the development of housing; and (4) the sites inventory does not contain any adjustments based on typical densities of existing or approved residential developments at similar affordability levels in the City.
2. Nonvacant Sites
For nonvacant sites, the housing element law imposes the following additional requirement:
[T]he city or county shall specify the additional development potential for each site within the planning period and shall provide an explanation of the methodology used to determine the development potential. The methodology shall consider factors including the extent to which existing uses may constitute an impediment to additional residential development, the city's or county's past experience with converting existing uses to higher density residential development, the current market demand for the existing use, an analysis of any existing leases or other contracts that would perpetuate the existing use or prevent redevelopment of the site for additional residential development, development trends, market conditions, and regulatory or other incentives or standards to encourage additional residential development on these sites.
(§ 65583.2(g)(l).)
Petitioner argues that the City does not explain how its methodology relates to the sites it has included or excluded in the sites inventory. For underutilized nonvacant sites, respondent explains that it selected sites that were more likely to be redeveloped or converted based on evidence of a lack of investment in the property, such as a lack of maintenance or lack of recent upgrades and improvements; parcels with underutilized improvements; and parcels with existing commercial buildings that are higher than 3 stories but whose floor plan is conducive to residential conversion. (JR 202-03, 210-11.) Respondent also explains that existing uses do not constitute an impediment to additional residential development because the creation of the Overlay Zone creates opportunities for residential development; conversion from non-residential to residential use costs less than new construction; and high residential property values in the City create financial incentives for residential development. (JR 209-10.) However, respondent discusses its methodology for determining development potential generally, without engaging in any site-specific analysis.
Respondent contends that it need not engage in an analysis of the methodology of the development potential for each site. The Court disagrees. Section 8 65583.2(g)(l) states that, for nonvacant sites, "the city or county shall specify the additional development potential for each site within the planning period and shall provide an explanation of the methodology used to determine the development potential." Reading the subdivision as a whole, the City is required to provide an explanation of the methodology for each site in the sites inventory. Among the factors that the methodology must consider are "the current market demand for the existing use" and "an analysis of any existing leases or other contracts that would perpetuate the existing use or prevent redevelopment of the site for additional residential development." (§ 65583.2(g)(l).) These factors necessarily relate to specific sites and cannot be discussed generally. Because the Legislature included these factors, the Legislature surely intended that the City provide "an explanation of the methodology used to determine the development potential" for each site.
Without a site-specific analysis, it is unclear how the methodology was applied. For example, as petitioner points out in the opening brief, the City purports to have excluded commercial buildings that contained medical uses and car dealerships from the sites inventory. (JR 210.) However, the sites inventory includes medical buildings and car dealerships. (See, e.g., JR 229-30 [153 S. Doheny Dr., 239 S. La Cienega Blvd., 8833 W. Olympic Blvd., 8845 W. Olympic Blvd., 9134 W.
Olympic Blvd.].) The City does not explain how the existing use does not serve as an impediment to residential development.
For the foregoing reasons, with respect to section 65583.2(g)(l), the housing element is deficient because the City did not provide an explanation of the · methodology used to determine the development potential for each site, including a discussion of the factors probative of likelihood of redevelopment set forth in section 65583.2(g)(l).
Further, the sites inventory shows that the City is meeting all of its share of the need for lower-income housing through nonvacant sites. Accordingly, section 65583.2(g)(2), quoted below, is implicated: •
In addition to the analysis required in paragraph (1), when a city or county is relying on nonvacant sites described in paragraph (3) of subdivision (b) to accommodate 50 percent or more of its housing need for lower income households, the methodology used to determine additional development potential shall demonstrate that the existing use identified pursuant to paragraph (3) of subdivision (b) does not constitute an impediment to additional residential development during the period covered by the housing element. An existing use shall be presumed to impede additional residential development, absent findings based on substantial evidence that the use is likely to be discontinued during the planning period.
(§ 65583.2(g)(2).)
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For nonvacant sites, the "Field Notes/Existing Conditions & Analysis for Keeping/Removing" column in the sites inventory only indicates the existing use of the site and whether the site is designated for conversion or has conversion potential. (JR 229-34.) The City does not engage in any discussion of occupancy rates, lease terms, viability of the business operating at the sites. Nor does the City present any other discussion demonstrating that the existing use for each site "does not constitute an impediment to additional residential development during the period covered by the housing element."(§ 65583.2(g)(2).) Without any evidence concerning the existing use of each site, the existing use is presumed to impede additional residential development. (Ibid.)
Respondent maintains that Culver City and Gardena obtained HCD approval based on a chart similar to its sites inventory. However, unlike Beverly Hills, Gardena's sites inventory sets forth the existing use of each site and why the existing use is likely to be discontinued during the planning period. (Reply RJN Ex. B; cf.
Chen Deel. Ex.Bat 71 [listing criteria used in selection of sites].) With respect to Culver City, the sites inventory does not set forth the reason why the existing use is likely to be discontinued. (Chen Deel. Ex. A at Appendix B.) However, elsewhere in the housing element, Culver City discusses sites that present opportunities for development based on positive responses from property owners and developers. (Chen Deel. Ex. A at B-9 to B-10.) Unlike Beverly Hills, Culver City discussed how the existing use at certain sites would not impede residential development. Beverly Hills did not engage in any site-specific analysis concerning how the existing use would not impede additional residential development.
Respondent contends that the Court of Appeal in Martinez v. City of Clovis (2023) 90 Cal.App.5th 193 determined that no site-specific analysis concerning the methodology used to determine development potential and additional development factors is required. This is not quite accurate. In Martinez, the Court of Appeal found that section 65583.2(g)(l) "does not mandate the City 'specify the additional development potential for each [nonvacant] site within the planning period and ... provide an explanation of the methodology used to determine the development potential' in the housing element itself." (Martinez, 90 Cal.App.5th at 248-49, emphasis added.) While specification of the additional development potential for each site does not have to be part of the housing element, the City still must demonstrate the additional development potential for each site. In Martinez, for example, the City of Clovis provided evidence outside of the housing element to demonstrate the development potential of a nonvacant site. (Id. at 249-51.) Here, there is no analysis of the additional development potential for each site listed in the sites inventory in the housing element or elsewhere. Further, the housing element does not contain findings based on substantial evidence that the existing uses of nonvacant sites are likely to be discontinued, as required by section 65583.2(g)(2) .•
10 In sum, with respect to nonvacant sites, the housing element is deficient for the following reasons: (1) the City did not provide an explanation of the methodology used to determine the development potential for each site in the sites inventory, including a discussion of the factors probative of likelihood of redevelopment set forth in section 65583.2(g)(l); and (2) the City fails to demonstrate with substantial evidence that the existing use for each site in the sites inventory does not constitute an impediment to additional residential development during the period covered by the housing element.
C. Specific Sites
Petitioner also contends that certain sites were improperly included in the sites inventory. (OB at 15:6-17:1.) Petitioner maintains that the City did not make the findings based on substantial evidence that are required to rebut the presumption under section 65583.2(g)(2) that the existing use will impede additional residential development. (Reply at 4:13-14.)
However, in contending that additional residential development is not possible on certain sites, petitioner relies on extra-record evidence. For example, for 55 North La Cienega, the sites inventory indicates that the property will have 70 low-income units. (JR 229.) However, petitioner presents a Planning Commission Report and meeting minutes to assert that the City's Planning Commission approved development on the site with only 11 units of very low-income housing. (Gelfand Deel. Exs. C at 1, D at 3-4.)
"[W]here the scope of review of factual findings is substantial evidence, review limited to the administrative record is appropriate because extra-record evidence is irrelevant to whether the agency's decision is supported by substantial evidence." (Cinema West, LLC v. Baker (2017) 13 Cal.App.5th 194, 208.) Petitioner cannot challenge the inclusion of sites in the inventory based on extra-record evidence.
Ironically, petitioner would have the Court consider the propriety of certain sites based on extra-record evidence, but then bar respondent from presenting extra-record evidence to rebut petitioner's argument. (Reply at 4:18-5:13.) With respect to sites which petitioner contends are unlikely to disappear based on their existing use (OB at 16:21-17:2; JR 1557-58), the Court already finds that respondent did not make findings based on substantial evidence that the existing use for each nonvacant site in the sites inventory is likely to be discontinued. The City must make such findings in revising the housing element. 11 VI. Conclusion
The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate. •
Date: September 12, 2023 ,t:::_::_ HON. CURTIS A. KIN
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