From: River Landon <[email protected]>
Sent: Thursday, August 20, 2026 12:19 PM
To: Lindsay Lara <[email protected]>
Cc: Eli Hill <[email protected]>; Rachel Kertz <[email protected]>; Maribeth Bushey <[email protected]>
Subject: Written public comment September 8, 2026
Dear Ms. Lara, City Clerk, good morning:
Please accept the attached August 7, 2026 Letter and Memorandum, and this cover email, as written public comment for the September 8, 2026 San Rafael City Council meeting.
Please distribute the complete submission to the Mayor and every Councilmember; post it online as correspondence for Open Time for Public Expression; retain it with the meeting materials; and confirm receipt and posting. If any portion will not be posted, please identify the reason and any redactions made.
I also intend to attend the meeting and provide oral public comment. Among the questions I intend to raise are:
• Is the staff conduct documented in the record—particularly at PDF pages 165–210— reasonable and consistent with the City’s obligations?
• To what extent did the challenged conduct reflect staff decisions, advice of counsel, or both?
• The documented similarities between San Rafael’s and Menlo Park’s approaches indicate use of a common legal-defense strategy to delay or defeat otherwise lawful housing applications, conduct condemned by the California Department of Justice? Is this reasonable for the City council to condone, both by its silence and lack of action? • What oversight, corrective action, or consequences does the Council consider appropriate for City staff or legal counsel - and by when will this be taken? • What is the Council’s response to these documented concerns? The attachment presents evidence, allegations, and issues for Council review; it does not represent that disputed matters have already been adjudicated. If substantive discussion is not permitted because the matter is not separately agendized, I request that the Council refer it for review and consider placing it on a future agenda.
This submission is being sent directly to three of the five members of the City Council—a majority of the legislative body—and copied to the City Clerk. Please treat it as written public comment and a public record, make it available for public inspection, and post the complete submission online with the correspondence for the September 8, 2026 meeting, consistent with the City’s established practice. To the extent Government Code section 54957.5 applies, please comply with its publicaccess requirements.
Thank you. Please confirm by Tuesday August 25, 2026 that this will be posted.
Chris Sullivan
1 Councilmember Mr. Eli Hill,
Councilmember Ms. Rachel Kertz,
Councilmember Ms. Maribeth Bushey
City of San Rafael Council,
1400 5th Avenue, San Rafael, CA 94901. BY EMAIL
August 7, 2026
Dear Councilmember Hill, Councilmember Kertz, and Councilmember Bushey; Coleman Drive multifamily 14 & 29 unit housing development projects deemed to satisfy all standards. Demand for Prompt Council Review of Statutory Compliance and Continuing Financial Exposure
I write to raise multiple grave concerns about what we allege – with substantial evidence developed over 6 years - is San Rafael’s continued egregious non-compliance with law in continuing to not provide written approvals of our by-right ministerial planning entitlements for the 29 unit and 14 unit housing projects at Coleman Drive, San Rafael – with the 29 unit project outstanding since January 2024 - 2 ½ years ago.
This communication also responds to the city’s legally defective July 1 response to applicant’s Housing Accountability Act H6 notice of April 2, 2026. I explain below.
I am writing as River Landon’s business representative, not as its lawyer. Our lawyers have pleaded, and will continue to address, the legal claims. My purpose is to place the Council squarely on notice of the business consequences, the documentary record, and the practical decision now before it.
Liability of the city to significant damages.
By not carrying out their mandatory ministerial duties, City staff have exposed the city to financial liabilities of at least $19,250,000, plus fees, costs and other expenses. These damages and consequential damages continue at a rate of at least $642,000 per month. This has now 2 been the case for 30 months. This is our position – and supported by much, much evidence. I will explain.
The Council now has an opportunity—and, in River Landon’s view, a fiscal responsibility in prudent management —to stop the City from creating further avoidable exposure.
Those damages have not yet been adjudicated. But that - in no way - means that there is not serious financial risk. And every additional month adds materially to the City’s potential exposure if River Landon prevails.
Ministerial duties of a local government are not immune from liability in the way that prior discretionary acts of a city in planning were – the housing landscape has dramatically changed.
As the bill’s author stated publicly this year – “I changed the way housing works in California” One part of that change is that the review and processing is ministerial. Combining with that, inter alia review and processing is subject to very strict deadlines and very specific actions that the city must take within those deadlines– ensuring that the process works per the intent.
Government Code § 820.2: “A public employee is not liable where the act or omission resulted from “the exercise of the discretion vested in him”
Government Code § 815.6: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty..” And courts have found against California cities and counties in permitting cases under that code, awarded consequential damages, including a notable permitting case against Marin County.
It is established law in California that a government does not have immunity from financial liability where it has failed to perform, or incorrectly performed, ministerial duties.
Given this – why would the city now continue the conduct communicated in the applicant’s H6 notice (as it is doing), & following the filing of our amended complaint on August 4th 2026? The reflexive position of the city has been counter-intuitive – continue to fight construction in your residential zones. But at the cost of the profit & value of the Coleman Drive development – which has moved into the city’s liability column.
And in the dramatically different current regulatory regime - the more the City fights a compliant application - the more it has to pay in damages. That was simply not the case before – a city could essentially fight all it wanted – prior.
It may be an interesting theoretical exercise for the city to advise lawyers – primarily external -– to raise possible (and with no choice - very weak) defenses in Court (and work together with that counsel) - which is very time consuming - but that simply has the direct effect of significant risk 3 of increasing the payout by the city to the applicant. That is not a rhetorical point; it is the economic consequence of choosing – for example - another six months of delay.
The city for example could try to have SB 35 claims dismissed, on various theoretical bases – as it has tried for the last 6 months to do, unsuccessfully. In attempting to have the claims dismissed before the court, which has been quite attentive to the claims, that would likely take an additional six months. During that time the damages borne by us are an additional minimum of $4,000,000 - & owed by the city. The unnecessary and inappropriate (and failed) defenses by the city are – we believe and allege - costing it (a minimum of) $8,000,000 a year.
The Council should compare that potential exposure and additional defense costs with the available path of approval or prompt resolution.
The best course for the city – on any reasoned analysis – is to issue approval letters for these compliant developments – so that the damages accrual stops – no? Why is River Landon pressing this case? - housing, the city’s violation of our rights, and my personal experience
To build housing, and to build updated housing.
Because we want to build much needed, modern, healthy, mold-free, insulated new housing within the residential zones – and provide the first round of such units for rent in San Rafael.
The rental unit inventory in the residential zones in San Rafael is – as you know – often very challenging as to condition, most of it is at least 50 years old, the simplest and most elementary of homes rent for $4,000 per month and more, and with no competition there is unfortunately little incentive for landlords to undertake the expensive work to invest in, undertake & manage repairs and sometimes complex updates. Just as an example - one such project, a rental, that I am familiar with, in San Rafael, asbestos was discovered which significantly, & adversely, altered the project path and cost for the owner and the renter.
New construction will provide high quality housing in the residential zones - that public benefit is not a substitute for River Landon’s legal rights, but it is an important part of why this prolonged obstruction by the city is so difficult for the City Council to justify.
Egregious acts of government against my family
Also – I write, as an executive with responsibility for these development applications. I will explain – and it involves personal things. My family had their homes taken from them by a government in Europe - in the most terrible and unlawful acts. My great uncles – lawyers with 4 much skill – worked to intervene. But the families, and all their possessions, were pulled from their homes by government officials, left on the street - and their homes burned & razed to the ground. During this the government staff waved ‘official’ papers they themselves had signed ‘certifying’ their actions as lawful – and with lawyer’s names on the documents. The government, and their lawyers, then insisted that the homeowners pay for the costs incurred in (illegally) demolishing their homes.
My family resolved that – come what may – these type of acts would never happen to the family again – the taking of property by a government and related acts.
I do not equate San Rafael with that history. I include it because it explains why government interference with private property—particularly when justified by self-generated seemingly official paperwork – with lawyers confirming —is not an abstraction to me. It is why River Landon will continue, firmly and lawfully, until the City complies with the law or a court compels it to do so.
I thank you for reading this personal story - I thank you for indulging me in my explanation.
San Rafael government’s action
Your government has, and continues even as I write to egregiously violate our fundamental rights & which it does it under color of law.
It gives no pleasure at all to raise and state this – San Rafael is engaged in unlawful acts against homes and private property.
San Rafael uses excuses to hide its conduct – it’s for the environment, it doesn’t comply with the city’s ‘objective standards’ (which are not objective), build close to jobs, leave the San Rafael hillsides alone, maintain dark skies, there’s problems with access to these lots, the applicant hasn’t provided information (irrelevant information), etc. These statements – really a façade actually - attempt to soften the non-compliance by the government, but only a few minutes analysis reveals that the excuses are just that.
- The city has unlawfully rendered the private property useless and of no economic value by these unlawful acts.
- The city has unlawfully demanded that we pay fees – that we pay to fund these unlawful actions against us.
- The city has condemned the property - by among other things endless & continuing unlawful ‘bureaucratic’ hurdles.
And even despite several olive branches held out to you.
So we seek, and will never cease to seek – justice in this matter. These violations of our rights must immediately CEASE - Mr. Hill, no?
5 River Landon demands that the challenged conduct cease and asks each Councilmember addressed here to ensure that this legal matter is considered through a lawful Council process (strictly subject to SB 35 limitation on City Council consistency review/public review).
River Landon further alleges that political preferences concerning where housing should be located have materially influenced the City’s treatment of the Coleman projects. The public statements, approval data, and processing record supporting that inference are set out below.
All of these matters (including the below) will be reviewed by the court.
The Attorney General’s Menlo Park letter—and why it matters here As I was finishing up all of this correspondence, a letter that has now been widely circulated on the internet -surfaced. The letter is addressed to Nira Doherty, counsel advising you since September 2024 on our development(s), and is from the State Attorney General.
And it’s quite the letter - for sure.
The letter – one of the most direct and strongest communications that I personally have ever seen come out of Sacramento – addressed to Nira Doherty - castigates the approach adopted by City of Menlo Park and its adviser and city attorney Nira Doherty. Late determination letters, changing reasons for a project not complying with standards, denying the Builder’s Remedy when it is in fact applicable, increasing the extent of the project site in a way that would make it look like it doesn’t qualify (inappropriately focusing on parcel lines not the project site), determining that a project did not qualify for streamlined processing, maintaining that late determinations are valid, requested information not required for the application, not applying Density Bonus law waivers and bonuses, requiring the applicant to pay the fees of the lawyer that is advising different approaches for not approving the compliant development, requiring that the applicant hold a city harmless from actions taken against that same applicant. The Attorney General outright rejected all these approaches taken by the city and Nira Doherty its counsel & city attorney, and informed her that the city is in violation of the Housing Accountability Act.
And it means that the City’s outside counsel has now received direct notice of the Attorney General’s position on the same playbook line by line.
But – fancy this – while being advised principally by Nira Doherty, for the River Landon project, San Rafael has provided - late determination letters, constantly changing reasons for a project not complying with standards, Nira Doherty writing in summer 2025 that the project is not subject to the Builder’s Remedy, Nira Doherty ‘analyzing’ that it is not a multifamily development, analyzing the project single family parcel by single family parcel (we have always proposed a multifamily development) rather than the actual project site (making it appear that the project did not qualify using lot lines - per Menlo Park), determining many times that our project does not qualify for SB 35 using a standard that has no uniform external benchmark despite staff undertaking that – your adviser Nira Doherty - would look into that and return to us which she 6 did not, requesting information not required for the application, not applying Density Bonus law waivers and bonuses, requiring from summer 2025 when litigation started that Nira Doherty’s fees – who is advising the city regarding not approving the application – advice provided against the applicant should be paid by the applicant, the city requiring in writing in March/April 2026 that we must sign a document holding the city harmless for its actions against us (prohibited in State law) and until then the city will not process anything.
The State Attorney General has outright rejected these approaches. The letter is attached.
See the initial analysis attached – Menlo Park’s discredited playbook v San Rafael’s playbook.
Bingo. The analysis (& of potential actions that will be taken as a result of further analysis) is continuing. The analysis clearly demonstrates (and under the HAA the entire record will be considered by the court) that a common schema has been used. Unsurprisingly, that schema is unlawful. It is shocking.
The Menlo Park matter does not decide River Landon’s case. But the Attorney General has now formally rejected the same municipal methods as not being in accordance with law. The Council should not permit San Rafael to continue comparable conduct without inter alia obtaining a genuinely independent assessment.
Demanding that an applicant pay for counsel of the city to provide advice to the city on how to treat the application and (purportedly) deny it et al? Really - is San Rafael mad? And San Rafael – rather than properly respond to the public H (6) notice demanded the applicant INDEMNIFY the city from the (unlawful) conduct the city is engaged in against the applicant and unless and until it did, it would not process the development. Somebody look up the meaning of coercion. The burden of proof that the city acted lawfully is with the city, as result of the city’s non-compliance with the H(6) notice – & that it took 3 months to study.
These analyses will be presented to the court. River Landon is very concerned – very concerned indeed - that this improper defendant litigation strategy with its alleged facts has already filtered into the court process, in representations made in Defendant’s filings, and in oral representations – such as the multifamily representations, with no definition of attached and no timely consistency determination, and representations that the developments are not subject to the Builder’s Remedy which would otherwise moot any objective standards determination, et al.
The Attorney General has unequivocally denounced the legal approaches used, and those approaches (lost the Builder’s remedy, demanding indemnities and fees, alleging inconsistency late yet maintaining it is valid and lawful etc etc etc) – to represent they were and are lawful - would constitute misrepresentations to the court. Those avenues are thus no longer available to the city. This position will be brought before the court.
As to the staff’s purported defenses against the developments, and outside counsel’s duplicative copy & paste project level-agnostic unlawful legal defense architecture, we like to say in the old mother country – “you’ve been rumbled”. There’s nothing left in it – give it up. 7 And turning briefly back to Menlo Park, Menlo Park has posted their objections to the Project on their website, but at the time of writing has not posted the Attorney General’s letter – ‘the Almanac’ first obtained by PRA request.
San Rafael has not posted any correspondence from our lawyers, Cox Castle, has removed our H6 notice contesting the city’s unlawful approach from its website, and has posted its (noncompliant) determination letters.
But government is to be a public, open entity.
All the attachments are important, but we ask that you do not fail to read Attachment “Analysis of the parallel, playbook law firm processing template used to block and deny applications.
Menlo Park compared San Rafael. Not responsive/specific to facts” What River Landon requires the Council to do
I am not asking any Councilmember to commit privately by return email. I am asking each of you to ensure that this matter is placed before the Council through a lawful process and that the City makes a real decision.
By August 18, 2026, River Landon requests that the Council:
1. place the Coleman matter on the earliest lawful agenda, including closed session as counsel advises;
2. obtain a written risk assessment addressing claimed damages, attorney’s fees, statutory remedies, defense costs, and the cost of continued delay;
3. authorize the appropriate City official to issue the approvals River Landon contends are required, or authorize a prompt settlement providing equivalent relief; and
4. designate senior City representatives (not staff) with authority to meet with River Landon and its counsel within seven calendar days.
August 18 is River Landon’s requested business and risk-management deadline. I do not represent it as a separately created statutory deadline.
We DEMAND that you issue written approvals by August 18, 2026.
Nothing in this letter waives any claim, vested right, deemed-consistency position, damages theory, monetary request, fact, statutory remedy, or entitlement to approval, or right to seek enforcement with other entities.
River Landon has remained available for a practical solution. What it will not do is enter another indefinite processing loop while the City’s potential exposure continues to increase. 8 Please advise of the proposed dates, and the person selected. I can be reached at [email protected] or (415) 209-5231.
If there is any reasonable question that you may have in the interim, please call or write.
Thank you, in anticipation of your action.
Chris Sullivan
For River Landon LLC
cc:-
Mr. Matthew Struhar, Deputy Attorney General, State of California [email protected] Mr. Rob Bonta, Attorney General, State of California [email protected] Mr. David Zisser, California Housing and Community Development [email protected] Mr. John Buettner, California Housing and Community Development [email protected] Mr. Rob Epstein, City of San Rafael, City Attorney [email protected] Mr. Andrew Sabey, Applicant Counsel, Cox Castle [email protected] Mr. Scott Birkey, Applicant Counsel, Cox Castle [email protected] Mr. Eric Cohn, Applicant Counsel, Cox Castle [email protected] Mr. Nicholas Eckenwiler, Supervising Attorney, Cal HDF [email protected] Mr. James Lloyd, Attorney, Cal HDF [email protected]
Mr. Dylan Casey, Founder and Attorney, Cal HDF [email protected] Mr. Don Chen, Of Counsel, Cal HDF [email protected]
9 Coleman Drive Builder’s Remedy multifamily
development of 14 units and 29 units.
SB 35, the Housing Accountability Act, the July 1 H6 Response, City continues improper conduct after H(6) notice & response, and the City’s Continuing Financial Exposure
SUPPORTING MEMORANDUM
August 7, 2026
Errors and Omissions Excepted.
Version 1.0
10 Table of Contents:
1 EVIDENCE OF A CITY POLICY FAVORING HOUSING ELSEWHERE AND AGAINST HOUSING IN THE RESIDENTIAL ZONES ............................................................................................................................. 11 2 NONE OF THE STANDARDS THE CITY HAS ATTEMPTED TO APPLY CAN (IN FACT) BE LAWFULLY APPLIED ............................................................................................................................................. 14 3 DAMAGES - DEMAND TO CITY TO ISSUE APPROVALS FOR THE 14 UNIT AND 29 UNIT
PROJECT - AND THUS MITIGATE & STOP DAMAGES ACCRUAL WHICH CURRENTLY STANDS AT $19,250,000 PLUS FEES & COSTS ......................................................................................................................... 18 4 STATEMENT OF FACTS................................................................................................................................ 20 5 STATUTES & STATUTORY SCHEME(S) TO WHICH THE DEVELOPMENTS ARE SUBJECT AND PROTECTED:............................................................................................................................................................ 36 6 ANALYSIS OF CLAIMS................................................................................................................................. 50 7 ATTORNEY GENERAL TO CITY OF ELK GROVE................................................................................. 55 8 ATTORNEY GENERAL TO NIRA DOHERTY, OUTSIDE COUNSEL FOR SAN RAFAEL, AND OUTSIDE CITY ATTORNEY, MENLO PARK..................................................................................................... 56 9 TECHNICAL ASSISTANCE LETTERS HCD ON CONSISTENCY AND INCONSISTENCY LETTER,
CODE REFERENCE, CAREFUL EXPLANATION, MUST BE TIMELY, MUST BE PROVIDED IN EACH AND EVERY CIRCUMSTANCE. ZONING DATA TABLE ET AL PROVIDES THE DATA REQUIRED FOR A REASONABLE PERSON TO ASSESS CONSISTENCY......................................................................... 57 10 CARLA V CITY OF SAN MATEO ................................................................................................................ 58 11 SB 35. 40 MAIN STREET OFFICES V CITY OF LOS ALTOS ................................................................ 59 12 ANALYSIS OF THE STANDARD, PARALLEL, PLAYBOOK LAW FIRM PROCESSING TEMPLATE USED TO BLOCK AND DENY APPLICATIONS. NOT RESPONSIVE/SPECIFIC TO ACTUAL FACTS........................................................................................................................................................ 60 MENLO PARK COMPARED SAN RAFAEL ........................................................................................................ 60 13 ANALYSIS OF SAN RAFAEL FORMAL RESPONSE TO APPLICANT H6 NOTICE 4/2/26 > 7/1/26 61 14 CITY OCTOBER 6 2025 ‘CONSISTENCY LETTER’ COMPARED TO THE STANDARDS THAT ARE IN FACT ALLOWABLE.................................................................................................................................. 62 15 COMPLAINT AND WRIT, AMENDED AND FILED AUGUST 4, 2026. UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, BEFORE HONORABLE JUDGE LAUREL BEELER. ................................................................................................................................................... 63 11 1 Evidence of a City policy favoring housing elsewhere and against housing in the residential zones
That the city has not issued approvals is not due to our development applications being noncompliant (they are compliant). It is for reasons of the city’s political policy. While that MAY have been permissible prior, now under the State Housing reform laws it is definitively not.
That is for the most part an inference, not a quotation from a secret City policy document. Yet my statement is supported by very clear City official’s public statements, the extraordinary geographic distribution of approvals, and the repeated processing barriers imposed on projects in the residential zones, yet not in the commercial zones. The evidence should be considered together rather than in isolation.
I explain:
“.. development can’t come at the cost of the community feel San Rafael prides itself on, so they choose projects that preserve open space and are close to jobs and transportation”. Kate Colin, Defendant, Eden Housing article. March 2024
“It [downtown] has the infrastructure, the transit access, the services – if you’re going to build housing, this is where it makes sense”. Micah Hinkle, in charge of Housing at city, Defendant. SF Chronicle, March 2026
“she “believes deeply in the planning framework our community developed through the general plan process” and questioned “whether this project aligns with the long-term expectations of our community” “Tonight, we have these binary choices, which are so unsatisfying, because I want to be talking about nuance,” ‘I support housing, I support density, and I have concerns with this project.'” 12 Colin, voting to uphold an appeal to reverse approval of compliant Irwin St development - the planning department stated in the public meeting that the project complied with all objective General Plan and zoning standards and criteria. Colin voted to deny the project, despite it being compliant with all planning and zoning law.
February 2026
Given the above, what chance does a project in the San Rafael hillsides stand?
“What has become clear is there is very little discretion for cities in state density bonus law housing projects, and there is no discretion at all in ministerial housing projects such as SB 35” – the city knows there is no discretion – but in bad faith refuses to approve River Landon’s SB 35 developments.
Kavanaugh-Lynch, February 2026
And the results of that political policy are in:-
Table
1 Approvals
OUTSIDE
residential
single
family
zones in
downtown
Percentage of
city (all per
city General
Plan table 3-
1)
Percentage
of all city
approvals
that are
within
Downtown
zone
Approvals
WITHIN
residential
single
family
zones
Percentage
of city (all
per city
General
Plan table
3-1)
Percentage
of all city
approvals
that are
within
residential
single
family zones
2023 162 3.9% 99.4% 1 33.2% 0.6%
2024 204 3.9% 100% 0 33.2% 0%
2025 547 3.9% 99.9% 1 33.2% 0.1%
13 This data is taken from city’s official Annual Production Reports required submitted to HCD.
San Rafael is unlawfully blocking our developments - simply because they are in the ‘wrong place’. Nothing to do with standards, nor scoping, or that there are too many units on a single family parcel, nor that information has not been submitted by the applicant, nor a debate over what multifamily means, nor the height of lighting - as we again here demonstrate to the city from the above - San Rafael must pretend those are the reasons - yes –- but actually it’s just way simpler - our developments (and all the others) are blocked because they’re in the politically sensitive residential zones where despite there being extensive land available the plurality of voters do not want new housing approved. And that’s it. End of story. Period. We know that.
You know it. You know we know it, and we know you know it.
Take the highly tortured history of our entitlement processing. Take the public statements by city officials stating they don’t want development in the hills. And – unsurprisingly - the results prove it out - the number of approved housing units per percentage point of City land was approximately 4,570 times greater downtown than in the residential single-family zones. The statistical probability that this is a coincidence and not the result of city policy is zero – not a 10% probability, not an 18% probability – a 0% probability - i.e. it cannot under any circumstance be a coincidence. And, if both zones were treated equally by the city, there would have been 819 new permits in the single family zones, and 96 downtown.
The court will see all of these concerns, and we will ask the court to evaluate them.
The definitive statements of public policy help seal the fate of any defense to issuing entitlements. It is the implicated clear policy of city officials to block housing in the residential zones, yet strongly direct new approvals to only downtown (inter alia ‘we pick the projects’ ‘close to jobs’) – sorry, but a policy referred to in the industry as ‘dumping’.
The big problem is – it’s against the law – and equally significant problem for the city is that River Landon has suffered significant financial damages as a result of this city policy, and thus not carrying out its ministerial duty, & from which damages the city is not immune.
We put the city council on notice – again – that the city is exposed to very significant financial liability from the consequential loss that River Landon has suffered and continues to suffer.
Under 815.6, the city has no immunity from failing to carry out its ministerial duties, and failing again and again and again, as is the crystal clear case here. The fact that there is no immunity for the city under our State claims is not an argument – that is uncontestable established law. 14 2 NONE of the standards the city has attempted to apply can (in fact) be lawfully applied
Categorization of standards types that
cannot be used by city. Multiple “types”
of non-objective standards, standards that
are disallowed in SB 35, explanation
requirements, & timing. The City may
describe the items in its letters as
objective standards. River Landon’s audit
shows why, as applied here, those items
did not lawfully support a finding of
inconsistency. The principal defects fall
into the following categories:
See supporting
attachments
1. Where a standard is, is codified as, or
can be exercised by discretion
Standards, restrictions, & use restrictions
that depend on the exercise of discretion,
that involve discretion, are non-objective
standards
Example “city has a
mechanism to deviate
from the development
standards..for projects
that meet the goals [of
the Planning
Area]””Because the
HAA and SB 35
prohibit the application
of a standard that
involves any
discretionary
application”. Emphasis
Attorney General
CA Attorney General
March 16, 2023 to
City of Elk Grove.
Result – standards that
can be confirmed,
altered, or applied by
exercise of discretion
are not objective
standards, and cannot
be applied in SB 35
2. Any standard that involved personal
interpretation or subjective judgment
Not permitted to be
applied in 65913.4
“they…require
personal
interpretation or
subjective judgment
that may vary from
one situation to the
next” “a standard that
cannot be applied
without personal
interpretation or
subjective judgment
is not “objective”
under the HAA”
Carla v San Mateo
3. Cannot discriminate on basis is SB 35
35 application – i.e. where discretion,
City Council, Planning commission or
other body, or Design Review, or city
engineer or city official can provide
relief, that standard(s) cannot be
applied to SB 35 development
City – in effect – has
attempted to impose
higher standards on this
SB 35 development
because it is a
ministerial SB 35
development. How
so? – because it
attempts to hold the
developments to a
standard that – as each
standard states – an
applicant is entitled to
65913.4 (i) (1) A
local government
shall not .. impose
any requirement.. that
applies to a project
solely or partially on
the basis that the
project is eligible to
receive ministerial or
streamlined approval
pursuant to this
section”
15 relief from complying
with in discretionary
review
SB 35 Guidelines in
operation for
processing at the
relevant times.300 (f)
“A local government
shall not adopt or
impose any
requirement.. that
applies to a project
solely or partially on
the basis that the
project is eligible to
receive streamlined
processing”
4. Standards that do not have a longstanding and consistent interpretation and city demands deference to its own
unique determination
City demands
deference to its
interpretation & Court
finds that “serves as a
tacit acknowledgment
that the height
Guidelines require
something other than
objective
interpretation”
CARLA v San
Mateo.
Thus ruled as not an
objective standard
5. Standards for which there is an
argument over interpretation
including where there is ambiguity
CARLA v San
Mateo.
Not an objective
standard
“Too ambiguous to
be … susceptible to
objective
interpretation”
6. Requests for more information to
know if the Project will be consistent
(including statement that not sufficient
information)
This action by city is not sufficient
because this is “not a determination that
the project conflicted…[standard]”
This includes statements by city
“information not provided””requests
more information” when in fact applicant
not submitting for this entitlement – for
example fences – there are no proposed
nor needed fences. Another – doesn’t
comply with subdivision standards Title
15 – because applicant is NOT applying
for subdivision. In those cases indicated
at end of each analysis note – not applied
for ‘NAF’
Example “requested
more information about
whether the Project
would have a
pedestrian-oriented
commercial use on
ground floor” i.e.
“failed to make a clear
determination that the
project conflicted..”
CA Attorney General
March 16, 2023 to
City of Elk Grove.
Result “City failed to
determine in a timely
and adequate manner
that the Project
conflicted”
..so..”Project was
deemed to satisfy the
standard”
7. Careful explanation of conflict with
objective standards
Local governments “must carefully
explain any determination that a
proposed development conflicts with SB
35’s objective planning standards”
“within proscribed time periods” Here,
those time periods are 30 & 60 days.
City did not carefully
explain, neither did so
within proscribed time
periods
CA Attorney General
March 16, 2023 to
City of Elk Grove
explaining Ruegg &
Ellsworth v. City of
Berkeley (2021) 63
Cal.App.5th 277, 318
Result: the
development is
deemed to satisfy the
standard (by operation
of law)
16 8. Standards not articulated in the 30/60
days letters, then later used for denial
“[part of] determination
made 90 days after
project submission.
Denial made 90 days
after submission”
CA Attorney General
March 16, 2023 to
City of Elk Grove
..”untimely basis for
denial. This is exactly
the shifting goalposts
that the SB 35
determination deadline
is meant to avoid”
City informed would
be sued by AG’s office
if not approved
9. Standards can only be applied if
facilitate GP density, and meet RHNA
numbers
Further restriction on use of standards
even when they are objective
The local government
must apply objective
standards “appropriate
to, and consistent with,
meeting the
jurisdiction’s share of
the regional housing
need.. … the
development standards,
conditions, and policies
shall be applied to
facilitate and
accommodate
development at the
density permitted on
the site and proposed
by the development
65589.5 subd. (f)(1)
CA Attorney General
March 16, 2023 to
City of Elk Grove
5 “City’s application of
….restriction…is not
consistent with
meeting its fair
share…city is in it’s
second consecutive
cycle of failing to meet
its need for …low
income households”
“under the HAA, the
city could only enforce
the ..restriction in a
manner “to facilitate
and accommodate
development at the
density allowed on the
site by the general plan
and proposed by the
proposed housing
development 65589.5
subd. (j)(4)
“city enforced
…restriction to prevent
such development, in
violation of HAA”
AG informed city it
will sue them if not
approved
10. Standards that have requested
waivers, concessions, bonuses or
incentives cannot be applied
Standards waived by, or subject to
concessions or incentives
“In no case may a
city…apply any
development standard
that will have the
effect of physically
precluding the
construction of a
development meeting
the criteria of
subdivision (b) at the
densities or with the
concessions or
incentives permitted
by Density Bonus
Law” Govt Code
65915 (e)(1) A
developer may seek a
waiver or reduction
of such standards that
physically impede
construction of the
development” the
city “shall bear the
Finding for the
developer in SB 35
development - city had
not granted
concessions, waivers,
bonuses.
AG informed city it
will sue them if not
applied & approved
See attachments
Standards subject to
requested Density
Bonus relief cannot
support disapproval
17 burden of proof for
the denial” (d)(4)
40 Main St Offices v
City of Los Altos.
River Landon’s point
is that the City could
not treat the
underlying standard
as a final
inconsistency ground
while refusing to
process the waiver
request and without
making the findings
required to deny it.
The audit included here – in its first round - evaluates 46 analytical rows corresponding to 47 City entries. It finds, broadly, that:
• 36 of the 46 rows rely on requests for additional information rather than actual determinations of conflict;
• 35 lack the careful explanation of conflict required by SB 35; • nine concern entitlements River Landon did not seek;
• five involve standards for which Density Bonus Law waivers were requested; • 45 fall into one or more challenged nonobjective, inapplicable, waived, untimely, or otherwise unavailable categories as applied; and
• only one possible facially external and uniform benchmark was identified, and the audit concludes that the City misapplied that benchmark to the facts.
The result is not merely that River Landon disagrees with the City’s planning judgment. The result is that the City’s letters did not identify a legally sufficient inconsistency capable of supporting denial.
18 3 DAMAGES - DEMAND to city to issue approvals for
the 14 unit and 29 unit project - and thus mitigate &
stop damages accrual which currently stands at
$19,250,000 plus fees & costs
Since January 2024 – the date by which the applicant could readily have obtained all permits from the city if the city was following the law, but it did not and still has not, including as a direct consequence of the city not proceeding according to SB 35 and HAA. As a proximate cause, the applicant has suffered damages – consequential unlawful delay damages - of Loss of rent, at 6% vacancy rate, after expenses $345,681 per month Loss of appreciation of the development, 4% per year $296,000 per month Total $641,681 per month, plus attorney’s fees, costs, and applicant’s otherwise unnecessary management, professional and project office costs (unnecessary if the city had proceeded according to law)
Directly following from the above (calculated as at the time of writing), the damages as a direct consequence of the unlawful city delay are:
$19,250,000
No court has yet awarded these amounts. But they are real claimed exposure, supported by a calculation & real basis - and they increase daily with every further attempt to defeat State law. (As stated in amended complaint, in the event that the city’s continues to not proceed according to law, it is possible the applicant may not continue with the project, and consequential damages would be for a total loss – in excess of $75 million, proximately caused by the city and thus owed by the city to the applicant, plus $19,250,000)
The point is – city officials – you – have a common duty to proper financial management, which includes in this case to mitigate loss and damages against the city, a subdivision of the State.
Ready, fire, aim by others in the city will not work anymore. The sooner you issue the approvals – which is a mandatory ministerial duty with little effort – the sooner these lawful consequential damages of $21,389 per day – per day - will stop.
You can decide to keep fighting this development(s) through outside counsel. You can try Motions to Dismiss, motions for summary judgment. But the facts – the egregious history of the city’s processing of this case, and the law – the strong state housing reform laws that you strongly object to, and do not follow – are not on your side. Neither are the carefully considered 19 opinions of the State. Let’s take an example, for the sake of argument - you can take up the court’s time for another six months, trying to fight the lawful development - then you will owe another $3,850,000 in consequential damages, for a total of $23,100,516. That’s a big price for the taxpayers for blocking housing and political preservation – a very big price, and as prudent City Council members you will also be concerned that the city doesn’t have ready access to those funds.
These are not hypothetical numbers to River Landon. They represent lost rent, lost value, carrying costs, professional work, and years during which the property could not be put to productive use.
The City may dispute every part of the damages model. But the Council should not confuse “disputed” with “no exposure.” At $641,681 per month, another six months adds approximately $3,850,086. That is the financial choice the Council makes if it authorizes or permits another six months of the same course.
Continued litigation might conceivably vindicate the City’s position. It may also result in an approval order, attorney’s fees, continuing court supervision, damages, and further statutory remedies. A prudent Council should compare that risk with the cost of approving housing the City was required to process ministerially.
We feel quite uncomfortable with any entity owing us this much money. And we submit you should too.
WE DEMAND THAT YOU ISSUE WRITTEN APPROVALS, COMPLIANT WITH SB 35, FOR THE 14 UNIT AND 29 UNIT PROJECTS by August 18, 2026 California’s housing statutes have changed the consequences of local processing delay. River Landon alleges that the duties at issue are ministerial, that the projects are consistent or deemed consistent, and that the City’s continued refusal causes compensable loss. The City disputes those allegations. The Council must now decide whether to continue accepting that risk or to stop it.
Prior, a city didn’t have to be worried about lawbreaking – now, as these state housing reform laws are ministerial – which acts are NOT immune, it should be very concerned (in its care about prudent financial management). City officials should not continue to gamble with the City’s tight income statement, & balance sheet, nor make this determination for any political reasoning – instead, to reduce & mitigate the city’s already alleged significant liability, as the liability is ongoing daily, thus the city has no alternative but to write approvals for the two deemed consistent developments forthwith.
20 4 Statement Of Facts
City prevents processing for just 2 homes, on 0.93 acres 2020 - 2022 The history starts in October 2020. The city would not process a discretionary permit for 2 homes on Coleman Drive on 0.93 acres. Two homes. Many existing homes in the district are on 0.15 acres.
In October 2020 we applied to the city for discretionary permits for two homes, and thus to work together with the city to achieve entitlements, but the city rather than doing that didn’t process the application - claiming that it was ‘not complete’, formally introducing new ‘incomplete’ information requests no less than 7 times over a more than 2 year period – whereas law requires that only a single onetime list of incomplete items can be requested by a city. Govt Code 65943 (a), in force since January 2020, specifies that “In any subsequent review of the application determined to be incomplete, the local agency shall not request the applicant to provide any new information that was not stated in the initial list of items that were not complete.” The incomplete process by a city is limited to 30 days – not 2 years 1 month – 30 days - that’s it.
It took 6 more bites at the cherry than it was allowed by law – just on the documentation standards.
By the time that initial process substantially ended in November 2022, (with a strong assertion by the city that the applicant now switch to another completely different processing regime – start again) the applicant’s and owners project costs (and proposed construction costs) had risen sufficiently significantly during that long period that a larger development would have to be proposed in order for a project at the site to be financially viable.
Submittal of Notice of Intent and SB 35 application May 2023 (during a time that city had no compliant Housing Plan/Housing Element)
After preparation and internal agreement on a new plan, the applicant applied for a by right (rather than discretionary) housing development, at a time that the city had no Housing Element, and subject only to objective planning standards, not subject to local standards, and capable of being amended in the event the city advised of reasonable objective planning standards that the development did not conform to. Given the law breaking – overt law breaking - by the city to that date clearly we had very little trust in the city properly exercising its discretion – no person would trust another party after that – so we selected the ‘by right’ route – no arguments. In addition - the applicant submitted the required documents to benefit from the ‘Builder’s Remedy’, a penalty provision of State law that mandates that if a city has not made the effort to publish a plan for where new housing will go -that written health/safety standards are the only basis on which to deny a housing development. Sounds pretty easy huh? However – and again – city staff ignored the law. The stated intent of SB 35 is to significantly reduce the length of time to process a housing development approval, and, give the developer 21 complete certainty of what will be approved. HCD has now published that the average time to process SB 35 applications is 128 days or thereabouts.
No multiple Planning Commission meetings over years where commissioners express their personal opinion on what would look good or be appropriate. No contests on what may - or may not affect the environment. Just a permit.
But city staff blocked that one too. It has and had a ministerial duty to process the development(s) – ministerially – but never – to this time of writing - carried out its ministerial duty.
City staff pretend to engage in a scoping consultation with Native American tribe To start - it failed to carry out the required scoping consultation per SB 35 (b) - mandated by the Statute - & which includes mandated compliance with carrying out the consult according to the Tribal consultation guidelines.
Kavanaugh-Lynch did not organize any studies, nor reports - improperly trying to shift that burden to the applicant. Kavanaugh-Lynch could make no notes, meeting notes nor any material from the scoping consultation available, & despite a Public Record Act request. Further, on information and belief, the native American tribe in essence elected not to engage in a ‘scoping consultation’ - which it is their absolute right to do – but which under SB 35 means that the city must then start processing an SB 35 submittal.
The city claimed to be undertaking a scoping consultation, but no action points, no activity, no schedule, nor requirements, nor any single action that the city took toward or in the scoping consultation has been (nor can be) identified by the city to the applicant regarding the scoping consultation, despite multiple verbal, written, and Public Records Act request(s) by the applicant & its lawyers for the city to do so. The sole activity that city staff undertook, and advised the applicant of, is that it had a general standing meeting schedule with the local Native American tribe set in advance to discuss matters concerning the city generally- which it stated had the nature of check-ins. A ‘check-in schedule’ is not a scoping consultation.
Actually - city staff schemed to use and used the direct government to government forum implicit in a scoping consultation (in which the applicant could not for this ‘consultation’ by law be involved) to obfuscate and endlessly delay the processing of the housing development application. This endless delay was and is not anything to do with any purported (& cursory) view of city staff that the housing development may not be ‘multifamily’ – this was nothing more than a ruse by the city to delay – and try to defeat the housing application - as the city knew it also had no defense against the next step in the sequence - the by right processing and over which city staff had no latitude.
City staff had not put in the very heavy lift to create objective standards for the residential areas of the city, but if it could (improperly) delay necessarily approving the housing development then 22 it could possibly discourage the applicant sufficiently that the applicant would simply give up – the government – the government – had started & entered into an unlawful war of attrition with an American business.
There were no confidentiality requirements other than not publishing the location of tribal resources in the public square - which exception simply doesn’t apply here – but the city also attempted to hide behind that. California Housing and Community Development Department conducted oversight over the ‘scoping consultation’ with city staff during 2024 describing staff as very difficult to reach, tight lipped, answering in ‘grunts and murmurs’ – with HCD – in its oversight function – formally concluding in December 2024 that city staff were engaging in ‘another version of SB 35 blocking’
The purported scoping consultation – which the city assured the applicant - in writing - it was undertaking - kept the housing project approval process trapped in amber.
Applicant sued the city, and the ‘scoping consultation’ miraculously immediately finished The applicant sued the city in June 2025. And suddenly – the scoping consultation was over, and the applicant’s development processed! What are the odds?! Immediately the prior embargo ceased - the applicant had one meeting with the Native American tribe, the traveling draft passed between all the parties for approximately a week and the agreement was signed, on June 30, 2025. Within a couple of weeks of service of the complaint, and with absolutely nothing in the ‘scoping consultation’ nor the site setting changing, the ‘scoping consultation’ was finished, an enforceable agreement signed with the Native American tribe, and the housing development application under SB 35 put into processing. And it was impossible that city representatives Hinkle (MH) and Margaret Kavanaugh-Lynch (MKL) could have looked any more uncomfortable in the Zoom meeting organizing it’s signing, and seemingly reducing the size of their faces being projected real time to a miniscule size. The meeting was uncomfortable - embarrassing for them actually.
The applicant considered that now would be the end of the obfuscation by the city, that after 5 frustrating years of applying for entitlements to develop the property, that city staff would finally relinquish on the city’s political policy of opposition to housing in the residential zones, the development application would be processed within the mandatory 60 days, and arrangements for grading and preparing the site for desperately needed housing could begin - but boy - was the applicant mistaken:
Processing of the SB 35 development was meant to begin
Processing of the SB 35 development was meant to begin – but it didn’t. The city simply wrote documents throwing inapplicable standards into letters and then – out of the shot clock deadline – purporting to deny the application by using the dishonestly applied inapplicable standards as justification.
23 A yet further opportunity for city staff to continue blocking the housing development, as the facts show. Under the color of law, taking the applicant’s right to use its private property. Different day, slightly different method, but same intent – no politically sensitive housing in the actual residential zones – none, in any of them. But achieving political self-preservation – the motive.
City processing techniques – and not compliant ones
Kavanaugh-Lynch
– generated a confetti of paperwork raising subjective – not objective standards – in, inter alia, an attempt to throw a confusion veto over the approval of the development Further, post hoc pretending that the development was not multifamily, had never been eligible for SB 35, and unilaterally cancelled the application
Kavanaugh-Lynch & Hinkle seized on an curable objective planning standard of ‘multifamily’ as being one the applicant had purportedly not met (despite the city prior documenting that the exact same development HAD met the multifamily standard) while providing no uniform external benchmark for multifamily or ‘attached’ to the applicant, as mandated by the Statute of SB 35 that it had to do, & despite a multiple requests by the applicant to do so, and a promise by staff to do so, falsely claiming the applicant had refused to make any changes (while all evidence shows it was waiting for the city), and, not raising this point & with a code reference until after the deadline(s) for doing so. It then instructed its outside counsel to try to defeat these compliant housing developments, and frankly, apparently instructed them to bamboozle the court with paperwork.
As if the prior scoff lawing were not enough to satisfy its apparent Machiavellian desire, it had undertaken a breathtaking initiative to elevate an objective planning standard to a position that it does not occupy in the Statute – and supported by Nira Doherty outside counsel - that because in the city’s view, a position merely of convenience – and the city without reference to an external unchanging uniform benchmark as is required for that objective planning standards, that because Version 1.0 of the by right development submittal did not contain common walls between units – it made up its own proprietary version of attachment (common walls) and that outside of the deadlines and post-hoc, that it would be able to permanently sabotage the entire process and development in this continued war of attrition against a private American business. But as discussed below, the applicant has the simple right to resubmit to address such a purported inconsistency, and to work to be responsive to city concerns. -pretending to the applicant and the court that the whole development failed on city staff’s erroneous basis and that thus processing was unilaterally cancelled (in contravention of SB 35), and applicant would have to return through the house of horrors by starting all over again as if it were May 2023. It is our position that city staff – with outside counsel - worked to bamboozle the court with this horror fiction.
24 That this would presumably provide another 3 (or more) years of guaranteed paid work for the same city staff did not escape the applicants mind, but that all the while violating the applicant’s State constitutional rights – using government funds from taxpayers, perpetuating unlawful acts, and creating damage to the applicant, its investors - and perpetuating the housing crisis.
In fact, SB 35 specifically contemplates and provides for the applicant to be able to address city staff’s feedback regarding inconsistency, by a simple resubmittal (not re-application or new application nor new vesting/standards dates) 65913.4 (c)(1)(c). While not agreeing with city’s ‘analysis’ (actually obfuscation, and neither was it on time) of multifamily, & attached, because the terms do not have an external unchanging uniform benchmark, nevertheless to respond to the city’s stated concerns, the applicant resubmitted the development with common shared walls on March 20, 2026 (though we disagree with the city’s position).
But City staff YET AGAIN – over and over and over again –– failed to carry out their ministerial duty to approve the development, but rather – you’ve guessed it – documented that the resubmittal (which had the exact same level of details as the planning documents that the city had prior ‘processed’) was ....incomplete - which status, to the mind of the city lawfully ‘halts’ all processing. The City treated the resubmittal as an incomplete new general discretionary application and demanded that the entire process restart.
Abuse of the SB 35 resubmittal by city
On March 24, 2026 MKL – despite the applicant insisting many times in writing it be assigned to a different planner - wrote, thanking the applicant for its recent plan set, but stating that an altogether new application must be submitted - due to the city purportedly denying 14 unit application on December 3, 2025. The email stated “all of these items must be submitted to the City for the application to be considered filed” – despite that the majority of those items were and are irrelevant. Like a bad penny. The email was titled “Coleman Project -Steps needed to submit a new application”. She stated this must include a cover form, and all the items on a General Planning Application Submittal Requirements/Development Checklist (for the greatest part for Discretionary processing, and NOT for SB 35 processing), with a link, which when pressed stated ‘Access denied’. The city submittal requirements documents were not the narrow & specific requirements for SB 35 but for a generalized application, and a principal form was coded as being a January 12 2023 form yet included instructions to use OpenGov, a system only implemented at the city in late Spring 2026. The form, tellingly, demanded signatures from the applicant (and owners) to indemnify the city against damages caused by the city against the applicant, even though such has been prohibited by State law - & until this indemnification was submitted nothing would happen. Of course, damages are a cause in current litigation against the city. Sadly, the city has slid so low that it was attempting to coerce the applicant to waive the damages the city had caused, including by the very email from the city and process. “We’re doing unlawful things, you must respond to those unlawful things, and sign that we will 25 not be liable for damages for those unlawful things - simultaneously”. Truth is stranger than fiction.
Further frustrative letters from Kavanaugh-Lynch
Next, on April 17, 2026 MKL wrote a further letter to the applicant:
- in part repeating - that a completely new application would now have to be submitted to the city. And now – an application to be compliant with city’s updated zoning rules including 2024 updates that were material which the city well knew would force significant re-design of the development(s) of both the 14 and 29 unit projects – one of the very things SB 35’s processing regime was intended and is designed to avoid, then presumably the new impact fees (6 times higher), and for sure to be subject to a score of yet further incomplete statuses (i.e. the development is not being processed during that time),
- describing the statutorily simple March 20, 2026 re-submittal as ‘incomplete’ and subject to a long list of new supposedly required items despite city staff prior processing/accepting/creating a ‘consistency letter(s)‘ for the development that had precisely the same level of detail as the resubmittal, that the city had ‘processed’ (or at least given the impression it had processed) between July & October 2025.
The State housing reform law required a focused consistency review of the proposal submitted to address written feedback—not a restart under a generalized discretionary application checklist and later-adopted requirements.
The document contained 39 links. All the ‘Application Submittal Requirements’ links – 26 links - were broken. A process cannot fairly be described as a clear route forward when most of the referenced routes do not work. The applicant attempted to work through what the ‘Application Submittal Requirements’ hypothetically might be.
MKL requested among many other items not actually required. Some examples from the 100s of items unlawfully requested by her:
- grading & drainage (post entitlement requirements)
-photograph sets (not required to assess whether a project meets objective standards), - notations of colors, types, and manufacturers (not part of any objective standards that are applicable to the development),
-estimated plant materials growth within 3 years (not required to assess whether a project meets objective standards),
-the completion of a form to divide the property into 5 or more lots (the development in fact indicates – and has for 3 ½ years - that the opposite will happen to the lots – that they will be merged) which actually is an Engineering department process prior to a building permit (not planning process) in San Rafael (a post entitlement requirement), 26 -Section E.12.e NPDES MS4 permit Non-LID facilities documents indicating compliance (a possible post entitlement requirement)
-an indemnity be signed by owners and applicants in important part banned by State law - backdoor CEQA processing requirements
and a plethora of further similar demands for reports, studies and documents expressly prohibited from being required by SB 35
and the city communicated that the development would not be processed until such had been submitted. Does this sound familiar?
Kafkaesque & Judge Engoron
A different court case comes to mind (though not in this jurisdiction) in a ruling, Judge Engoron of New York City said New York's review process for a particular new housing application "seems like Rube Goldberg, Franz Kafka, and the Marquis de Sade cooked it up over martinis” and finding all causes for the housing applicant. It is impossible to distinguish between an East Coast Rube Goldberg, Franz Kafka, and the Marquis de Sade and a West Coast Rube Goldberg, Franz Kafka, and the Marquis de Sade –-- perhaps you could help out with that – the difference? The point being - whatever label one gives it, the result is Kafkaesque: a statutory resubmittal intended to answer one stated late objection was converted into a demand to restart through a general-application process containing extensive unrelated requirements.
That the applicant would have to start over at the beginning (as the city stated and documented) with all the multiple additional and irrelevant documentation requirements (beyond the simple resubmittal provided by the Statutory scheme) that such a new application would bring is nonsensical – and clearly an attempted ruse by city staff (and later we discovered, see below, outside city counsel) - but fortunately for the applicant one which the Legislature predicted, and into which the city (again) fell – that if the city fails to issue a compliant consistency & inconsistency letter within 60 days, the development is deemed (by operation of law) to satisfy all objective planning standards. Govt Code 95613.4 (c)(1)(c). Housing developers have begun to refer to this clause as the ‘CIC clause’ (the Kick clause) H6 Notice, and city response
At the same time that this endlessly repeating scoff lawing by the city – in this instance - over a simple applicant re-submittal was going on, the applicant submitted a notice under Govt Code 65589.5 (h)(6). This provision recently yet further strengthened the Housing Accountability Act (an act to hold local government accountable for its failure to approve housing that has caused the housing crisis) by a public notice mechanism where the city must explain and commit to 27 objective bases for its actions in writing and advise the applicant of what if any final steps and information are required for an approval – or, face (yet further) penalties under the HAA.
In response to the H6 notice, the city shifted its explanations and excuses yet again. The city Community and Economic Director (MH) - waiting until the very end of the 90 day H6 period, claimed that:
- actually the SB 35 deadline was 90 days not 60 days to send a consistency/inconsistency letter and/or denial! The law is plain - that the deadlines are 30 days (resubmittal) and 60 days (‘first’ review). Hinkle was in communication with outside counsel. - Thus then – intentionally misrepresenting the law for the umpteenth time – because the deadline of 90 days is applicable where a publicly noticed Brown Act commission or board forum has been called (at a city’s sole election) to further (and not instead) review a development for applicable objective standards. But the city had never chosen that option. Or the development is more than 150 units.
- that the March 20, 2026 resubmittal should have been submitted through the ‘etrakit portal’. But the portal had prior sun-setted for any submittals! and in any event the etrakit portal had NEVER at any prior time allowed submittals/re-submittals for these vacant lots. The Director stated that the applicant had submitted through the etrakit portal multiple times (in part to attempt to justify requiring it to do so again) but in fact the applicant had NEVER submitted through the etrakit portal. There is – in fact - now a new completely different portal - but it does not accept resubmittals! MH was attempting to show that the applicant had not resubmitted – and because it had not resubmitted that the applicant’s development was thus not deemed consistent with all standards by operation of law – but in fact it was.
- Shifting from MKL’s attempts at explanation, that the city had in fact responded to the resubmittal – but by stating it was incomplete and stating that scores of irrelevant studies, reports, documents, and additional proofs were in fact needed before the next review could be started (and then assumedly another magic ‘scoping consultation’ etc.). MH provided an explanation, conflicting with his own statements in the same communication, & shifting from MKL’s prior written demands regarding March 20, 2026 resubmittal, and:
- that would be a new application, and provided a link to the document requirements.
Hinkle’s response to the formal (H)(6) notice specifically invoked these completeness requirements, referencing the SB 35 application. No attempt was made by the city to define specifically SB 35 data and documentation requirements - & no such new 28 submittal is any event required. Thus MH was additionally stating – in addition to other explanations - that the development had been submitted & accepted - but was incomplete. - OR, that the applicant could submit a ‘Revised (SB 35) application (a resubmittal) BUT that all incomplete items previously identified by the City as incomplete (see the tortuous unlawful demands of MKL above on ‘incompleteness’) must be submitted - and - those to be submitted through the defunct e-trakit.
The July 1 response offered several inconsistent descriptions of what River Landon was supposed to do next. It stated or suggested that:
• the March 20 submission was not a valid resubmittal;
• River Landon had to file a wholly new application;
• the City had nevertheless reviewed the March 20 submission for completeness; • a revised submission should be made through eTRAKiT; and • all generalized completeness items (including a plethora of discretionary processing items) first had to be provided.
River Landon contends that eTRAKiT had been retired for new submissions (per city memoranda) and, had never accepted these vacant-land applications, while the replacement portal did not provide a functioning resubmittal path for the pending SB 35 project.
A response that provides several mutually inconsistent routes is not a clear instruction. It is another confusion veto. (And assumedly the city would then further be able to use the ambiguity later against the applicant)
Judge Engoron’s pithy public pronouncements again came to mind.
Thus, the city’s required response to the HAA 65589.5 (h)(6) is not even close to complying with the law. It simply attempted to introduce the confusion veto again, to muddy the waters (which SB 35 was created to stop), it attempts in bad faith to rewrite the statutory scheme (claiming 90 days not 60 days) and to continue in the – you’ll be familiar by now- endless loop and - falsely encourage the applicant ‘that the applicant has to do just one more round and it will very likely get a permit’ (then one more, and one more etc., apply under a different law, just send us one more document set, just follow one more new checklist)
But we are not Charlie Brown. And very far from it.
The July 1 response did not satisfy the HAA. It did not state that the City would cease the challenged conduct. It did not identify a clear and lawful route to the next approval. And it did not resolve the specific defects River Landon placed before the City. And the city’s conduct challenged in the originating H(6) notice continued and continues. 29 The attached line-by-line comparison identifies:
• eleven rows in which the City used the September 6 plan set to defend the earlier August 27 determination, with no basis;
• 25 cross-references to sections that do not exist;
• two facial date errors;
• one citation to the wrong document;
• three conceded findings; and
• maintenance of the incorrect position that the city does not need to make consistency and inconsistency communication.
More fundamentally, the response devoted itself to defending past conduct rather than opening a lawful path forward. River Landon will not enter another endless loop. – this was EXACTLY where the applicant was in December 2020 (see history) – just provide some more documents – and according to the city – still is, at the time of writing more than five and a half years later. As a result of the unlawful actions of the city in processing applications, and SB 35 development(s), the applicant has suffered and continues to suffer very substantial damages.
And the city attempts to drag the applicant, the investors, the ultimate occupiers of the new affordable housing, and ultimately- the court itself - into its web of a continued horror comedy.
It is noted that ‘incomplete status’ is and remains one of the principal ‘go to;s’ of San Rafael to effectively block all development in the residential zones.
Very tellingly – the official Annual Production Reports show that the city has approved just one 1 new ‘vacant lot’ home in the residential zones in the last 2 ½ years - with roughly 24,500 homes this represents a new home approval rate of 0.004% (that’s not even 0.4% - that’s 1/245 th of one (1) percentage point). A textbook example of a moratorium. If it acts like a duck, walks like a duck, and quacks like a duck – it’s a duck. And it’s a moratorium.
In fact - the position in law is that the March 20, 2026 resubmittal is deemed consistent with all objective planning standards including multifamily, and attached– all of 65913.4 (a) - as a matter of law.
Pattern, practice and political policy:
Conduct of Community and Economic Development Director Hinkle Community and Economic Development Director Micah Hinkle has repeatedly expressed positions demonstrating opposition to development of the Coleman Drive property and resistance to State housing mandates.
30 In a documented meeting with representative of Plaintiff on July 25, 2024, Hinkle stated:
“I think you realize the challenge of Coleman. These are paper lots, done back in a recorded map era.”
He referred to “problems” with “lot access”, “problems with these lots”, “steep slope of the lots”, and “nobody has built on these lots.”
He stated: “This area is challenging, right? Utilities. Access. Approach. This is just a difficulty of this parcel of why it’s been vacant basically forever. The slope on it, slope and access, right? You know it, I know it. If you look at our hillside guidelines… it’s a difficult project. There isn’t really a lot of developable land in San Rafael.”
But in fact, the lack of development reflects the city’s resistance to housing in single-family zones rather than any inability to construct housing.
Hinkle continued: “They slated a lot of housing. Northgate, downtown.” But - those are not the residential zones. Hinkle quotes success in approving housing – but he scores an own goal– it’s all in the downtown/commercial zones. He makes our point.
SB 35 specifically and intentionally prohibits processing a qualifying project based on generalized concerns regarding utilities, access, site approach, slope, neighborhood preference, or a city official’s view of where housing “makes sense.” These statements identify generalized concerns about the historical lots, slope, utilities, access, and the City’s preferred locations for housing. River Landon contends that those generalized judgments cannot substitute for application of the specific objective standards governing a qualifying ministerial project.
The issue is that the City used those concerns to avoid the objective, time-limited review required by State law.
Conduct of Mayor Catherine “Kate” Colin
Defendant Mayor Catherine “Kate” Colin has publicly articulated the city’s housing policy – see above.
Projects downtown.
Projects near transit.
Projects in commercial zones.
31 Projects that preserve hillside “community feel”.
Not Plaintiff’s residentially zoned hillside property.
Not objective standards.
We pick the projects.
Expectations.
Community framework.
Planning philosophy.
Discretion.
The General Plan and its associated Environmental Impact Report state that the General Plan EIR project concentrates growth in existing urbanized areas and thereby results in fewer impacts from expansion of infrastructure into undeveloped greenfield areas; includes policies to protect hillsides; includes new policies to maintain dark skies; includes planning to reduce driving; sustains protection of local open space; supports goals related to neighborhood character and quality of life; encourages low-impact development; and promotes expedited infill development [specifically – author’s note] in the Downtown area.
Our project site — a large undeveloped hillside site overlooking 101, between otherwise developed lots — an urban infill project as SB 35 intended and mandates - is often referred to in San Rafael, or confused with, open space. It is a perfect example of the San Rafael hillsides, which the City’s General Plan states is not a place to build.
For a project at Irwin St, which city staff stated in the public meeting meets all standards (after Margaret Kavanaugh-Lynch interestingly no longer worked on the project), ‘She (Colin, Mayor) said San Rafael stands to thrive with more people living downtown, but she’s also frustrated at state housing laws that have limited cities’ abilities to negotiate with developers to reach compromises”. Ergo - she voted to deny the lawful compliant application. March 26, 2026 article.
So – she took the law into her own hands and broke it. Contrastingly, Eli Hill, Council Member, did not sustain the appeal, allowing the lawful approval to stand – he said that housing laws in the Assembly and Senate need to change (in his opinion) – but he didn’t break the law.
That then — the General Plan – community feel – community input – extracting compromises from developers for the city’s coffers— is the housing policy of Mayor Catherine “Kate” Colin.
Not the law. But this time that lawbreaking catalyzes consequential damages to property owners and applicants.
32 And, following the useful adage “believe what you see, not what people say”, Table 1 of the numbers of housing units approved and where tells the reader all he or she needs to know about the results of that housing policy – the actual housing policy of the city – not the statements of assurance from city staff. Sometimes declared publicly – signaling to the voters –a behind the scenes policy being executed by residential zone planning permit obfuscation and denials – and more than clearly demonstrated in the results.
Conduct of Planning Manager Margaret Kavanaugh-Lynch
Margaret Kavanaugh-Lynch has engaged in a pattern and practice of denying and delaying lawful housing development applications.
Other housing project applications have suffered the same treatment under Kavanaugh-Lynch.
Regarding one such project – the same Irwin Street project referenced in this document - Kavanaugh-Lynch wrote on September 12, 2025 that “the City concluded that the Project is not eligible for the streamlined ministerial review process.” Kavanaugh-Lynch wrote a mirror-image letter to those Plaintiff has received — copious Word tables alleging that city standards were not met. We now know this was in cooperation with outside counsel.
After that applicant managed to persuade the city to assign a different planner - the city approved the project weeks later.
Public statements by Kavanaugh-Lynch illustrate the city’s reluctance to implement State housing mandates. During a documented San Rafael City Council study session on February 6, 2026, Kavanaugh-Lynch stated:
“The shift and the speed with which projects are now mandated for approval has… left staff unsure on how to move forward.”
A February 8, 2026 article in the Marin Independent Journal reported that San Rafael staff were seeking guidance from the City Council regarding how to respond to State laws requiring ministerial approval of housing developments.
But if city staff were complying with the law - it is obvious how to respond! - Approve the qualifying development.
That is the duty.
These statements reflect both resistance within the city’s planning department to implementing State laws that mandate ministerial approval of qualifying housing developments, and that city staff openly wonder whether they should follow the law. And if city staff are prepared to take that risk openly – one assumes that they say, and do, much more in private.
Despite several written requests by Plaintiff and Plaintiff’s legal representatives, the city has refused to assign a different planner to Plaintiff.
33 And the city has refused to issue an approval(s) for the development(s) The statement reflects the difficulty staff perceived in adapting to State laws requiring faster and by ministerial review. River Landon’s point is direct: implementation difficulty does not extend statutory deadlines or permit staff to continue using a discretionary-review model after the Legislature has removed that discretion.
The closed loop
The substantive premise is not about fences, or trees, or the Housing Crisis Act, or what “attached” means, or whether lighting is placed at 14 feet instead of 15 feet.
It is about the closed loop the city has put the applicant into – due to its clearly stated political policy.
Whatever the applicant does, the city responds with a letter that:
a) misrepresents facts (a screen is a fence, the applicant refuses to change anything); b) states that thus the development is not compliant; and c) has the effect of blocking processing.
The applicant then prepares another document, often very time consuming and expensive to produce, and around the loop the applicant goes again.
And now for five and a half years:-
Misrepresentative letter.
Applicant submits a new document.
Misrepresentative letter.
Applicant submits a new document.
Misrepresentative letter.
Applicant submits a new document.
Etc. etc. etc. etc.
City letter. Applicant response. New City letter. New demand. No approval.
River Landon responds to the stated issue. The City then recharacterizes the plans, identifies another requirement, relies on a different plan set, or directs River Landon to another process.
The application remains unapproved. (Just like the Menlo Park project) 34 SB 35’s fixed deadlines, contemporaneous-documentation requirement, and deemed-consistency consequence were enacted to prevent precisely this continual loop.
That is the city’s process. That is unlawful action by the city that has improperly and unlawfully prevented the issuance of an approval letter, and, led to damages.
This is a political policy of denying housing in the residential single-family zones1 The city has engaged, and continues to engage, in a pattern, practice and policy of denying property owners in the residential single-family zones their protected property interests, including Plaintiff.
This is not speculation. This is visible in the numbers. 1 NOTE:- City counsel have attempted to conflate our statements about the single-family zones with our development application. (‘As the applicant said it’s in the single family zones, and by counsel’s improper extension - its ‘single family’ - or words to that effect) Our application(s) are and have always been for multifamily housing in the residential family zones, and specifically multifamily housing in the single family zones as per SB 35.
According to the city’s own state-mandated annual housing production reports, during the highly delayed processing of the applicant’s development, only two homes were approved in the singlefamily zones, while 913 homes were approved in the commercial zones — zones that comprise roughly only one-tenth the land area of the residential single-family zones. That is a factor of 4,570 - FOUR THOUSAND FIVE HUNDRED AND SEVENTY times. 4,570 times the housing has been approved in the downtown/commercial zones. The city doesn’t build housing MKL stated. Gosh.
And in 2024, when the applicant’s development could readily have been approved, the factor was infinite. San Rafael really had it in for housing in the residential single family zones that year didn’t it.
Year
Approvals
outside singlefamily zones
Percentage
of city
Percentage
of approvals
Approvals
within singlefamily zones
Percentage
of city
Percentage
of approvals
2023 162 3.9% 99.4% 1 33.2% 0.6%
2024 204 3.9% 100% 0 33.2% 0%
2025 547 3.9% 99.8% 1 33.2% 0.1%
Table 1. The disparity is extraordinary.
The city took in a score of applications for housing in the residential single-family zones. Only 2 saw the light of day. But as if by a miracle, every application submitted for housing in the quiet downtown/commercial zones was efficiently, and in most cases rapidly, approved. 35 The percentages are entirely dispositive of the city’s unlawful housing policy, and are unlawful under State law and the Federal Fair Housing Act. River Landon reserves all legally supported claims concerning unequal treatment/fair-housing obligations. This memorandum relies on the geographic figures principally as evidence relevant to City policy and pretext.
The applicant cannot up stakes and move the subject lots to the downtown area. 36 5 Statutes & Statutory scheme(s) to which the
developments are subject and protected:
River Landon’s developments are subject to the following (inter alia) Statutes, including the powerful protections of the HAA:
Permit Streamlining Act:
Concerning discretionary applications from October 2020 to November 2022 the Permit Streamlining Act controls. The Legislature describes the intent of the Permit Streamlining Act, Gov. Code § 65921
“The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects. Consequently, the provisions of this chapter shall be applicable to all public agencies, including charter cities.” The Act, at Govt Code 65943 (a) enacted in January 2020, after an initial completeness review states “in any subsequent review of the application determined to be incomplete, the local agency shall not request the applicant to provide any new information that was not stated in the initial list of items that were not complete.”
The California Supreme Court explains the Act in Bickel v. City of Piedmont :
“In 1977, the Legislature enacted the Permit Streamlining Act … to relieve applicants from protracted and unjustified governmental delays in processing their permit applications.. [T]he Act protects applicants from the caprice and arbitrariness associated with protracted and unjustified delays by the government.”
Turning now to the ministerial application May 15, 2023 – & - the Housing Accountability Act The Housing Accountability Act – Govt Code 65589.5 was enacted to impose accountability on local governments – & has the following intent:-
Gov. Code, § 65589.5(a)(1)(B)
“California housing has become the most expensive in the nation. The excessive cost of the state’s housing supply is partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing.” 37 Gov. Code, § 65589.5(a)(1)(D)
“Many local governments do not give adequate attention to the economic, environmental, and social costs of decisions that result in disapproval of housing development projects, reduction in density of housing projects, and excessive standards for housing development projects.”
Gov. Code, § 65589.5(a)(2)(A)
The Legislature made crisis findings (using the same language that describes a natural disaster) “California has a housing supply and affordability crisis of historic proportions. The 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.” Gov. Code, § 65589.5(a)(2)(K):
“The Legislature’s intent in enacting this section in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing for all economic segments of California’s communities (emphasis added) 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(a)(2)(L):
“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.”
Builder’s Remedy
SB 35 Applications can be & are subject to the “Builder’s Remedy” – a penalty against local government for not making plans for housing - and a powerful provision for developers:
Gov. Code § 65589.5(f)(6)(F)(ii):
“A builder’s remedy project shall be deemed to be in compliance with the objective zoning standards, objective subdivision standards, and objective design review standards for the 38 purposes of complying with paragraph (5) of subdivision (a) of Section 65913.4.” § 65913.4(a)(5).
There we have it. This provision moots all misrepresentations by a city about consistency with General Plan and zoning standards.
It is – for non-compliant cities – for cities that have failed to carry out their duty timely - the ‘nuclear option’.
Gov. Code § 65589.5(d)(5):
Zoning code/planning standards/general plan inconsistency is a valid denial finding only when the jurisdiction had a substantially compliant revised housing element on the deemed-complete date or date when a preliminary application or notice of intent is filed. The following citations lay out the rules. The local government does not have to apply the Builder’s Remedy if:
“On the date an application for the housing development project or emergency shelter was deemed complete, the jurisdiction had adopted a revised housing element that was in substantial compliance with this article, and the housing development project or emergency shelter was inconsistent with both the jurisdiction’s zoning ordinance and general plan land use designation…”
Otherwise – it does have to apply the Builder’s Remedy – no local zoning rules.
Gov. Code § 65589.55(a):
As to applicability of Builder’s Remedy, relevant dates relating to Housing Element certification for above for vesting includes when a preliminary application (and/or Notice of Intent) has been filed (and the local government doesn’t have an HCD certified Housing Element):
“For purposes of a local agency’s approval, conditional approval, or disapproval of a housing development project pursuant to subdivision (d) of Section 65589.5, a housing element or amendment shall be considered in substantial compliance with this article only if the element or amendment was in substantial compliance, as determined by the department or a court of competent jurisdiction, when a preliminary application, including all of the information required by subdivision (a) of Section 65941.1, was submitted” Gov. Code § 65913.4(a)(5)
Then, this is the SB 35 provision that the Builder’s Remedy cross-reference plugs into.
Normally, SB 35 requires consistency with objective zoning, subdivision, and design-review standards. But under § 65589.5 (f)(6)(F)(ii), a Builder’s Remedy project is deemed compliant with those standards for this SB 35 purpose.
39 In the event there was even a scintilla of doubt about the applicability of the builder’s remedy provision – which is a suspension of all local zoning code – that, for example, the city managed to push the application ‘out of’ Builder’s remedy misrepresenting that it was running a scoping consultation – the date used for the existence or otherwise of a compliant city Housing Element (with no certified Housing Element on that date, Builder’s Remedy applies) is the date of the Notice of Intent:
“The development … is consistent with objective zoning standards, objective subdivision standards, and objective design review standards ….”“…in effect at the time that the development is submitted … or at the time a notice of intent is submitted pursuant to subdivision (b), whichever occurs earlier.”
And finally on this, coming full circle in SB 35 itself:
Gov. Code § 65913.4(j)(2):
SB 35 applications are explicitly protected by the Housing Accountability Act, including the Builder’s Remedy codified within the Housing Accountability Act:
“This section shall not prevent a development from also qualifying as a housing development project entitled to the protections of Section 65589.5. This paragraph does not constitute a change in, but is declaratory of, existing law.” H6 provisions for local government’s errant conduct:
As to actions by local government such as harassment of the applicant by local government (yes – now codified in State law), government actions causing unnecessary delay or needless increases in cost, the HAA was further enhanced to add:
Gov. Code § 65589.5(h)(6)
“‘Disapprove the housing development project’ includes any instance in which a local agency does any of the following:”
“(E) Fails to cease a course of conduct undertaken for an improper purpose, such as to harass or to cause unnecessary delay or needless increases in the cost of the proposed housing development project, that effectively disapproves the proposed housing development without taking final administrative action if all of the following conditions are met:” Required notice by applicant — § 65589.5(h)(6)(E)(i)
“The project applicant provides written notice detailing the challenged conduct and why it constitutes disapproval to the local agency established under Section 65100.” 40 City posting requirement — § 65589.5(h)(6)(E)(ii)
“Within five working days of receiving the applicant’s written notice described in clause (i), the local agency shall post the notice on the local agency’s internet website, provide a copy of the notice to any person who has made a written request for notices pursuant to subdivision (f) of Section 21167 of the Public Resources Code, and file the notice with the county clerk of each county in which the project will be located.”
“The county clerk shall post the notice and make it available for public inspection in the manner set forth in subdivision (c) of Section 21152 of the Public Resources Code.” City must consider comments and wait at least 60 days — § 65589.5(h)(6)(E)(iii) “The local agency shall consider all objections, comments, evidence, and concerns about the project or the applicant’s written notice and shall not make a determination until at least 60 days after the applicant has given written notice to the local agency pursuant to clause (i).” City must respond within 90 days — § 65589.5(h)(6)(E)(iv) “Within 90 days of receipt of the applicant’s written notice described in clause (i), the local agency shall issue a written statement that it will immediately cease the challenged conduct or issue written findings that comply with both of the following requirements:” “(I) The findings articulate an objective basis for why the challenged course of conduct is necessary.”
“(II) The findings provide clear instructions on what the applicant must submit or supplement so that the local agency can make a final determination regarding the next necessary approval or set the date and time of the next hearing.”
Burden / final administrative action consequence — § 65589.5(h)(6)(E)(v):
“(I) If a local agency continues the challenged course of conduct described in the applicant’s written notice and fails to issue the written findings described in clause (iv), the local agency shall bear the burden of establishing that its course of conduct does not constitute a disapproval of the housing development project under this subparagraph in an action taken by the applicant.” “(II) If an applicant challenges a local agency’s course of conduct as a disapproval under this subparagraph, the local agency’s written findings described in clause (iv) shall be incorporated into the administrative record and be deemed to be the final administrative action for purposes of adjudicating whether the local agency’s course of conduct constitutes a disapproval of the housing development project under this subparagraph.”
The Legislature introduced yet further legislation, to penalize such acts by local government:
41 Following those actions that the city undertook, as to (H)(6) above, under the Housing Accountability Act, the penalties/remedies for an improper disapproval of a housing development project are primarily in Gov. Code § 65589.5(k)–(l).
Gov. Code § 65589.5(k)(1)(A)(i):
Enforcement trigger — improper disapproval / post-vesting standards / Builder’s Remedy “If, in any action brought to enforce this section, a court finds that any of the following are met, the court shall issue an order pursuant to clause (ii):” “The local agency, in violation of subdivision (d), disapproved a housing development project … without making the findings required by this section.” “The local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria … without making the findings required by this section.” “The local agency, in violation of subdivision (o), required or attempted to require a housing development project to comply with an ordinance, policy, or standard not adopted and in effect when a preliminary application was submitted.” “The local agency violated a provision of this section applicable to a builder’s remedy project.”
Gov. Code § 65589.5(k)(1)(A)(ii):
Mandatory court order — compliance within 60 days
“The court shall issue an order or judgment compelling compliance with this section within a time period not to exceed 60 days…”
Gov. Code § 65589.5(k)(1)(A)(ii):
Approval order if bad faith is found
“The court may issue an order or judgment directing the local agency to approve the housing development project … if the court finds that the local agency acted in bad faith…”
Gov. Code § 65589.5(k)(1)(A)(ii):
Attorneys’ fees and costs
“The court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner…” 42 Gov. Code § 65589.5(k)(1)(B):
Minimum fine — $10,000 per unit
“Upon a determination that the local agency has failed to comply with the order or judgment … the court shall impose fines…”
“The fine shall be in a minimum amount of ten thousand dollars ($10,000) per housing unit in the housing development project…”
Gov. Code § 65589.5(k)(1)(C):
Further order / deemed approval if the City still does not comply “If the court determines that its order or judgment has not been carried out within 60 days, the court may issue further orders … including … an order to vacate the decision of the local agency and to approve the housing development project…”
“…the application … shall be deemed to be approved unless the applicant consents to a different decision or action by the local agency.”
Gov. Code § 65589.5(l):
Bad-faith multiplier — 5x
“If the court finds that the local agency (1) acted in bad faith when it violated this section and (2) failed to carry out the court’s order or judgment … the court … shall multiply the fine … by a factor of five.”
Gov. Code § 65589.5(l):
The definition of bad faith
“‘Bad faith’ includes, but is not limited to, an action or inaction that is frivolous, pretextual, intended to cause unnecessary delay, or entirely without merit.” ADU law
Gov. Code §66317(a)(3)
If the local agency has not approved or denied the completed application within 60 days, the application shall be deemed approved
The city did not write, nor state, that it wished to delay approving or denying ADU permits.
Neither did in allege any ADU application(s) were incomplete. (In fact, it misstated the provisions for when applying for multifamily housing, mischaracterizing the application) 43 Streamlined Ministerial Approval Process - SB 35
Due to the continuing housing crisis in California, in 2017 the Legislature enacted a statutory scheme that removed the power of local government to engage in certain housing approval processes, removed the applicability of CEQA (often the cause of very significant delay to approvals) specifically to urban infill housing, removed the authority of elected City Councils to review projects, removed the authority of Planning Commissions to apply personal and subjective opinions to the approval of housing, and made approvals subject to only externally referenceable objective standards known at application time, all these in order to provide absolute certainty to the housing development proponent. The Legislature removed developments submitted under this law from the political process – the Statute removed that power from City Councils.
Gov. Code § 65913.4(a)(5):
SB 35 limits the City to objective zoning, subdivision, and design-review standards only. It also fixes those standards at the earlier of the SB 35 application or the Notice of Intent:
“The development … is consistent with objective zoning standards, objective subdivision standards, and objective design review standards in effect at the time that the development is submitted … or at the time a notice of intent is submitted … whichever occurs earlier.” Gov. Code § 65913.4(a)(5):
A supposed standard is not objective unless it has an external, uniform benchmark known before submittal. If the City has “various views” about what the standard means, that is the opposite of an SB 35 objective standard:
“’Objective zoning standards,’ ‘objective subdivision standards,’ and ‘objective design review standards’ mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official before submittal.”
Gov. Code § 65913.4(b)(1)(A)(ii):
The City, not the applicant nor any other party, has the statutory duty to conduct the SB 35 scoping-consultation process after receiving the Notice of Intent. The City cannot shift that ministerial duty to the applicant nor to any other party including the Native Tribe and then use the city’s own delay as the reason processing or scoping consultation did not occur:
“Upon receipt of a notice of intent … the local government shall engage in a scoping consultation regarding the proposed development with any California Native American tribe….”
Also see section here governing when the Native American tribe elects not to engage after accepting the invitation to conduct a scoping-consultation.
Gov. Code § 65913.4(b)(7)(A); Tribal Consultation Guidelines:
SB 35 expressly incorporates the State Tribal Consultation Guidelines’ best practices. Those Guidelines put the process on the local government: contact, notice, referral, consultation, records, and management of the consultation process:
44 “A lead agency shall consult the tribal consultation best practices described in the ‘State of California Tribal Consultation Guidelines: Supplement to the General Plan Guidelines’….”
“SB 18 established responsibilities for local governments to contact, and consult with tribes.” SB-18-Tribal-Consultation-Guide.
Tribal Consultation Guidelines:
The Guidelines contemplate that the local government provides the project information, technical documents, maps, cultural-resource materials, archaeological summaries, and grading or grounddisturbance information needed for meaningful consultation. The City cannot treat scoping as a blank box while providing no action points, no documentation, no reports, and no record of what it did:
“Relevant technical documents should be provided with a concise explanation that clearly describes the proposed … plan … and its potential impacts on cultural resources” “Technical reports, including summaries of cultural resource reports and archaeological reports …”
Tribal Consultation Guidelines:
The Guidelines contemplate that the local government may use professionals and conduct record searches to develop the technical, factual, legal, cultural, and archaeological information needed for consultation. That supports the point that the City, as lead agency, must actively manage and document scoping — not merely report “check-ins”:
“The services of other professionals (attorneys, contractors, or consultants) may be utilized to develop legal, factual, or technical information necessary to facilitate consultation.” Tribal Consultation Guidelines:
The Guidelines expect documentation of consultation activity. This is directly relevant where the City cannot identify meetings, action items, written records, unanswered correspondence, or any actual scoping activity during a more than two-year period:
“Both parties should attempt to document the progress of consultation, including letters, telephone calls, and direct meetings”
“Both parties should maintain clear records of communications, including letters, telephone calls, and faxes.”
45 Tribal Consultation Guidelines:
Consultation is much more than a schedule of check-ins. The Guidelines also emphasize that a consultation has a focus on potential or actual resources that have in fact been identified (not just a general conversation)
“Consultation is a process in which both the tribe and local government invest time and effort into seeking a mutually agreeable resolution for the purpose of preserving or mitigating impacts to a cultural place, where feasible.” Tribal Consultation Guidelines:
The Guidelines use the word should (rather than shall) on occasion - the Guidelines regulate the local government and cannot in fact regulate the Native American nation – the way that is dealt with is that SB 35 provides for that – Govt Code 65913.4 (b)(3)(B) “tribe….substantially failed to engage in the scoping consultation after repeated documented attempts by the local government to engage the California Native American tribe” then the applicant qualifies for SB 35 streamlined processing.
If the tribe substantially fails to engage, the process is not at all that the Tribe will be compelled – simply, the SB 35 application processing begins.
This explanation is provided to counter any local government point that ‘some of these processes in the Tribal Consultation Guidelines are not mandatory’ Tribal Consultation Guidelines:
“Tribal consultation should be done face-to-face. If acceptable to both parties, local and tribal governments may wish to define circumstances under which parts of the consultation process can be carried out via conference calls, e-mails, or letters” Tribal Consultation Guidelines:
The Tribal Consultation Guidelines make scores of references to consultations being required to be undertaken in good faith by both local government and the Native American tribe Gov. Code § 65913.4(b)(1)(A)(iii), (b)(7)(A)–(B):
SB 35 requires a fast and structured scoping process: notice within 30 days, tribe response within 30 days, and commencement within 30 days after acceptance. As importantly, the process must be meaningful and timely, and scoping means early discussions or investigations:
“The local government shall provide a formal notice … within 30 days of receiving that notice of intent.”
“Each California Native American tribe … shall have 30 days … to accept the invitation….”)
46 “The local government shall commence the scoping consultation within 30 days of receiving that response.”
“‘Consultation’ means the meaningful and timely process….” “‘Scoping’ means the act of participating in early discussions or investigations….” Tribal Consultation Guidelines:
The Guidelines confirm that merely sending letters or checking in is not consultation. A “checkin schedule” without identified issues, records, technical exchange, documented consultation activity is not a bona fide scoping consultation:
“Simply notifying a tribe of a plan proposal is not the same as consultation” SB-18-TribalConsultation-Guide… “Written correspondence requesting consultation with a tribe was not sufficient … telephone calls or more direct forms of contact may be required.” SB-18-Tribal-Consultation-Guide… Gov. Code § 65913.4(b)(3)(A)–(B):
If the tribe does not accept, or accepts but then substantially fails to engage after repeated documented attempts by the City, the City may accept the SB 35 application. This prevents the consultation requirement from becoming an indefinite City-controlled embargo:
“A local government may only accept an application … if [various]… [O]r [Native American Tribe… substantially failed to engage in the scoping consultation after repeated documented attempts by the local government….”
Gov. Code § 65913.4(b)(2)(D):
Scoping is deemed concluded when there is an enforceable agreement, or when one or more parties acting in good faith and after reasonable effort conclude agreement cannot be reached. It is not a process the City may leave unresolved for years:
“A scoping consultation shall be deemed to be concluded if … [t]he parties … document an enforceable agreement….”
Gov. Code § 65913.4(b)(1)(D); Tribal Consultation Guidelines:
Confidentiality is not a blanket privilege over the existence, timing, administration, or documentation of the City’s scoping consultation actions. Confidentiality solely protects sensitive cultural-place and archaeological-site location information where resources actually exist;. The City may protect specific site information while still documenting what it did, when it did it, whether consultation was actually occurring, & share that with the applicant/owners:
“The participants to a scoping consultation … shall comply with … confidentiality requirements” being “[R]ecords of Native American graves, cemeteries, and sacred places …” …of course, in the event that there actually are such graves, cemeteries, sacred places and similar.
47 “Local governments should avoid including any specific cultural place information within CEQA documents … or staff reports….” SB-18-Tribal-Consultation-Guide.
Gov. Code § 65913.4(c)(1)(A):
For projects of 150 units or fewer, the City has 60 days to issue a legally compliant inconsistency letter. That letter must identify the specific objective standard and explain the specific conflict:
“[T]he local government … shall provide the development proponent written documentation of which standard or standards the development conflicts with, and an explanation for the reason or reasons….”
“Within 60 days of submittal … if the development contains 150 or fewer housing units.” Gov. Code § 65913.4(c)(2):
If the City fails to issue the required written documentation on time, the development is deemed to satisfy the objective planning standards. This is the core SB 35 consequence for a defective or missing consistency letter:
“If the local government’s planning director or equivalent position fails to provide the required documentation pursuant to paragraph (1), the development shall be deemed to satisfy the objective planning standards specified in subdivision (a).” As per the findings in in Govt Code 65589.5(a)(2)(K) the legislation’s purpose is “to significantly increase the approval and construction of new housing… That intent has not been fulfilled.” Thus, the Legislature has begun to introduce penalties, fines and consequences for local governments – this deemed by operation of law to satisfy is one such introduced provision.
Gov. Code § 65913.4(a)(1), (c)(1)(C):
“Multifamily” is listed as one of SB 35’s objective planning standards (as the Court’s order states) - and a claimed conflict with that standard is addressable by resubmittal. If the applicant resubmits to address written feedback — including by adding shared walls — the City has 30 days to respond, not a right to demand a brand-new application:
“The development is a multifamily housing development that contains two or more residential units.”
“Within 30 days of submittal of any development proposal that was resubmitted to address written feedback provided by the local government pursuant to this paragraph.” Gov. Code § 65913.4(f)(1)–(2):
48 The City cannot require studies, reports, extra materials, or post-entitlement compliance before SB 35 approval unless directly tied to determining consistency with objective standards. That blocks pre-approval demands for grading, drainage, NPDES, CEQA-style transportation analysis, building-permit-level information, and similar post-entitlement material:
“A local government shall not require … [s]tudies, information, or other materials that do not pertain directly to determining whether the development is consistent with the objective planning standards….”
“[Nor] [c]ompliance with any standards necessary to receive a postentitlement permit.” Gov. Code § 65913.4(c)(3):
The City cannot reject the project merely by saying it wants more materials if the application contains substantial evidence of consistency. The standard is whether a reasonable person could conclude the project is consistent:
“A development is consistent … if there is substantial evidence that would allow a reasonable person to conclude that the development is consistent….” “The local government shall not determine that a development … is in conflict … on the basis that application materials are not included, if the application contains substantial evidence….”
See also HCD technical assistance letters in this document that go into considerable detail on this subject
Govt Code 65913.4 (a)
“may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (c) and is not subject to a conditional use permit or any other nonlegislative discretionary approval if the development complies with subdivision (b) and satisfies all of the following objective planning standards:” The Statute continues - listing all the objective planning standards, from multifamily, urbanized area, residential zoning, below market rate housing, objective zoning standards, objective subdivision standards, objective design review standards, not prime farmland etc. It does not distinguish between any of these – they are all simply “objective planning standards” 65913.4 continues Govt Code 65913.4 (c)
“(c)(1) Notwithstanding any local law, if a local government’s planning director or equivalent position determines that a development submitted pursuant to this section is consistent with the objective planning standards specified in subdivision (a) and pursuant to paragraph (3) of this subdivision, the local government shall approve the development.
Upon a determination that a development submitted pursuant to this section is in conflict with any of the objective planning standards specified in subdivision (a), the local government staff or relevant local planning and permitting department that made the determination shall provide the development proponent written documentation of which standard or standards the development conflicts with, and an explanation for the reason or reasons the development conflicts with that standard or standards, as follows:
49 (A) Within 60 days of submittal of the development to the local government pursuant to this section if the development contains 150 or fewer housing units. (B) Within 90 days of submittal of the development to the local government pursuant to this section if the development contains more than 150 housing units. (C) Within 30 days of submittal of any development proposal that was resubmitted to address written feedback provided by the local government pursuant to this paragraph” The applicant resubmits to address written feedback provided by the local government on ANY standard in (a). All the standards in a) are, and explicitly, objective planning standards.
Gov. Code 65913.4 (c)(2):
“(2) If the local government’s planning director or equivalent position fails to provide the required documentation pursuant to paragraph (1), the development shall be deemed to satisfy the objective planning standards specified in subdivision (a)” Gov. Code § 65913.4(d)(1):
The 90-day period (as compared to the 60-day period) is in fact to provide for objective design review by a board or commission and only in the event the City chooses to use that process, and – also per HCD - is subject to public notice requirements; and, it does not replace the 60-day (150 units or fewer) consistency-letter requirement - it in fact supplements it (and doesn’t replace it).
“(d)(1) Any design review of the development may be conducted by the local government’s planning commission or any equivalent board or commission responsible for design review…. That design review shall be completed, and if the development is consistent with all objective standards, the local government shall approve the development as follows and shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section or its effect, as applicable: (A) Within 90 days of submittal of the development to the local government pursuant to this section if the development contains 150 or fewer housing units”
Gov. Code § 65913.4(u):
SB 35 contains its own pro-housing interpretive command. Any ambiguity over “multifamily,” attachment, timing, resubmittals, objective standards, or processing must be resolved with the fullest possible weight toward housing approval and increased housing supply:
“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, increased housing supply.”
50 6 Analysis of Claims
Claim Five. Failure to carry out ministerial scoping consultation duty Violation of SB 35 River Landon states that the city didn’t carry out the scoping consultation.
River Landon was owed a ministerial obligation by the city to carry out a scoping consultation – timely, early to identify any resources and potentially adjust the application, and in good faith, so that processing of the development could continue to a permit. The city did not undertake a scoping consultation. It misrepresented to the applicant that it was undertaking such, did not develop the technical, factual, cultural and archaeological information needed, hired no assistance as is customary, created no documentation of its activities, hid behind confidentiality whereas confidentiality only applies to not publishing location of resources publicly, expressed concern to the applicant that the Native American tribe was not engaging, and no documentation (per Tribal Consultation Guidelines) on any actual scoping consultation whatsoever was produced following a Public Records Act request.
City responds that a series of meetings (that included other projects) were scheduled in advance as standing meetings. Applicant responds that a series of standing meetings is not a scoping consultation.
The court can find that the city’s failure to carry out a scoping consultation led to loss and damages for the applicant.
Claim Six Unlawful Inconsistency Determination and Treatment for 29 Unit project Violation of SB 35. Failed to proceed in manner required by law. Reasonable person can find consistent.
Failed to approve.
Applicant had a right to a lawful consistency and inconsistency determination.
The development was and is subject to the (so-called) Builder’s Remedy which when a Notice of Intent is filed at a time that a city does not have its housing plan certified by CA Housing and Community Development, no zoning controls or local laws can be used to deny the development.
The law is intended to punish a city for not having a housing plan under which applicants and landowners can readily & efficiently gain planning entitlements. The applicant had also requested waivers, bonuses and concessions timely in multiple times in advance (and acknowledged by the city) of the development processing & consistency & inconsistency letter.
Contrary to city code requiring these be issued within 30 days, the city did not issue them.
The inconsistency letter (the city failed to address consistency) contained scores of subjective standards including subjective standards that could only be determined by inter alia discretionary review of bodies, commissions and a discretionary City Engineer’s review – and despite 51 comprehensive review by the applicant, the applicant cannot identify a single applicable objective standard in the inconsistency review. This is because the city has not actually created objective standards. Because of this failure, the development is deemed to satisfy ALL objective planning standards.
The city failed to carry out its ministerial duty to approve the 29 home development.
Because of separately each, and all of, Builder’s Remedy, State Density Bonus law, and a failed inconsistency communication(s), the applicant is entitled to approval of the 29 unit development Claim Seven Unlawful Inconsistency Determination and Treatment for 14 Unit project Violation of SB 35. Failed to proceed in manner required by law. Reasonable person can find consistent.
Failed to approve.
In a compromise, the City Council ‘authorized staff to proceed and approve a 14 unit development’
The applicant rebuilt the plans, and submitted the 14 unit development forthwith – even though it had no legal obligation to do so.
Applicant had a right to a lawful consistency and inconsistency determination – which would have enabled the applicant to make any small final changes (if needed) to the development, and resubmit. The city unlawfully took that benefit.
The development was and is subject to the (so-named) Builder’s Remedy which when a Notice of Intent is filed at a time that a city does not have its housing plan certified by CA Housing and Community Development - no zoning controls or local laws can be used to deny the development. The law is specifically intended a punishment for a city not having a housing plan by which applicants and landowners can gain planning entitlements. The applicant had also requested waivers, bonuses and concessions timely in advance (and acknowledged by the city) of the development processing & consistency & inconsistency letter. Contrary to city code requiring these be issued within 30 days -the city did not issue them.
The inconsistency letter (the city failed to address consistency) contained scores of subjective standards including subjective standards that could only be determined by discretionary review of bodies, commissions and a discretionary City Engineer’s review – and despite comprehensive review by the applicant - the applicant cannot identify any applicable objective standards in the inconsistency review. This is because the city has not actually created objective standards.
Because of the city’s failure to clearly identify and explain any inconsistency with it’s objective standards (such as they exist), the development is deemed to satisfy ALL objective planning standards.
Then, the city failed to carry out its ministerial duty to approve the 14 unit development. 52 Because of separately each, and all of, Builder’s Remedy, State Density Bonus law, a failed inconsistency communication, and a further failure to make a consistency determination, the applicant is entitled to approval of the 14 unit development Claim Eight Unlawful failure to process and approve the Resubmitted 14 unit Project The Plaintiff states it resubmitted the 14 unit development to the city on March 20, 2026, as it was unarguably allowed to do under the express terms of SB 35, addressing the stated concern of the city regarding attachment (though the applicant does not agree).
The city takes the position that it would not process the resubmittal, because on December 3, 2025 it had denied that development, and, that a completely new application, with a completeness check for General applications mandating scores of irrelevant and impermissible documents, studies, reports and analyses must be submitted before the resubmittal will be processed.
The applicant states in response that no new application is required, none of the referenced multitudinous, very time consuming, and superfluous documentation is required, which SB 35 does not authorize - and that it maintains vesting at May 15, 2023, which a new application by law would implicitly not possess. The city had prior processed and reviewed River Landon’s development applications with precisely the same level of detail and documentation as was resubmitted on March 20, 2026.
SB 35 expressly provides that an application be reviewed for consistency within 30 or 60 days, (and by technical assistance from HCD on SB 35), mandates that a consistency and inconsistency determination MUST be made within 30 (in this case) or 60 days, and that the city is prohibited from determining that an application is in conflict with objective planning standards on the basis that application materials are not included. The government failed to make the or any proper consistency and inconsistency determination, and therefore the development is deemed to satisfy all objective planning standards – both State, and local, standards.
Claim Nine Breach of Mandatory Duty 815.6. Submitted claim timely. City failed to approve 29 and 14 unit project. Consequential damages.
The Plaintiff states that the city’s failure to carry out its mandatory duty has caused damage to the Plaintiff. The Plaintiff has suffered inter alia loss of revenue, development value, and increase in construction cost & interest, which it would not have had the city undertaken its mandatory duty.
The city responds that the Plaintiff did not submit a valid SB 35 application.
The Plaintiff responds that the city violated its rights in not undertaking a timely scoping consultation and not issuing true consistency/inconsistency letters, whereas if it had the Plaintiff could have simply made any minor clarifications & corrections and the approval would issue.
This all continued as the city refused to issue an approval even after the developments were 53 deemed to satisfy all objective planning standards in 65913.4 (a) by operation of law. The city had clear mandatory duties. The loss has accumulated from January 2024 to the time of writing at a minimum $642,000 per month by 31 months $19,900,000 being plus attorney’s costs fees, and, River Landon professional, managerial and executive time at a minimum of $1,000,000.
These losses continue to cumulate until issuance of approval letters. The duties are intentionally & explicitly ministerial under the statutory scheme and the city and its officials have no immunity.
The court can find that these damages were proximately caused by the failure of the Defendants to carry out its mandatory ministerial duty, and award the consequential damages against the city due to its unlawful conduct.
Claim Ten. Violation of HAA. Action to enforce HAA. Never ending scoping consult. Did not make findings for disapproval. City bears burden of proof. Bad faith. Court can direct to approve. City’s actions continue on all applicant H6 notice items.
Plaintiff states that city acted in bad faith, and unlawfully obstructed the project. It documented subjective standards, claimed information was missing when in fact the components were not even proposed, fabricated its own code, promoted constantly shifting reasons for not approving the developments, and hid behind a mandatory scoping consultation but without actually conducting a scoping consultation.
The court can make an order to order the city to issue an approval of the 29 unit project.
Claim Eleven. 29 unit project. Disapproved. Stated that vesting has expired. Disparate treatment due to being SB 35 project. Didn’t make findings Burden of proof that its decision conformed to all conditions of HAA.
The court to make an order to order the city to issue an approval of the 29 unit project.
Claim Twelve 14 unit project. Disapproved. Stated that vesting has expired. Disparate treatment due to being SB 35 project, and Builder’s Remedy project. Didn’t make findings Burden of proof that its decision conformed to all conditions of HAA. City did not and could not identify an externally referenceable uniform benchmark for attached. City did not quote code reference of attached from HCD Guidelines in its inconsistency letter, nor did it quote the Guidelines (now not in effect).
In part because late determinations are disqualified, &, the development is deemed to satisfy all the objective planning standards at (a), the city did not identify objective standards, & the development is subject to the Builder’s Remedy.
The court to make an order for the local agency to issue an approval of the 14-unit project.
Claim Thirteen. 14 unit project. Disapproved. Failed to cease course of conduct such as harass applicant. Failed to articulate an objective basis for applicant to receive approval. City bears 54 burden to show its actions do not constitute an unlawful disapproval under the HAA. Housing organization challenged the city’s actions, and its lawyers detailed that the city’s actions were not in conformance with the law – the City did not properly consider these objections. Acted in bad faith when it disapproved the project. City has not ceased the course of conduct outlined in April 2, 2026 letter.
The court to make an order for the local agency to issue an approval of the 14-unit project. 55 Attachments
7 Attorney General to City of Elk Grove
ROB BONTA State of California
Attorney General DEPARTMENT OF JUSTICE
1300 I STREET, SUITE 125
P.O. BOX 944255
SACRAMENTO, CA 94244-2550
Public: (916) 445-9555
Telephone: (916) 210-7246
Facsimile: (916) 327-2319
E-Mail: [email protected]
March 16, 2023
Mayor Bobbie Singh-Allen
City of Elk Grove
8401 Laguna Palms Way
Elk Grove, CA 95758
(916) 691-2489
[email protected]
RE: DISAPPROVAL OF OAK ROSE APARTMENTS
Dear Mayor Singh-Allen:
W C C E G J 27, 2022 denial of the Oak Rose Apartments (the Project), a proposed supportive housing project C O T S Planning Area (the OTSPA). The proposed project would have added 66 units of supportive housing for lower-income households at risk of homelessness, in a jurisdiction in dire need of low-income housing opportunities. The Council denied the Project on the basis that it did not S B (SB) 35 ministerial review.
In response to the City Council , the California Department of Housing and Community Development (HCD) issued a Notice of Violation finding the City in violation of SB 35 (section 65913.4 of the Government Code), the Housing Accountability Act (the HAA), the Nondiscrimination in Land Use Law (Section 65008), the Affirmatively Furthering Fair Housing Statute (the AFFH Statute), and the Housing Element Law. T C HCD Notice of Violation on November 10, 2022.
Our office has reviewed the Notice of Violation and the C November 10 response letter (the Letter). We HCD C of the Project violated state law. We urge the City to reconsider and take prompt action to conform with state law.
I. THE GROUND FLOOR USE RESTRICTION IS NOT AN “OBJECTIVE STANDARD UNDER EITHER SB 35 OR THE HAA
SB 35 requires local governments to provide streamlined, ministerial (nondiscretionary) approval of projects that are consistent with objective zoning standards. (Gov. Code, § 65913.4, March 16, 2023
subd. (a)(5).)1 To qualify as objective under SB 35, a local zoning policy must no . (Ibid., italics added.) That definition is also in the HAA. (Compare § 65913.4, subd. (a)(5) with § 65589.5, subd. (h)(8).) This requirement ensures that the application of local standards is predictable. (California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 850.)
The City contends that the Project does not qualify for ministerial approval under SB 35 because it conflicts with the following use restriction from the OTSPA: B 2nd and 3rd floor residential must be used for pedestrian oriented commercial uses on the ground floor (i.e., retail, res, ). (OTSPA p. 13.) Th C the Letter rely on the assumption that this use restriction is an objective standard of SB 35 and the HAA, but it is not because its application depends on the exercise of discretion.
Indeed the City itself acknowledges that its OTSPA standardsincluding the ground floor use restrictioninvolve discretion, noting that C OTSPA OTSPA. (L at p. 15.) That mechanism allows considering the compatibility of a project with community character, which demonstrates that the OTSPA use restriction is not objective. Because the HAA and SB 35 prohibit the application of a standard that involves any discretionary application, the City cannot rely on OTSPA use restriction as a basis to deny the Project.
II. SB 35 AND THE HAA REQUIRE THE CITY TO TREAT THE PROJECT AS CONSISTENT
WITH THE USE RESTRICTION
A. The Use Restriction “Relates to Housing Density Under SB 35 Even if the OTSPA SB 35, the City was still required to approve the project because the use restriction is related to housing density and the project is compliant with maximum allowed density.
U SB 35, standards related to housing density, as applicable, if the density proposed is compliant with the maximum density allowed within that land use designation, notwithstanding any specified . (§ 65913.4, subd. (a)(5), emphasis added.) The City argues that the OTSPA use restriction does not relate to housing density SB 35 because it does not numerically establish the allowable units onsite.
In arguing that the use restriction is not strictly a density standard, the City ignores the broad interpretation under SB 35. I, SB 35 implemented in a manner to afford the fullest possible weight to the interest of, and the approval 1 All statutory references are to the Government Code unless otherwise noted.
March 16, 2023
, . (§ 65913.4, subd. (n).) More broadly under state , . (Bay Cities Paig & Gadig, Ic. . Lae Ma I. C. (1993) 5 Cal.4th 854, 873; see also Chawanakee Unified School District v. County of Madera (2011) 196 Cal.App.4th 1016, 1028 [ ].) Here, the OTSPA use restriction can be reasonably read as requiring some ground floor commercial uses, but not entirely commercial uses. Requiring solely commercial uses on the ground floor of otherwise residential buildings (i.e., prohibiting ground floor residential units) P use designation and the Density Bonus Law. Such a prohibition directly regulates housing density at the Project site, because it restricts the feasible development of new housing to a level below what the general plan, coupled with the Density Bonus Law, allow. And to the extent the use restriction actually prohibits ground floor residential units, it is unquestionably a zoning standard related to housing density in both logical and practical effect. Therefore, the Project is deemed consistent with the use restriction and thus subject to ministerial approval under SB 35. (Id., subd. (a)(5).)
B. The City Did Not Timely Determine That the Project Violated the Use Restriction Due to Its Inclusion of Ground Floor Residential Units Further, even if the Project was inconsistent with the OTSPA use restriction, the City failed to timely notify the project proponent as required by SB 35.
To find proposed new housing in SB 35 , standard or standards the development conflicts with, and an explanation for the reason or reasons the development conflicts with that standard or standards periods. (Id., subd. (c)(1).) L carefully explain any determination that a SB 35 . (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318.) Here, the City was required to do so within 60 days of application submission. (See § 65913.4, subd. (c)(1)(A).) The City provided a letter to the Project developer on April 15, 2022, which was within 60 days, but that letter failed to make a clear determination that the project conflicted with local zoning standards. Rather, it requeste more information to know if the Project will be consistent . (Letter at p. 4.) In particular, it requested more information about whether the Project would have a pedestrian-oriented commercial use on the ground floor. Staff request for additional information was not a determination that the project conflicted with the use restriction, and certainly did not reflect a careful explanation . .
Because the City failed to determine in a timely and adequate manner that the Project conflicted with the use restriction , the Project was deemed to satisfy the standard. (§ 65913.4, subd. (c)(2).) In fact, the City ultimately determined that the Project did have a pedestrian-oriented commercial use on the ground floor, obviating its denial. It denied the project on a basisthe March 16, 2023
presence of residential units on the ground floorthat was never articulated in the April 15 determination letter. (See June 2 Planning Staff Report at p. 10.) Because that determination was not made until 90 days after the project submission, on June 2, 2022, it was an untimely basis for denial. This is exactly the shifting goalposts that the SB 35 determination deadline is meant to avoid.
For those reasons, the City was required to treat the Project as consistent with the use restriction.
III. THE CITY VIOLATED THE HOUSING ACCOUNTABILITY ACT BY ENFORCING THE
USE RESTRICTION
Even if the use restriction was objective and the City timely asserted its application, the HAA requires more of local planning decisions than simply applying objective standards. When the general plan authorizes a certain maximum residential density, the HAA requires the zoning and development standards to facilitate development at that density in order to accommodate the jurisdictions regional housing need.
The local government must , , . H, he development standards, conditions, and policies shall be applied to facilitate and accommodate development at the . (§ 65589.5, subd. (f)(1); see also California Renters, supra, 68 Cal.App.5th at p. 850.) Here, the City application of the use restriction to the Project is not consistent with meeting its fair share of the regional housing need. The City is in its second consecutive cycle of failing to meet its need for low- and very low-income households, and the Project would have provided 66 units of lowerincome housing.
Similarly, under the HAA, the City could facilitate and accommodate development at the density allowed on the site by the general plan . (§ 65589.5, subd. (j)(4).) Here, the Project falls within the density allowable under the general plan. Any zoning standard that the City would enforce against the Project must facilitate development at that proposed density. Yet the City enforced the use restriction to prevent such development, in violation of the HAA.
IV. THE CITY VIOLATED FAIR HOUSING LAWS
In its Notice of Violation, HCD charged the City with violating two important fair housing laws: Section 65008 and the AFFH Statute. Both of these statutes prohibit the City from engaging in discriminatory land use practices that disproportionately harm lower-income households. The City a discriminatory land use practice.
March 16, 2023
A. The City Violated Section 65008
Local governments violate Section 65008 whenever a land use decision is based on discriminatory intent or has a discriminatory effect. Here, there is evidence of both. First, the C -rate housing development, the Elk Grove Railroad Courtyards Project, evidences discriminatory intent. As the City admits in the Letter, Railroad C , -rate project that is located within the OTSPA and contains . (L . 14.) Despite the presence of ground floor residential units, the City found that Railroad Courtyards was consistent with planning standards, and completely avoided any discussion of the use restriction. (See May 5 Planning Staff Report for Railroad Courtyards at p. 3.)2
With the Project, however, the City reached a different conclusion. There, the City adopted a strict interpretation of the use restriction as outright prohibiting ground floor residential units. The City thus adopted two conflicting interpretations of the OTSPA use restriction for two similarly situated projects serving different populations. It applied a more permissive interpretation to approve a lower density market-rate project, and it applied a stricter interpretation to disapprove the Project, a higher density lower-income supportive housing project. That conduct is impermissible under Section 65008.
In addition, the C P a discriminatory effect and no compelling purpose to override that effect. The City applied the use restriction to disapprove an application to develop low-income housing in a jurisdiction that badly needs it. The residents who would benefit from the housing would be forced to look elsewhere for similar housing opportunities.
That suffices to show a discriminatory effect. (See Keith v. Volpe (1988) 858 F.2d 467, 485 [holding that a City land use decision that adversely affect only low-income persons violated section 65008].)
The City application of the use restriction was not necessary to achieve a legitimate policy goal, such as would override the discriminatory effect. To the contrary, on June 2, 2022, P C, , that the Project would be consistent with the City ater concentration of high-density residential, office commercial or mixed-use sites at . (See June 2 Staff Report at p. 6.) Planning staff also found that the Project would be consistent with a City increase of housing diversity and promot[ing] walkability with the Project in close proximity to E G B, P G P. (Ibid.) 2 I , C CEQA , had to find consistency with local planning and zoning laws. (Id. at p. 9; see CEQA Guidelines, § 15332.)
March 16, 2023
T C iminatory intent and the discriminatory effect of its actions violated Section 65008.
B. The City Violated the AFFH Statute by Applying the Use Restriction U AFFH S, C adminis all of themrelating to housing and community development in a manner to affirmatively further fair housing, and the City may take no action that is materially inconsistent with its obligation to affirmatively further fair housing. (§ 8899.50, subd. (b)(1).) The AFFH Statute thus applies to the local enforcement of zoning standards in the context of both SB 35 and the HAA.
The City takes the position that AFFH compliance depends on all C related to housing. In making this argument, the City cites subdivision (d) of the AFFH Statute, , section does not require a public agency to take, or prohibit a public agency from taking, one . (Id., . ().) T C . I C l obligation to avoid taking any action that is materially inconsistent with its mandatory duty to affirmatively further fair housing. (Id., subd. (b)(1).) H, C AFFH because it applied the OTSPA use restriction in a subjective and discriminatory manner.
F , C P-specific decision making is beyond the reach of the AFFH Statute is without merit.
V. HCDS FINDINGS UNDER THE HOUSING ELEMENT LAW ARE ENTITLED TO GREAT WEIGHT
Accord C, H E. (L . 17.) T C cites no authority for this proposition. Nor could it, as HCD may review any action or failure to C HCD ing element or Section 65583. (§ 65589.5, subd. (i)(1)(A), italics added.) A single action can, in fact, bring the City out of substantial compliance with the Housing Element Law. (See id., subd. (i)(1)(B).) If HCD finds that any action violates the Housing Element Law, it may revoke its compliance findings until it determines that the locality has taken appropriate corrective action. (Ibid.) The law vests HCD with the authority to review any action, including a project disapproval, for noncompliance with the Housing Element Law. Here, HCD found that C P d the Housing Element Law. The City should give great weight to that determination and HCD . ***
March 16, 2023
We urge C P HCD and the legal analysis set forth in this letter. If the City does not make efforts to remediate its actions within 30 days, this Office is C in court. Please feel free to contact me to discuss this matter.
Sincerely,
MATTHEW T. STRUHAR
Deputy Attorney General
For ROB BONTA
Attorney General
Cc: Elk Grove City Council
Jonathan P. Hobbs, City Attorney
Lauren Langer, Best Best & Krieger
Martin Carr, California Department of Housing and Community Development 56 8 Attorney General to Nira Doherty, outside counsel for San Rafael, and outside city attorney, Menlo Park
Rob Bonta
Attorney General
1300 I STREET, SUITE 125
SACRAMENTO, CA 95814
Public: (916) 445-9555
Telephone: (916) 210-6382
Facsimile:
E-Mail: [email protected]
July 29, 2026
VIA E-MAIL
Deanna M. Chow
Community Development Director
City of Menlo Park
701 Laurel St.
Menlo Park, CA 94025
[email protected]
Nina F. Doherty
Burke, Williams & Sorensen, LLP
City Attorney
City of Menlo Park
181 Third Street, Suite 200
San Rafael, CA 94901
[email protected]
RE: NOTICE REGARDING 80 WILLOW ROAD (PLN2023-00049)
(GOV. CODE, § 65914.2.)
Ms. Chow and Ms. Doherty:
Thank you for meeting with us recently to discuss the application for a housing development project (“Project”) at 80 Willow Road in Menlo Park. The Office of the Attorney General remains concerned that the City has not handled the application in accordance with the Affordable Housing and High Road Jobs Act of 2022 (the “Act”). (Gov. Code, §§ 65912.100- 65912.140.)0F
1 As we discussed, records show that the City untimely asserted additional grounds to support its initial determination that the Project was ineligible for streamlined approval under the Act. Because the City cannot change its rationale for finding the Project ineligible for streamlined approval from its initial rationale, and because the City’s initial rationale is incorrect, the City’s handling of the application for this Project would represent a violation of the Act.
The City’s treatment of the Project also violates the Housing Accountability Act (the “HAA”) in two respects. First, the City is failing to afford the Project the protections to which it is entitled under the builder’s remedy. (§ 65589.5, subd. (d)(5)-(6).) Second, the City is unlawfully requiring the Project applicant to pay for the City’s legal counsel in connection with the City’s review of the Project, which goes beyond the limited authority the HAA reserves to local agencies to impose fees on development applicants. (See id., subd. (f)(3).) That practice 1 All statutory references are to the Government Code unless otherwise indicated.
July 29, 2026
also violates Section 65914.2 (“A.B. 712”), which prohibits the City from requiring project applicants to indemnify the City for any litigation-related expenses.
I. Background
a. The Project
80 Willow Road LLC (the “Applicant”) submitted its preliminary application on December 7, 2023, followed by a formal development application on May 24, 2024. The Project is a mixeduse, mixed-income housing development that would adjoin the City of Palo Alto’s Timothy Hopkins Creekside Park (the “Park”) and other urban uses in Menlo Park. As currently proposed, the Project would develop 665 new housing units, 15 percent of which would be affordable to lower-income households. The City determined that the Project application was complete on November 14, 2024.
b. The City’s First AB 2011 Determination Letter
On June 22, 2024, the City sent the Applicant the City’s determination that the Project was ineligible for streamlined approval under the Act (the “First Determination Letter”). The City concluded that the Project was inconsistent with certain of the Act’s site criteria and development standards for mixed-income housing development. The City did not find any inconsistencies with the Act’s affordability criteria.
The City’s initial inconsistency findings under Section 65912.121. The City alleged that the Project site did not satisfy three site criteria for mixed-income housing under the Act. (First Determination Letter at p. 2.) First, the City alleged that the Project site did not sufficiently abut parcels developed with urban uses, as the Act requires 75 percent of a development site to abut urban uses. (Ibid.) According to the City, the Project site adjoined the Park, which the City claimed to be a non-urban use. (Ibid.) By the City’s math, that meant that only 40 percent of the Project site’s perimeter abutted urban uses. (Ibid.)
The other two site criteria are from Section 65913.4. (See § 65912.121, subd. (g).) The City claimed that, because the Project site included jurisdictional wetlands under the United States Fish and Wildlife Service Manual (the “Manual”), Part 660 FW 2 (June 21, 1993), the Project site failed to comply Section 65913.4(a)(6)(C). (First Determination Letter at p. 2.) The City also claimed that, because “environmental studies have identified the Project Site as habitat for California red-legged frog and central California coast steelhead (Oncorhynchus mykiss),” the Project constituted habitat for listed species. (Ibid.) The City’s initial inconsistency findings under Section 65912.123. With the First Determination Letter, the City found the Project inconsistent with four development standards, but only two of which the City continues to determine conflict with the Project. First, the City found that the Project exceeded the density restrictions under Section 65912.123(b). (First Determination Letter at p. 3.) Second, the City found that the Project exceeded the Act’s height restrictions under Section 65912.123(c). (Ibid.)
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c. The Applicant’s First Reply Letter
On October 10, 2025, the Applicant submitted a revised application under the Act and a reply letter (the “First Reply Letter”) to address the alleged inconsistencies asserted in the First Determination Letter. For the site criteria, the Applicant noted that the Legislature, in adopting A.B. 2243, included public parks in the Act’s definition of “urban uses.” (First Reply Letter at pp. 1-2.) In addressing wetlands and habitat, the Applicant also drew a distinction between the Project site and the legal parcel on which the site is located. (Id. at p. 2.) The Applicant explained that, while the legal parcel hosting the site includes protected wetlands and habitat, the Project site itself would not. (Ibid.)
For the development standards flagged in the First Determination Letter, the Applicant noted that A.B. 1893, which reformed the builder’s remedy, mooted the City’s finding that the Project was inconsistent with Act’s density restrictions. (Id. at p. 3.) The Applicant further explained how A.B. 2243 allowed project proponents under the Act to take advantage of the Density Bonus Law, which addressed the City’s finding that the Project was inconsistent with the Act’s height restrictions. (Ibid.)
d. The City’s Second Determination Letter
On November 7, 2025, the City submitted a second determination letter (the “Second Determination Letter”) to address the resubmitted Project and the First Reply Letter. The City again found the Project inconsistent with the Act’s objective planning standards, but it made new inconsistency findings separate from those in the First Determination Letter.
The City’s subsequent inconsistency findings under Section 65912.121. With the Second Determination Letter, the City found, for the first time, that the Project was inconsistent with the Act because the Project site was not “located within a zone where office, retail, or parking are a principally permitted use.” (§ 65912.121, subd. (a).) According to the City, the Project site is zoned C-1, and the City’s C-1 zone does not have any permitted uses. (Second Determination Letter at p. 2.) Because any development in the C-1 zone requires a conditional use permit, the City reasoned that the Project site does not satisfy Section 65912.121(a). (Ibid.) The City continued to find the Project inconsistent with Section 65912.121(e)’s requirement that urban uses surrounded 75 percent of project sites. (Id. at p. 3.) In making that finding, the City took the position that the City of Palo Alto’s lands adjoining the Project site are not a park. (Ibid.) The City also rejected the Applicant’s argument distinguishing between sites and parcels. (See ibid.) By treating the Project site as coterminous with the legal parcel on which the Project site is located, the City continued to find that the Project site included protected wetlands and habitat for protected species. (Id. at p. 4-5.) The City’s subsequent inconsistency findings under Section 65912.123. The City faulted the Project for failing to comply with the Act’s height limits, parking setbacks, and frontage requirements, despite acknowledging that these development standards are subject to the Density Bonus Law’s incentives, concessions, and waivers. (Id. at pp. 7-8.) The City also took the position, for the first time, that the Project was not a housing development project for purposes of July 29, 2026
the Act or the HAA, as required by Section 65912.123(a). (Id. at pp. 2-3.) The City took this position because the total residential gross square footage, by the City’s calculation, only accounted for 61.18 percent of the Project’s total gross square footage. (Ibid.) The City did not find the Project inconsistent with any standard set forth under Section 65912.123(a) in its First Determination Letter.
e. Subsequent Correspondence
The Applicant responded to the Second Determination Letter on November 19, 2025, in which it faulted the City for improperly making new inconsistency findings in violation of the Act. The City responded on December 18, 2025, reiterating the positions it asserted in its Second Determination Letter, and taking the position that there was nothing improper in the City finding the Project inconsistent with additional objective planning standards that were not cited in the First Determination Letter. The Applicant replied to that letter on December 24, 2025. Since then, the City has continued to find the Project inconsistent with multiple planning standards.
On May 6, 2026, the City submitted its latest determination letter (“May 6 Determination Letter”), in which it reiterated its bases for finding the Project ineligible for streamlined approval under AB 2011. But the City conceded other points to the Applicant, including that the Project satisfies the residential area requirements necessary to qualify as a housing development project under the HAA.
II. Legal Analysis
a. The City’s Treatment of the Project Violates the Act The City cannot apply the Act’s objective planning standards in a manner inconsistent with Section 65912.124(a). For mixed-income developments under the Act, Section 65912.124(a) requires local governments to make an initial inconsistency determination within 60 or 90 days, depending on the size of the proposed development. (§ 65912.124, subd. (a)(1).) Absent a timely initial finding that a development conflicts with a particular of the Act’s standards, the Act requires the local government to treat the proposed development as consistent with that standard. (§ 65912.124, subd. (a)(4).) That is true now, and it was true before A.B. 2243 took effect last year. (See former § 65912.124, subd. (b), eff. Jan. 1, 2024 [“If the local government fails to provide the required documentation pursuant to subdivision (a), the development shall be deemed to satisfy the required objective planning standards.”].) A.B. 2243 reinforced this understanding of the Act. With A.B. 2243, the Legislature amended the Act to provide that, “[i]n any subsequent review of the application determined to be in conflict with the objective planning standards specified in this article, the local government shall not request the development proponent to provide any new information that was not stated in the initial list of items that were determined to be in conflict.” (§ 65912.124, subd. (a)(2)(B).) In other words, once a local government makes an inconsistency determination, the Act prohibits the local government from asserting newly discovered bases to find a proposed A.B. 2011 project inconsistent with the Act’s objective planning standards.
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According to the City, it was allowed to find additional inconsistencies from those identified in the First Determination Letter because, before A.B. 2243 took effect, the Act did not specify that the City had to provide the Applicant “with an exhaustive list” of objective planning standards that conflicted with the Project. (§ 65912.124, subd. (a)(2)(A).) That point ignores A.B. 2243’s express prohibition on requiring development proponents “to provide any new information that was not stated in the initial list of items that were determined to be in conflict.” (Id., subd. (a)(2)(B).) That prohibition applies to “any subsequent review of the application determined to be in conflict with” the Act’s objective planning standards. (Ibid., italics added.) The term “any” is all-inclusive. (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635.) By using the term “any,” the Legislature stated its intent to prohibit local governments from making any post-hoc inconsistency findings in any subsequent review of any A.B. 2011 applications, including those that, like this one, that were submitted and found inconsistent with the Act before A.B. 2243 became law.
For these reasons, the Act prohibits the City from finding new inconsistencies with the Act’s standards that were not identified in the First Determination Letter. With the May 6 Determination Letter, the City is accordingly violating the Act by finding that the Project conflicted with the Act’s standards in the following ways:
• By finding that the Project site was not located within a zone where office, retail, or parking were a principally permitted use (§ 65912.121, subd. (a)); 1F 2 • By finding that Project was not surrounded by urban uses based on the Project site’s parcel configuration (§ 65912.121, subd. (e)); 2F
3 • By finding that the Project did not satisfy the Act’s affordability criteria concerning the Project’s affordable units (§ 65912.122, subd. (d)); 2 Although the City’s zoning code provides that there are no permitted uses on the Project site absent a conditional use permit, the City’s general plan designates the Project site as commercial, and the general plan provides that the commercial designation accommodates commercial uses. (See General Plan, City of Menlo Park (Nov. 29, 2016) at LU-12, LU-13, LU- 15.) We thus do not believe that the City can rely on its zoning code to treat commercial uses at the Project site as only conditionally permitted for purposes of AB 2011. (See §§ 65912.101, subd. (u), 65912.121, subd. (a).) “The tail does not wag the dog.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541.) “The general plan is the charter to which the ordinance must conform.” (Ibid.)
3 This is not to say that all of the site criteria listed in Section 65912.121 constitute waivable standards, but the site criteria concerning infill development in commercial zones qualify as “planning standards” for purposes of the Act given that other laws treat such requirements as planning standards. (See, e.g., §§ 65913.4, subds. (a)(2)(A) [treating an infill site requirement as a planning standard], (a)(2)(C) [treating base zoning as a planning standard].) For more information, we refer you to HCD’s Affordable Housing and High Road Jobs Act of 2022 Draft Guidelines, available here: https://www.hcd.ca.gov/sites/default/files/docs/planning-andcommunity/draft-ab-2011-guidelines.pdf.
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• By finding that the Project is not a housing development project (§ 65912.123, subd. (a)); and
• By finding that the Project did not satisfy the Act’s development standards concerning parking setbacks and frontage (§ 65912.123, subd. (d)(1)).
Because these alleged conflicts were not identified in the City’s First Determination Letter, the City cannot rely on these alleged conflicts to determine that the Project is not eligible for streamlined approval under the Act.
b. The Project Is Consistent with the Act’s Objective Planning Standards The First Determination Letter sets the parameters of the City’s subsequent review of the Project under the Act. Based on the information provided by the Applicant in response to the First Determination Letter, we have concluded that the City’s handling of the Project application has been inconsistent with the Act.
The Project site adjoins urban land uses. In the First Determination Letter, the City found that less than 75 percent of the Project site adjoined urban land uses. Section 65912.121(e) requires at least 75 percent of a project site to adjoin urban land uses for a proposed development to qualify for streamlined approval under the Act. (§ 65912.121, subd. (e).) At the time, as the City noted, the Act’s definition of “urban uses” did not expressly include parks, open space, or natural areas, and the Project site adjoins the Park. A.B. 2243, however, amended the Act to define “urban uses” as including a “public park that is surrounded by other urban uses….” (§ 65912.101, subd. (x).) Because the Park is a public park surrounded by other urban uses, it is an urban use for purposes of the Act, and the Project site thus complies with Section 65912.121(e).
The City’s argument that A.B. 2243 has no effect on its initial determination regarding the site perimeter is unavailing. First, the City argues that the Park is not a park. (See, e.g., Second Determination Letter at p. 3.) That would be news to the City of Palo Alto, whose municipal code provides that the Park “is hereby reserved for park, playground, recreation or conservation purposes.” (City of Palto Alto Mun. Code, § 22.08.290.) Parks may serve open-space or conservation purposes. (See, e.g., Pub. Resources Code, § 5902, subd. (i) [defining “park” for purposes of the California Wildlife, Coastal, and Park Land Conservation Act as meaning “a tract of land with outstanding scenic, natural, open-space, or recreational values, set apart to conserve natural, scenic, cultural, or ecological resources for present and future generations, and to be used by the public as a place for rest, recreation, education, exercise, inspiration, or enjoyment”].) The City cannot escape the effect of A.B. 2243 by describing the Park as “open space … preserved for its environmental value….” (May 6 Determination Letter at p. 6, internal quotation omitted.)
Second, the City conflates the Project site with the legal parcel hosting the site. The Legislature recently added Section 65912.103.5 to the Act, and that statute restricts the City’s “review of the property or site … to the area described as being physically disturbed by construction in the application for streamlined, ministerial review and shall not include, unless expressly stated otherwise, other contiguous or noncontiguous areas even if under the ownership July 29, 2026
or control of the project proponent.” (§ 65912.103.5.) The Act thus directs the City to only consider the Project site itself, not the parcel on which the Project site is located, in determining eligibility for streamlined approval.
The Project complies with the Act’s density standards because it is a builder’s remedy project. The HAA specifies that builder’s remedy projects are consistent with the Act’s density standards under Section 65912.123(b). (See § 65589.5, subd. (f)(6)(F)(i).) To avoid this effect, the City has contended that the Project is not a housing development project as defined by the HAA. (See §§ 65589.5, subd. (h)(3), 65912.101, subd. (i).) In the May 6 Determination Letter, the City makes only one point to support this argument, which is that the Project includes a hotel.
The Project is not subject to the HAA’s restrictions on hotel development because the application was deemed complete before A.B. 1893 took effect and because the Project is a builder’s remedy project. The HAA is not ambiguous on this point:
For a housing development project application that is deemed complete before January 1, 2025, the development proponent for the project may choose to be subject to the provisions of this section that were in place on the date the preliminary application was submitted, or, if the project meets the definition of a builder's remedy project, it may choose to be subject to any or all of the provisions of this section applicable as of January 1, 2025. (§ 65589.5 subd. (f)(7)(A).)3F
4 There is no dispute that the Project application was deemed complete before January 1, 2025. Nor is there any dispute that the Project satisfies the requirements for the builder’s remedy, aside from the fact that the Project includes a hotel. The HAA’s hotel restrictions took effect as part of A.B. 1893, which entitles the Applicant to “choose to be subject to any or all of the provisions of this section applicable as of January 1, 2025.” (Ibid.) The HAA thus allows the Applicant to disregard A.B. 1893’s restrictions on hotels while also taking advantage of A.B. 1893’s relaxed affordability provisions. For that reason, the Project is a builder’s remedy project notwithstanding its inclusion of a hotel.
The Project is entitled to the protections of the Density Bonus Law. The Act allows project applicants to use incentives, concessions, and waivers or reductions of development standards under the Density Bonus Law “to deviate from the objective standards in” Section 65912.123(c) and (d)(2)-(3). (§ 65912.124, subd. (f)(2).) The Density Bonus Law prohibits local governments from applying “any development standard that will have the effect of physically precluding the construction of a development” entitled to densities, concessions, or incentives 4 To only apply this provision to builder’s remedy projects that satisfy the precise requirements of A.B. 1893 would have the effect of negating this provision altogether, as this provision entitles builder’s remedy applicants to opt in or out of any provision that A.B. 1893 added to the HAA. To date, the City has not offered a persuasive explanation for why A.B. 1893’s hotel provisions are different from, say, the HAA’s new density requirements for builder’s remedy projects. Nor could it. (See § 65589.5, subd. (a)(2)(L) [“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.”].) July 29, 2026
under the Density Bonus Law. (§ 65915, subd. (e)(1).) The Applicant is accordingly entitled to a waiver of the height restriction the City seeks to enforce against the Project, and the City cannot enforce the height restriction under the plain terms of the Density Bonus Law. (See ibid.)4F 5 Moreover, the City cannot enforce local development standards to prevent the Project from being developed at the density proposed by the Applicant.
The Project site is neither a protected wetland nor habitat for protected species. The Act incorporates several criteria from Section 65913.4. Relevant here, Section 65913.4 does not allow for streamlined, ministerial approval if a project site is wetlands “as defined in the [Manual].” (§ 65913.4, subd. (a)(6)(C).) In addition, the statute does not allow for streamlined approval on a site that is habitat “for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).” (§ 65913.4, subd. (a)(6)(J).) The site itself must be protected wetlands or habitat for protected species, as the Act provides that the Project site is not coterminous with the legal parcel. (See § 65912.103.5.) Here, the Applicant has provided evidence that the Project site is neither protected wetlands nor habitat for protected species, even if the legal parcel on which the site sits includes such wetlands or habitat. Despite that evidence, the City nevertheless found that the Project site includes wetlands and habitat for protected species based solely on evidence that such conditions exist elsewhere on the parcel. The City has identified no evidence to support a finding that the site itself is protected wetlands or habitat for protected species.
For those reasons, the City cannot continue to find the Project inconsistent with the Act’s objective planning standards.
c. The City Cannot Require the Applicant to Pay the City’s Attorney’s Fees Our office is informed that the City is requiring the Applicant to pay its attorney fees in connection with the City’s consideration of the Project. The City’s municipal code provides that [a]s a condition precedent to issuance of any permit for construction or demolition for a covered project, the applicant shall pay to the city a cash fee sufficient to compensate the city for all direct and indirect expenses incurred in administering the permit. The amount of this fee shall be determined in accordance with the City Council approved master fee schedule.
(City of Menlo Park Mun. Code, § 12.48.070.)
5 In the May 6 Determination Letter, the City acknowledged that, should the Applicant receive a waiver of the height restriction, the Project would be deemed compliant with Section 65912.123(c). (See May 6 Determination Letter at p. 9.) July 29, 2026
The City’s master fee schedule, however, does not mention hourly fees for legal counsel to advise the City in its consideration of a housing development project. Nothing in the municipal code or the master fee schedule places applicants on notice that they will be liable for attorney’s fees if the City procures counsel. Moreover, under the HAA, conditions of approval must be objective, which means their application cannot depend on the subjective judgment of a public official, and they must be “uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5, subd. (h)(9).) Applicants cannot verify, by reference to any uniform benchmark, in advance whether the City will procure the services of counsel to consider a particular project application. And although recovering costs related to permit processing may be permitted, those fees cannot exceed the reasonable cost of providing those charged services. (See § 66014.) Based on the City’s conduct of issuing successive inconsistency determinations, and the purported legal bases for those letters, the fees incurred appear to do nothing more than to support the subjective judgment of public officials to refuse to process and approve the project under strained interpretations of state law. Indeed, the City’s conduct runs the risk of rendering the project infeasible by charging exorbitant legal fees, which would further implicate the HAA.
To be sure, nothing in the HAA “shall be construed to prohibit a local agency from imposing fees and other exactions otherwise authorized by law that are essential to provide necessary public services and facilities to the housing development project or emergency shelter.” (§ 65589.5, subd. (f)(3).) But that only narrowly protects the City’s authority to impose impact fees based on the increased demand for public services created by new housing developments. (See ibid.; see also § 66001 [the Mitigation Fee Act].) And the Mitigation Fee Act expressly excludes fees incurred in processing application fees from its definition of development impact fees. (See § 66000, subd. (b).) Moreover, the City cannot charge excessive fees, and even where they can charge fees, it must be to cover the costs of providing public services to the Project and its residents. (See § 66014.) And the City cannot impose new fees or increase its fees without complying with the Mitigation Fee Act’s procedures. (See § 60016, subd. (a).) In short, the Mitigation Fee Act does not contemplate assessing fees for legal services incurred in reviewing project applications for consistency with state housing law, and so, for the City to charge such fees, it must be pursuant to an objective standard as defined by the HAA.
Finally, effective January 1, 2026, the City’s fee-shifting requirement also violates A.B. 712. A.B. 712 prohibits local agencies from requiring a housing development applicant “to indemnify, defend, or hold harmless the public agency in any manner with respect to an action brought by the applicant, or any other person, alleging that the public agency violated the applicant’s rights or deprived the applicant of the benefits or protections provided by a housing reform law.” (§ 65914.2, subd. (c)(1).) Any “requirement, condition of approval, or agreement in violation” of Section 65914.2(c)(1) “is against public policy and void and unenforceable.” (Id., subd. (c)(2).) The record here suggests that the City is requiring the applicant to pay for legal services procured in the anticipation of litigation, not for legal services procured to ensure compliance with state law. At this point, the City’s successive determination letters are tantamount to prelawsuit communications, not legal review of the project for compliance with state housing law.
July 29, 2026
For those reasons, the City should cease requiring the Applicant to pay for its legal services in connection with its review of the Project application. * * *
The Act and the HAA both constitute housing reform laws for purposes of A.B. 712. (See § 65914.2, subd. (d)(2)(A).) The City’s actions with respect to the Project application, as set forth above, would represent a violation of both laws.
Sincerely,
/s/ Matthew T. Struhar
MATTHEW T. STRUHAR
Deputy Attorney General
For ROB BONTA
Attorney General
MS:
57 9 Technical assistance letters HCD on consistency and inconsistency letter, code reference, careful
explanation, must be timely, must be provided in each
and every circumstance. Zoning data table et al
provides the data required for a reasonable person to
assess consistency.
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
March 11, 2019
Daniel Golub, Associate
Holland & Knight LLP
50 California Street, Suite 2899
San Francisco, CA 94111
RE: City of Los Altos SB 35 Application Technical Assistance Dear Daniel Golb:
This letter is in response to your March 6, 2019 request for technical assistance regarding the requirements of Government Code § 65913.4 (SB 35, Chapter 366, Statutes of 2017) also known as the “Streamlined Ministerial Approval Process”. The Department of Housing and Community Development (HCD) is informed that Rhoades Planning Group submitted an SB 35 application to the City of Los Altos on behalf of 40 Main Street Offices, LLC on November 8, 2018 for a 15-unit project of which 10 percent of the units are affordable to lower-income households.
SB 35 was part of a 15-bill housing package aimed at addressing the state’s housing shortage and high housing costs. Specifically, it requires the availability of a Streamlined Ministerial Approval Process for developments in localities that have not yet made sufficient progress towards their allocation of the regional housing need. Government Code § 65913.4(l) states it is the policy of the state that section 65913.4 be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, increased housing supply. Approval of projects such as 40 Main Street fulfill this legislative intent.
Pursuant to Government Code § 65913.4(j), HCD, among other things, is responsible for reviewing, adopting, amending, and repealing guidelines to implement uniform standards or criteria that supplement or clarify the terms, reference, or standards set forth under Government Code § 65913.4. To that end, HCD released a series of Frequently Asked Questions in 2018 to facilitate implementation of the law. On November 29, 2018, HCD released guidelines pursuant to Government Code § 65913.4(j) which became effective January 1, 2019.
Daniel Golub, Holland & Knight
The following are HCD’s responses to questions (in italics) posed in your March 6, 2019 request.
1) In light of SB 35’s requirement that a locality provide “the development proponent written documentation of which standard or standards the development conflicts with, and an explanation for the reason or reasons the development conflicts with that standard or standard,” Government Code § 65913.4(b)(1); see also Guidelines, § 301(a)(3), can a locality deny an SB 35 application by issuing a written statement which claims that the project conflicts with an objective zoning standard, but does not cite the section or sections of the zoning ordinance containing the standard that the project supposedly violates?
No. Pursuant to Government Code § 65913.4(b)(1), if a local government determines that a proposed development conflicts with any of the objective planning standards, it must provide the development proponent written documentation of which standard or standards the development conflicts with. This would include a specific reference to what the specific objective standard is and a citation to where it can be found.
Without this citation, the specific standard is not verifiable and thus would not meet the definition of objective standard pursuant to Government Code § 65913.4 (a)(5). 2) Can a locality deny a SB 35 application by stating, without citing any code section, that a project does not provide “adequate access/egress to the proposed off-street parking,” or by referring to notes written by staff members which state that effects on parking spaces are not “acceptable” and that parking circulation is “inadequate”? No. Pursuant to Government Code § 65913.4 (a)(5) “objective zoning standards,” “objective subdivision standards,” and “objective design review standards” mean standards that involve no personal or subjective judgment and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official before submittal. Terms like “adequate”, “acceptable”, and “inadequate” imply a subjective determination if they are not accompanied with reference to the specific requirement not met.
3) If the locality does not provide any written communication to the applicant citing any specific code section that the project violates within the applicable 60- or 90-day timeline from the date the application is submitted, is the project deemed to satisfy the objective standards?
Yes. Pursuant to Government Code § 65913.4(b)(2), if the local government fails to provide the required documentation pursuant to Government Code § 65913.4(b)(1), the development shall be deemed to satisfy the objective planning standards.
Daniel Golub, Holland & Knight
4) Can a locality deny an SB 35 application on the grounds that the SB 35 application did not include the application material that the locality requires for complete discretionary Design Review and Use Permit applications? No. Pursuant to Government Code § 65913.4 (a)(5) the only objective standards that can apply to the project are those external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official before submittal. Discretionary design review would not apply.
Specifically, Government Code § 65913.4 (c) states design review or public oversight shall be objective and be strictly focused on assessing compliance with criteria required for streamlined projects. Design review or public oversight can not in any way inhibit, chill, or preclude the streamlined ministerial approval process.
In addition, the Streamlined Ministerial Permit process is a ministerial process. The requirement to apply for use permits, which are by definition discretionary, would also not apply. As stated in the Department’s FAQs, Government Code § 65913.4 specifically exempts developments from the conditional use permit process and they must be approved through a streamlined, ministerial approval process if they satisfy the objective planning standards. Pursuant to the Streamlined Ministerial Approval Guidelines, the locality’s process and application requirements shall not in any way inhibit, chill, or preclude the ministerial approval process, which must be strictly focused on assessing compliance with the criteria required for streamlined projects.
HCD appreciates the opportunity to provide comments. If you have any questions, please contact me at (916) 263-7425.
Sincerely,
Melinda Coy
Senior Policy Specialist
WWHOUSING AGENCY
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT DIVISION 0F HOUSING POLICY DEVELOPMENT 2020 W. El Camino Avenue, Suite 500 Sacramento, CA 95833
(916) 263-2911 FAX (916) 263-7453
www.hcd.ca.gov
January 7, 2020
Daniel Golub, Associate
Holland Knight LLP
5O California Street, Suite 2899
San Francisco, CA 941 11
RE: Streamlined Ministerial Approval Process (Government Code section 65913.4) Technical Assistance
Dear Daniel Golub:
This letter is in response to your December 17, 201 and January 4, 2020 requests for technical assistance regarding the requirements of Government Code 65913.4 also known as the “Streamlined Ministerial Approval Process” and the subsequent guidelines effective January 1, 2019.
Government Code 65913.4 requires the availability of Streamlined Ministerial Approval Process for developments in localities that have not yet made sufficient progress toward their allocation of the regional housing need. Gov. Code 65913.4(I) states it is the policy of the state that section 65913.4 be interpreted and implemented in manner to afford the fullest possible weight to the interest of, and the approval and provision of, increased housing supply. Approval of projects such as 4O Main Street fulfill this legislative intent.
Pursuant to Government Code 65913.40), the California Department of Housing and Community Development (HCD), among other things, is responsible for reviewing, adopting, amending, and repealing guidelines to implement uniform standards or criteria that supplement or clarify the terms, reference, or standards set forth under Gov. Code 65913.4. To that end, on November 29, 2018, HCD released guidelines which became effective January 1, 2019.
The following are HCD’s responses to the questions (in italics) posed in your December 17, 201 letter and further clarified in your January 4th request.
Section 300(a) of the Guidelines states that “[a] local government that has been designated as subject to the Streamlined Ministerial Approval Process by the Department shall provide information, in manner readily accessible to the general public, about the locality’s process for applying and receiving ministerial approval, materials required for an application as defined in Section 102(b), and relevant objective standards to be used to evaluate the application.”
Daniel Golub, Holland & Knight
Section 102(b) in turn defines “Application” to “mean[] a submission containing such information necessary for the locality to determine whether the development complies with the criteria outlined in Article IV of these Guidelines. This may include a checklist or other application documents generated by the local government pursuant to Section 300(a) that specifies in detail the information required to be included in an application, provided that the information is only that required to determine compliance with objective standards and criteria outlined in article IV of these Guidelines.” Section 301(b)(1) also states that “[a]n application submitted hereunder shall be reviewed by the agency whether or not it contains all materials required by the agency for the proposed project, and it is not a basis to deny the project if either: (A) The application contains sufficient information for a reasonable person to determine whether the development is consistent, compliant, or in conformity with the requisite objective standards (outlined in Article IV of these Guidelines); or (B) The application contains all documents and other information required by the local government as referenced in section 300(a) of these Guidelines.” If a local government has not provided information to the general public about the “materials required for an application as defined in Section 102(b)” at the time a development proponent submits a proposal for a streamlined ministerial approval, can the local government lawfully refuse to grant the permit, by contending, without citing any objective planning standards with which the development conflicts, that in the city’s opinion the development proponent’s submission did not “contain[] such information necessary for the locality to determine whether the development complies with the criteria outlined in Article IV of these Guidelines” or did not “contain[] sufficient information for a reasonable person to determine whether the development is consistent, compliant, or in conformity with the requisite objective standards”? No. As stated in section 300(a), the jurisdiction must provide information in a manner readily accessible to the public, the objective standards and requirements for an application. However, if a jurisdiction has failed to make that information readily available, the jurisdiction is not excused from considering a Streamlined Approval Process application. Absent specific information provided by the jurisdiction, pursuant to section 301(b), a jurisdiction is still required to review the project application and cannot deny a project if the application includes information demonstrating the project meets the requirements of Gov. Code § 65913.4. The information contained in the application, of course, must be sufficient for a reasonable person to determine whether the development is consistent, compliant, or in conformity with objective standards.
Pursuant to section 301(b)(2)(C), the jurisdiction must provide documentation of inconsistencies with objective standards within the required 60 or 90 days of submission. If the local government fails to provide the required documentation determining consistency within these timeframes, the development shall be deemed to satisfy the objective planning standards.
Daniel Golub, Holland Knight
Page
Does anything in the Guidelines sections 102(b) or 301(b) (1) relieve local government in this situation of its statutory responsibility to identify, within 60 or 90 days of submission, specific objective planning standards With which the development conflicts? Gov. Code 65913.4(b).
The purpose of the guidelines is to implement, interpret, and make specific Gov. Code 65913.4. Nothing in the guidelines relieves the jurisdiction of its obligation to follow state law relating to the availability of the Streamlined Ministerial Process. Furthermore, nothing in the guidelines condition receipt of an application for the Streamlined Ministerial Process on the jurisdiction posting its objective standards. Absent posting of these standards, state law controls. Thus, as long as, the development application contains information showing how the development meets the requirements of Gov.
Code 65913.4 (e.g. an application includes list of the standards and describes how the development meets those standards) the jurisdiction has 60 to 90 days from submission to evaluate the application pursuant to state law standards, provide the developer with written determination of consistency, and detail any inconsistencies.
HCD appreciates the opportunity to provide comments. If you have any questions, please contact me at (916) 263-7425.
Sincerely,
mfifi Melinda Coy
Senior Policy Specialist
58 10 CARLA v City of San Mateo
1 Filed 9/10/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CALIFORNIA RENTERS LEGAL
ADVOCACY AND EDUCATION
FUND et al.,
Plaintiffs and Appellants,
v.
CITY OF SAN MATEO et al.,
Defendants and Respondents;
TONY MEHMET GUNDOGDU et al.,
Real Parties in Interest;
ROB BONTA, as Attorney General,
etc.,
Intervener and Respondent.
A159320, A159658
(San Mateo County
Super. Ct. No. 18-CIV-02105)
“California has a housing supply and affordability crisis of historic proportions.” (Gov. Code, § 65589.5, subd. (a)(2)(A).)1 This “despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels.” (§ 65589.5, subd. (a)(2)(J).) Among these statutes is the Housing Accountability Act (HAA) (Gov. Code, § 65589.5), enacted in 1982 with the goal of “meaningfully and effectively curbing the capability of 1 All undesignated statutory references are to the Government Code. 2 local governments to deny, reduce the density for, or render infeasible housing development projects.” (§ 65589.5, subd. (a)(2)(K).) In this, the HAA has historically failed. (Ibid.)
These were the findings of the Legislature in 2017, when it amended the HAA to strengthen the statute. (Stats. 2017, ch. 378, § 1.5.) In relevant part, the HAA restricts the ability of local governments to deny an application to build housing if the proposed project complies with general plan, zoning, and design review standards that are “objective.” (§ 65589.5, subd. (j)(1).) A 2017 amendment adds teeth to this restriction by defining what it means to comply with such standards: a housing development project is deemed to comply if “substantial evidence . . . would allow a reasonable person to conclude” that it does. (§ 65589.5, subd. (f)(4) (subdivision (f)(4)).) This case raises questions about how to apply the HAA as amended and whether the statute, especially subdivision (f)(4), violates the California Constitution.
After the City of San Mateo (the City) denied an application to build a ten-unit apartment building, petitioners California Renters Legal Advocacy and Education Fund, Victoria Fierce, and John Moon (collectively, CARLA) sought a writ of administrative mandamus seeking to compel the project’s approval.2 The trial court denied the petition, ruling that the project did not satisfy the City’s design guidelines for multifamily homes and that, to the extent the HAA required the City to ignore its own guidelines, it was an unconstitutional infringement on the City’s right to home rule and an unconstitutional delegation of municipal powers.
2 The petition was also brought on behalf of San Francisco Bay Area Renters Association, which is not a party to this appeal. 3 We conclude otherwise. The design guideline the City invoked as part of its reason for rejecting this housing development is not “objective” for purposes of the HAA, and so cannot support the City’s decision to reject the project. And because the HAA checks municipal authority only as necessary to further the statewide interest in new housing development, the HAA does not infringe on the City’s right to home rule. Rejecting the City’s other constitutional arguments as well, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Tony Gundogdu submitted an application to build a four-story, ten-unit multifamily residential building (the building or the project) in San Mateo in 2015. As proposed, the building would stretch the length of a block on North El Camino Real, bounded by El Camino Real on the east, West Santa Inez Avenue at the south, and Engle Road at the north. West Santa Inez Avenue and Engle Road are both in residential neighborhoods of single-family houses. Immediately to the west of the project are a two-story house on West Santa Inez Avenue and a single-story house on Engle Road. The project site is designated in the City’s general plan—and zoned—for high-density multifamily dwellings, “R4” Zoning.
Staff to the City’s Planning Commission (the Commission) reviewed Gundogdu’s application and, after securing minor changes to the proposal, concluded it was consistent with the City’s general plan and its Multi-Family Design Guidelines (the Guidelines). Staff recommended the Commission approve the project. They reported that “[v]ariations in the roof forms help to create a transition” between the building and the single-family homes to the north and west, and that “[p]roposed landscaping helps to soften the structure and provide buffers to the adjacent single-family residences.” Alterations made at the behest of Commission staff included adding trellises 4 to facades “to create more articulation and add horizontal elements,” thus “reduc[ing] the appearance of height.”
The application came before the Commission in August 2017. At the hearing, a number of City residents opposed the project, on grounds including concerns that it was out of scale with the adjacent single-family residential area. The Commission continued the hearing. Before the next hearing, planning staff again recommended approval, subject to revised conditions.
The staff again proposed the Commission find the project is “in scale and harmonious with the character of the neighborhood” and “meets all applicable standards,” including that it “complies with the City’s MultiFamily Dwelling Design Guidelines.” On September 26, 2017, commissioners nonetheless expressed concern that the proposed building was out of scale with the houses in the neighborhood, and the Commission voted to disapprove the project, directing staff to prepare findings for denial. So directed, the staff next proposed findings that the project is “not in scale and . . . not harmonious with the character of the neighborhood.” The building is “too tall,” “too large and bulky for the subject site due to [its] four-story height,” and “not in keeping with the smaller one and two story dwellings in the area.” Key to this case, the proposed findings noted that on the Engle Road side there is a two-story differential between the project and adjacent single-family dwellings (ignoring the fourth story, which is stepped back). Thus, “[t]he project is not in substantial compliance with” the Guidelines’ limitations on building scale, which direct that if there is more than a one-story variation in height between adjacent buildings, “a transition or step in height is necessary,” including that a project should “step back upper floors to ease the transition.” 5 Adopting these proposed findings in full, the Commission denied the project without prejudice on October 10, 2017. The City Council considered the appeal on February 5, 2018, and upheld the Commission’s decision, also denying the application without prejudice. Appellants then brought this action seeking a writ of administrative mandamus (Code Civ. Proc., § 1094.5) on the ground the denial violated the HAA.
The trial court denied the petition. Before doing so, the court asked the parties for additional briefing on a number of issues, including the following:
“If either party contends that some aspect of [subdivision] (f)(4) is or is not enforceable or is or is not applicable to this action, the parties are ordered to provide all authority supporting that contention.” In response, the City argued that the HAA’s subdivision (f)(4) violates the California Constitution by infringing on the City’s right to “home rule”—or control of its own municipal affairs as a charter city—and by unlawfully delegating municipal functions to private parties, and that subdivision (f)(4) raises due process concerns because it deprives neighboring landowners of a meaningful hearing. CARLA did not address these issues, either in its briefing or at the hearing on the petition.
The trial court in its ruling found that the City’s Guidelines were “ ‘applicable, objective’ ” standards for purposes of the HAA and that the project did not satisfy the Guidelines, and accordingly stated it would deny the petition for writ of mandate. Despite reaching this seemingly dispositive result, the court went on to conclude that, to the extent the HAA conflicted with “otherwise enforceable portions of the city’s Municipal Code regarding review of housing development projects,” it was unenforceable as an impermissible intrusion into the City’s municipal affairs under the home rule doctrine of the California Constitution (Cal. Const., art. XI, § 5(a)) and 6 violated the prohibition on delegation of municipal affairs to private parties (Cal. Const., art. XI, § 11(a)). With these sweeping conclusions, the court had no occasion to reach the City’s due process argument.
The court later denied CARLA’s motion for a new trial, and this timely appeal ensued. Before this court, CARLA defends the constitutionality of the HAA and argues the project meets all applicable standards. Intervening, the Attorney General argues that the HAA is constitutional and that the trial court erred in deferring to the City’s interpretation of its Guidelines. (See Code Civ. Proc., §§ 664.5, subd. (e), 902.1.) The City urges us to affirm the trial court’s judgment without reaching the constitutional issues, but also contends that CARLA’s interpretation of the HAA violates the California Constitution. And numerous amici have weighed in with helpful briefs.3
DISCUSSION
Because it is fundamental, we begin with a careful examination of the HAA as it operates and has evolved in the context of California’s system for approving new housing development. We then address whether the City’s denial of this project application violates the HAA; if, as the City urges, we answer that question in the negative, we need not reach the constitutional issues. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66 [courts do not decide constitutional issues unnecessarily].) Because we 3 In support of appellants are the Building Industry Association-Bay Area, the San Francisco Bay Area Planning and Urban Research Association, Bay Area Council, and Housing Action Coalition; Californians for Homeownership and the California Association of Realtors®; Habitat for Humanity Greater San Francisco, Inc.; and law professors Christopher S.
Elmendorf, Michelle Wilder Anderson, Anika Singh Lemar, Dave Owen, Darien Shanske, and Kenneth Stahl. In support of respondents are the League of California Cities and the California State Association of Counties. 7 conclude that the City’s decision did violate the HAA, we go on to address the constitutionality of, and uphold, the statute.
I. The Housing Accountability Act
More than 50 years ago, the Legislature enacted a broad measure requiring counties and cities to “ ‘adopt a comprehensive, long-term general plan for the physical development of the county or city,’ ” with a housing element designed to promote adequate housing for the community. (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 444 (San Jose), quoting Gov. Code., § 65300 et seq., enacted by Stats. 1965, ch. 1880, § 5.) The Legislature went further in 1980 with the Housing Element Law, which “set forth in considerable detail a municipality’s obligations to analyze and quantify the . . . locality’s share of the regional housing need as determined by the applicable regional ‘ “[c]ouncil of governments” ’ (Gov. Code., § 65582, subd. (b)), and to adopt and to submit to California’s Department of Housing and Community Development a multiyear schedule of actions the local government is undertaking to meet these needs. (Id., §§ 65583–65588.)” (San Jose, at p. 445; see Elmendorf, Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts (2019) 71 Hastings L.J. 79, 100–103.) Local governments prepare housing elements, but the state’s Department of Housing and Community Development must approve them. (San Jose, at p. 445.)
Since 1980, local governments have failed to approve, and developers have failed to build, housing in quantities approximating regional housing needs. As an example, a report of the Civil Grand Jury of Santa Clara County shows that of 16 jurisdictions in the county, fewer than half met their regional housing needs assessment between 2007 and 2014. (Civil Grand Jury of Santa Clara County, Affordable Housing Crisis: Density is our 8 Destiny (June 2018), p. 7.) And the California Department of Housing and Community Development reported in 2018 that for the previous ten years, California had averaged fewer than 80,000 new homes permitted annually— less than half the projected need for 180,000 homes a year. (Dept. of Housing and Community Development, California’s Housing Future: Challenges and Opportunities, Final Statewide Housing Assessment 2025 (Feb. 2018) p. 5.) A report from the California Legislative Analyst’s Office found a similar shortfall for the entire period of 1980 to 2010, and attributed it in part to community resistance to new housing, facilitated by laws allowing cities and counties to control when and where development occurs. (Legislative Analyst’s Office, California’s High Housing Costs: Causes and Consequences (Mar. 2015) pp. 15, 21.)
Against this backdrop, the Legislature enacted in 1982 the HAA, colloquially known as the “Anti-NIMBY” (Not-In-My-Back-Yard) law, and it has amended the statute repeatedly in an increasing effort to compel local governments to approve more housing. (§ 65589.5, subd. (a); Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 295–297 (Ruegg); Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1068 (Honchariw).) As originally enacted—and still generally today—the HAA provides that when a proposed housing development complies with applicable general plan, zoning, and development policies, the local agency may disapprove the project (or approve it on condition that it be developed at lower density) only if the local agency finds that the project would have a specific, adverse, and unavoidable impact on public health or safety. (Stats. 1982, ch. 1438, § 2; Honchariw, at pp. 1074–1075; § 65589.5, subd. (j)(1).) Ensuing amendments to the HAA have sought to serve and clarify the Legislature’s intent. In 1990, the Legislature made the HAA expressly 9 applicable to charter cities. (Former § 65589.5, subds. (a)(1) & (2), (g); Stats. 1990, ch. 1439, § 1.) In 1999, the Legislature amended the operative language of subdivision (j) to narrow the kinds of policies that could be invoked to defeat an application, adding the italicized words: “When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria,” the project cannot be denied or reduced in density without the specified health and safety findings. (Stats. 1999, ch. 968, § 6, italics added.) A 2002 amendment clarified that the phrase “general plan and zoning standards and criteria” includes “design review standards.” (Stats. 2002, ch. 1721, § 1.) And a 2005 amendment authorized fines if a local agency denied a project in bad faith. (Former § 655589.5, subd. (l); Stats. 2005, ch. 601, § 1.)
In 2016, the Legislature added an enhanced standing provision, allowing not only a person eligible for residency in a development but also a housing organization to bring an action to challenge a local agency’s disapproval of a housing development. (Former § 655589.5, subd. (k)(1) & (2), Stats. 2016, ch. 420, § 1.)
Still dissatisfied with the dearth of housing in this state, the Legislature in 2017 passed further amendments to the HAA, supported by detailed findings. The Legislature added a provision requiring that an applicant receive timely written notice and an explanation if an agency considers a proposed housing development inconsistent with applicable standards. (§ 65589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.) It heightened fines for bad faith disapproval of a project. (§ 65589.5, subd. (l); Stats. 2017, ch. 378, § 1.5.) And it increased the burden of proof required for a finding of adverse effect on public health or safety. (§ 655589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.)
10 Most importantly for our purposes, the Legislature added subdivision (f)(4), which provides, “For purposes of this section, a housing development project . . . shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project . . . is consistent, compliant, and in conformity.” (Stats. 2017, ch. 378, § 1.5.) Finally, the Legislature added this interpretative gloss on the statute:
“It is the policy of the state that [the HAA] should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5, subd. (a)(2)(L), Stats. 2017, ch. 378, § 1.5.)
In this case, the City made no findings regarding an adverse impact on public health or safety, and no party contends this portion of the statute is relevant to our analysis. Also not at issue are separate provisions of the HAA addressing below-market-rate housing and emergency shelters. (See, e.g., § 65589.5, subds. (d), (h)(3), (k)(1)(A)(ii).) The key provision for our review is subdivision (j), which now provides that in the absence of health and safety findings a local agency may not disapprove or reduce the density of a proposed housing development that “complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.” (§ 65589.5, subd. (j)(1).)
II. The City’s Rejection of the Project Violated the HAA A. Standard of Review
CARLA brings this petition for administrative mandamus under Code of Civil Procedure section 1094.5, seeking to enforce the HAA. (See 11 § 65589.5, subd. (m).) Our task is therefore to determine whether the City “proceeded in the manner required by law,” with a decision supported by the findings, and findings supported by the evidence; if not, the City abused its discretion. (Code Civ. Proc., § 1094.5, subd. (b); Honchariw, supra, 200 Cal.App.4th at p. 1072.)
To the extent our decision rests on factual issues, our scope of review is identical to that of the trial court. We examine the findings of the public entity itself and the relevant materials in the administrative record to determine whether the decision should be upheld, reviewing the City’s action, and not the trial court’s decision. (See Kalnel Gardens, LLC v. City of Los Angeles (2016) 3 Cal.App.5th 927, 937–938.) However, instead of asking, as is common in administrative mandamus actions, “whether the City’s findings are supported by substantial evidence” (ibid.), we inquire whether there is “substantial evidence that would allow a reasonable person to conclude that the housing development project” complies with pertinent standards. (§ 655589.5, subd. (f)(4).) As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)
Questions of law, including the proper interpretation of a statute, we review independently, although we may take into account an agency’s interpretation of its own rules in appropriate circumstances. (Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 8 (Yamaha).) Where the constitutionality of a statute is challenged, we bear in mind that “a statute, once duly enacted, ‘is presumed to be constitutional,’ ” such that any “ ‘[u]nconstitutionality must be clearly shown.’ ” (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1086.)
12 B. General Plan and Multifamily Design Guidelines
One of the goals enumerated in the housing element of the City’s general plan is to “[m]aintain the character and physical quality of residential neighborhoods.” To that end, the housing element establishes a policy of “[r]eview[ing] development proposals for conformance to the City’s multi-family design guidelines for sites located in areas that contain substantial numbers of single-family homes.” “[N]ew multi-family projects in areas having a predominance of single-family residences should be of a scale and include design features which are compatible with surrounding singlefamily homes,” the housing element directs, “while maintaining housing affordability as a major goal.”
The urban design element of the general plan also notes that the City adopted the Guidelines because “the character of the neighborhood,” including the scale of its buildings, is important in a residential area. To maintain and enhance the character of residential neighborhoods, the urban design element includes a policy to “[e]nsure that new multi-family developments substantially conform to the City’s Multi-family and Small Lot Multi-family Design Guidelines. . . .”
The portion of the Guidelines with which the City found the project inconsistent addresses building scale. The Guidelines provide, under the topic “Height,” as follows: “Most multi[-]family neighborhoods in San Mateo are 1 to 4 stories in height. When the changes in height are gradual, the scale is compatible and visually interesting. If height varies by more than 1 story between buildings, a transition or step in height is necessary. Any portion of a building constructed taller than surrounding structures should have the taller section built to a width that acknowledges the traditional building width pattern of the City—generally 30 to 50 feet in width.” The 13 design objectives listed for this guideline are, “Avoid changes in building height greater than one story from adjacent structures. If changes are greater, stepback upper floors to ease the transition,” and “Construct taller portions at traditional building widths, generally 30 to 50 feet wide.” (Partial italics omitted.)
An accompanying illustration shows an appropriate design in which “[u]pper floors of the multi[-]family building are stepped[ ]back where adjacent to an existing building that is two stories lower.” In that illustration, no adjacent portion of the larger building is more than one story higher than the smaller existing building. An illustration of an inappropriate design shows a two-story house next to a box-like four-story multifamily building.
C. Application of the HAA
The pivotal question in our application of the HAA is whether the Guidelines qualify as “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards,” which would allow the City to disapprove the project if they are not satisfied. (§ 65589.5, subd. (j)(1).) As to the portion of the Guidelines that addresses height, we conclude the Guidelines do not qualify as objective for purposes of the HAA.
As an initial matter, the parties disagree on the standard of review.
The City urges that the issue be treated as one of law, subject to our de novo review as an issue of statutory interpretation but with deference to the City in interpreting its own rules. CARLA urges us to apply, to legal as well as factual issues, subdivision (f)(4)’s mandate that a project is deemed consistent with applicable standards if there is substantial evidence allowing a reasonable person so to conclude.
14 We model our answer on the decision of our colleagues in Division Two of this court in Ruegg. In construing a different statute intended also to restrict local authorities’ ability to deny applications for new housing, they considered whether a project “ ‘would require the demolition of a historic structure that was placed on a national, state, or local historic register.’ ” (Ruegg, supra, 63 Cal.App.5th at p. 301, quoting § 65913.4, subd. (a)(7)(C).) This question, the Ruegg court concluded, had both a legal and a factual component: whether the type of object at issue, an ancient shellmound, was a “ ‘structure’ ” within the meaning of the statute was a question of statutory interpretation to be reviewed de novo; whether a shellmound existed on the project site was a question of fact. (Ruegg, at p. 301.) Similarly here, we conclude that whether the height standards in the Guidelines are “applicable” and “objective” for purposes of the HAA is a question of law; whether the project is consistent with those standards is one of fact, to be evaluated under the standards of subdivision (f)(4). The questions of whether the height guidelines are “applicable” and “objective” require us to discern the meaning and legal effect of the HAA and the Guidelines, so they are questions of statutory interpretation we will review independently. (Yamaha, supra, 19 Cal.4th at p. 8.)
The first issue—applicability—is straight-forward. Relying on Honchariw, CARLA argues that to fall within the scope of section 65589.5 a standard must be part of a city’s “general plan, zoning, and subdivision standards and criteria.” (§ 65589.5, subd. (j); Honchariw, supra, 200 Cal.App.4th at p. 1077.) We are unpersuaded. The Guidelines, adopted in November 1994, recite that they are intended to implement multiple general plan policies, including a general plan directive to “[p]repare specific guidelines for multi[-]family development that address the preservation and 15 enhancement of neighborhood character,” including by addressing “building scale.” The applicable version of the City’s general plan, mostly recently amended in 2015, specifically refers to the Guidelines in its housing and urban design elements, effectively incorporating them by reference. In the circumstances, we conclude the Guidelines fall within the scope of “general plan . . . standards and criteria, including design review standards.” (§ 65589.5, subd. (j)(1).)
CARLA fares better with its second argument, that the Guidelines do not provide objective standards for purposes of the HAA. At the time of the events at issue here, the HAA did not define the term “objective,” so we look to the ordinary meaning of that term. One dictionary defines “objective” as “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 799.) The definition added to the HAA effective January 1, 2020 is a longer version of the same idea. The HAA now defines “objective” as “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5, subd. (h)(8), added Stats. 2019, ch. 665, § 3.1.) Using either of these definitions, a standard that cannot be applied without personal interpretation or subjective judgment is not “objective” under the HAA.
Further guidance is found in Honchariw, which looked at the Legislature’s purpose in adding the word “objective” to the HAA. Honchariw explains that an amendment made in 1999 to subdivision (j) of section 65589.5, replacing an earlier reference to “ ‘applicable general plan, zoning, and development policies’ ” with “ ‘applicable, objective general plan and 16 zoning standards and criteria,’ ” “appears to have been intended to strengthen the law by taking away an agency’s ability to use what might be called a ‘subjective’ development ‘policy’ (for example, ‘suitability’) to exempt a proposed housing development project from the reach of subdivision (j).” (Honchariw, supra, 200 Cal.App.4th at pp. 1076–1077.) On their face, the Guidelines’ provisions regarding the relative height of multifamily buildings and adjacent single-family houses are certainly less vague or subjective than a term such as “suitable.” But, in our view, they nevertheless require personal interpretation or subjective judgment that may vary from one situation to the next.
First, the language of the Guidelines is ambiguous as to whether a proposed building must incorporate a stepback in height when a project is taller than adjacent buildings. The applicable portion of the Guidelines states that if height varies by more than one story between buildings, “a transition or step in height is necessary.” (Italics added.) One reasonable reading of this language is that a transition that is something other than a step in building height may be acceptable. Indeed, to read it otherwise would render the words “transition or” superfluous.
An interpretation that allows for a transition other than one accomplished by a step in height is consistent with the City’s consultant’s assessment—which planning staff appear originally to have shared—that trees between the project and the nearest house on Engle Road and a nearby street tree would “substantially mitigate [the] height differential.” The project calls for four large trees—each depicted as almost two stories tall—to run along the property line between the project and its nearest Engle Road neighbor. Can large trees provide an adequate “transition or step in height”? Answering this question not only allows, but requires, interpretation or 17 judgment. Under the planning staff’s original interpretation of the Guidelines, the question is treated as one of design choice, which may be resolved in myriad ways depending on what form the designer views as most “compatible” with adjacent structures and “visually interesting.” A similar question arises with regard to trellises. The project includes, attached to the building along the Engle Road side, a trellis or arbor that looks to be about 10 feet wide and that creates a covered walkway alongside the building, next to the row of new trees. This trellis approximates the first floor in height, and a series of smaller trellises, each appearing to be two to three feet wide, also attaches to the building over windows at the level of the second story. Since these trellises are affixed to or abut the building’s facade, perhaps the project’s footprint includes the trellises, such that the building steps back from that footprint at the second and third floors on the Engle Road side. But if the trellises do not create a stepback, do they nonetheless create an adequate “transition”? Again, there is no clear answer to this interpretive question, and reasonable designers may disagree on the most satisfactory solution.
Second, to the extent the Guidelines do require a stepback in building height excluding trellises, the Guidelines offer no guidance on how extensive such a stepback must be. Where a stepback is required, it is unclear how far back upper floors of the building must step. In response to a question at oral argument, counsel for the City assessed a six-inch stepback of upper floors as sufficient for compliance with the Guidelines, although such a small setback would provide a less robust visual transition to the single-story home next door than would the much larger trellises and trees on which the project applicant relies. Also unclear is how far along a building’s aspect a stepback must run. Is the City concerned primarily with street view, or should a 18 stepback run the length of the building? The Guidelines do not address this issue. Then there is the question of how many floors must be stepped back when a four-story project is adjacent to a single-story home. On this question, the City itself has taken different positions during the course of this dispute. The City Attorney who explained the stepback requirement to the City Council appears to have said that the Guidelines require every floor above the first to be stepped back along the Engle Road side, which is the position the City defended in its briefing in the trial court. In this court, however, the City maintains that the Guidelines require the third and fourth floors—but not the second—to be stepped back.
The City is certainly capable of setting more specific standards, as the Guidelines themselves show. The requirements for setbacks from property lines specify to the foot the required setbacks, and they further provide different setback standards where buildings are more than three stories in height, are adjacent to properties zoned R1 or R2, or are on specified blocks of El Camino Real. There are even more detailed standards for setbacks from property lines and stepbacks in height in the Gateway area of the City; for instance, “South side of Third Avenue and Fourth Avenue: Buildings shall be set back a minimum of 15’ to a maximum of 20’ from the Fourth Avenue property line for at least 60 % of the building frontage. Portions of the building over 30’ [in] height shall be stepped back 8’ minimum.” (Italics added.) Particularly relevant to this case is the specific height standard for R4 zoning at the project site, which according to a City staff report allows a maximum building height of 45 feet. The building here tops out at 38 feet, demonstrably within that quantitative limit.
The Guidelines standard on height, by contrast, provides no such specificity, and on its face requires interpretation and subjective judgment. 19 This is no knock on the Guidelines. They were adopted in 1994, before the HAA required objective criteria, when Guidelines could appropriately leave such ambiguities to the discretionary judgment of staff and elected officials.
In the exercise of such discretion the City’s planning staff and its experienced consultant originally concluded the project complied with the Guidelines; exercising their discretion, the Commission and City Council later determined that it did not. The problem for the City is that since 1999, the HAA has required that a City rely only on objective, not discretionary, criteria in rejecting applications to build new housing.
The Legislature insists on objective criteria so as to ensure “reasonable certainty . . . to all stakeholders” about the constraints a municipality will impose. (Assem., 3d reading analysis of Assem. Bill No. 1515, as amended May 1, 2017, p. 2.) Reasonable certainty is important to Department of Housing and Community Development officials, so they understand the impact of a locality’s housing element in deciding whether to approve it.
Reasonable certainty is important to neighbors, who want to know how big a building can be erected next door, and it is important to those who build housing, so they know what size project can be approved for a particular site.
Yet reasonable certainty in application—that is, objectivity—is precisely the test that the height provisions of the Guidelines fail.
The City protests that an argument over interpretation does not mean the Guidelines lack objectivity. In another case posing a discrete interpretive issue that might be true, but here the ambiguities in the Guidelines’ height standard are pervasive and not amenable to objective resolution. The problem is fundamentally different from the narrow interpretive issue posited by amici: a quantitative ordinance requiring roads to be designed to support a load of “ ‘25 ton[s],’ ” which leaves to interpretation whether a short 20 ton, a long ton, or a metric ton is intended. A definitional question of this type can be resolved objectively (e.g., by reference to common usage in a community or trade), leaving room for a single standard, knowable in advance, to be applied to all. The standards imposed by the height Guidelines, by contrast, are too ambiguous to be similarly susceptible to objective interpretation.
To resolve the pervasive ambiguities, the City asks us to defer to its interpretation of its own Guidelines. As the City points out, where the meaning of an enactment is at issue, the interpretation of an agency charged with enforcing it is one tool available to the court as it exercises its independent judgment (Yamaha, supra, 19 Cal.4th at pp. 6–8; Ocean Park Associates v. Santa Monica Rent Control Bd. (2004) 114 Cal.App.4th 1050, 1062), and in appropriate situations we may accord “ ‘great weight’ ” to the agency’s construction (Yamaha, at p. 12; Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 911 (Boling)). This rule applies to a city’s interpretation of its own ordinances. (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 434; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193.) Crucially, however, such weight is given to consistent administrative construction of an enactment, particularly when the agency’s interpretation is “of long standing.” (Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1228, citing Yamaha, supra, 19 Cal.4th at p. 13; see Tower Lane Properties v. City of Los Angeles (2014) 224 Cal.App.4th 262, 278.) “[L]awmakers are presumed to be aware of long-standing administrative practice and, thus, . . . the failure to substantially modify a provision[] is a strong indication the administrative practice was consistent with underlying legislative intent.” (DeYoung v. City of San Diego (1983) 147 21 Cal.App.3d 11, 18–19, disapproved on another ground in Yamaha, supra, 19 Cal.4th at p. 15.)
This principle of deference does not assist the City here because the record does not show a long-standing and consistent interpretation of the Guidelines’ requirement for “a transition or step in height.” Rather, the record suggests the opposite. In its initial design review, the planning staff concluded that, with certain modifications, the project satisfied the Guidelines. Staff reached this conclusion after the design review consultant for the City reported, in a letter attached to the staff report, that the height differential at the portion of the project that was not stepped back adjacent to the Engle Road house was “problematic[]” but would be substantially mitigated by the trees at the property line and the street trees. Thus, fully aware of the issue, the City’s planning staff nevertheless assessed that the project was consistent with the Guidelines, and so reported to the Commission. The record does not indicate the Commission disagreed with this assessment when it directed staff to prepare findings to deny the project.
Rather, the commissioners expressed more general concern about the size and density of the project in relation to the neighboring residences. Staff pointed to an inconsistency with the height Guideline for the first time only after the Commission decided to deny the application. This record belies the notion that the City has consistently construed the height standards in the manner it now urges.
The City also argues that deference is appropriate because of its greater familiarity and expertise in applying the Guidelines. In an appropriate case, courts “are inclined to defer to a government entity’s interpretation of its own regulation ‘ “since the agency is likely to be intimately familiar with regulations it authored and sensitive to the practical 22 implications of one interpretation over another.” ’ ” (J. Arthur Properties, II, LLC v. City of San Jose (2018) 21 Cal.App.5th 480, 486; see also East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, 305 [deferring to city’s determination of a project’s consistency with its general plan “because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity”]; Boling, supra, 5 Cal.5th at p. 911 [affording greater weight to an agency’s construction of a statute “ ‘when “ ‘the legal text to be interpreted is technical, obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion’ ” ’ ”].) Such deference makes sense where a local agency must weigh and balance competing interests in applying policies that require broad discretion. (East Sacramento Partnerships, at p. 305.) But land use decisions under the HAA are different. Precisely because the HAA cabins the discretion of a local agency to reject proposals for new housing, it is inappropriate for us to defer to the City’s interpretation of the Guidelines.
We must engage in “ ‘more rigorous independent review . . . in order to prevent the City from circumventing what was intended to be a strict limitation on its authority.’ ” (Ruegg, supra, 63 Cal.App.5th at p. 299, quoting San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 669–670.)
The City’s request that we defer to its interpretation of the Guidelines serves as a tacit acknowledgement that the height Guidelines require something other than objective interpretation. But the HAA requires municipalities to apply standards that are both “objective” and “in effect at the time that the application was deemed complete” (§ 65589.5, subd. (j)(1)), 23 not to apply standards that are rendered objective only by adding an afterthe-fact interpretive gloss.
Our conclusion that the applicable portion of the Guidelines does not provide an objective standard is confirmed by considering subdivision (f)(4) of the HAA, which complements and reinforces subdivision (j)’s objectivity requirement. Added in 2017 as the Legislature sought to strengthen the HAA, subdivision (f)(4) deems a project consistent with applicable objective standards “if there is substantial evidence that would allow a reasonable person to conclude that the [project] is consistent, compliant, or in conformity” with such standards. (§ 65589.5, subd. (f)(4).) The City sees all manner of mischief in this standard—as we will see shortly in the next section—but where a standard is truly objective, in that it is “uniformly verifiable by reference to an external and uniform benchmark” (§ 65589.5, subd. (h)(8), italics added), there is little to no room for reasonable persons to differ on whether a project complies with such a benchmark. Subdivision (f)(4) is intentionally deferential to housing development. It is also an excellent backstop to ensure that the standards a municipality are applying are indeed objective.
Applying subdivision (f)(4) in this case leads to the conclusion that the City violated the HAA for much the same reason as we have found the pertinent Guideline not to be objective. A reasonable person could read the Guideline to allow a “transition” comprised of trees rather than a stepback in building height, or could find a sufficient stepback where the building recedes from a project footprint that includes the ground-floor trellises. Reasonably concluding that the proposed landscaping and trellises do provide the requisite transition, the City’s planning staff and consultant originally found the project consistent with the Guidelines, while the Commission and City 24 Council later determined, again reasonably, that the project does not comply because of an insufficient stepback of (at least) the third floor. The plausibility of both views demonstrates that the height guidelines are not objective and that a reasonable person could conclude the project satisfies them. Whether one focuses on the first, subdivision (j)(1) question or on the second, applying subdivision (f)(4), the effect is the same.
To the extent the question of whether the City denied the project for failure to conform to an objective standard is close, recall that the City has the burden to show its decision conformed to the HAA (§ 65589.6), and that the Legislature has declared the HAA must be interpreted and implemented to “afford the fullest possible weight” to the approval of housing (§ 65589.5, subd. (a)(2)(L)). Although the HAA should not be construed to prohibit local governments from requiring compliance with “objective, quantifiable, written development standards” that are consistent with meeting the jurisdiction’s share in regional housing need (§§ 65589.5, subd. (f)(1), 65583), the criteria at issue here are neither objective nor quantifiable. We therefore conclude that the City did not “proceed[] in the manner required by law” in denying approval of the project based on its interpretation of the height Guideline, and the trial court erred in determining otherwise. (Code Civ. Proc., § 1094.5, subd. (b).)
In reaching this conclusion, we emphasize two things. First, the HAA does not prevent local agencies from establishing and enforcing appropriate design review standards. But those standards must be objective and they must be in place at the time an application is complete. (§ 65589.5, subd. (j)(1).) Second, even with respect to standards that are not objective, the HAA does not bar local agencies from imposing conditions of approval; rather, it prohibits conditions of approval “that the project be developed at a lower 25 density,” unless public health or safety findings are made. (§ 65589.5, subd. (j)(1), italics added.) Thus, nothing in our opinion prevents the City from imposing appropriate conditions of approval to mitigate any effects the height differential may have on the surrounding neighborhood, as long as those conditions do not reduce the density of the project.
III. Constitutionality of HAA
Having concluded the City abused its discretion in denying the project based on inconsistency with the height guidelines, we must reverse unless persuaded by the City’s arguments that the HAA transgresses provisions of the California Constitution. We consider the trial court’s ruling that the HAA in general and subdivision (f)(4) in particular violate the home rule doctrine for charter cities, and the prohibition on delegation of municipal functions. We also consider the City’s contention that subdivision (f)(4) would result in a meaningless, predetermined hearing that does not comport with due process.
In so doing, we reject out of hand the City’s contention that CARLA waived its defense of the HAA’s constitutionality when it failed to address this issue in the trial court. Even if CARLA’s failure to anticipate and respond to a constitutional challenge that was neither pleaded nor argued could somehow oblige us to acquiesce in striking down a duly enacted statute—a proposition absurd on its face—the trial court’s cryptic invitation to address the enforceability of subdivision (f)(4) said nothing about the enforceability of the HAA as a whole and made no reference to the constitutionality of the statute. There was no waiver of the issue we now consider, and in any event the Attorney General has, as authorized by statute, intervened to defend the HAA’s constitutionality. (Code Civ. Proc., §§ 664.5, subd. (e), 902.1.)
26 A. Home Rule
California’s Constitution authorizes charter cities to “govern themselves, free of state legislative intrusion, as to those matters deemed municipal affairs.” (State Building & Construction Trades Council of California v. City of Vista (2012) 54 Cal.4th 547, 555; Cal. Const., Art. XI, § 5.) As to truly municipal affairs, “charter cities are ‘supreme and beyond the reach of legislative enactment.’ ” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 12 (California Fed. Savings).) To determine whether the Legislature may exert control over the actions of a charter city despite its right to home rule, we apply a four-part test: First, we “determine whether the city ordinance at issue regulates an activity that can be characterized as a ‘municipal affair.’ [Citation.] Second, the court ‘must satisfy itself that the case presents an actual conflict between [local and state law].’ [Citation.] Third, the court must decide whether the state law addresses a matter of ‘statewide concern.’ [Citation.] Finally, the court must determine whether the law is ‘reasonably related to . . . resolution’ of that concern [citation] and ‘narrowly tailored’ to avoid unnecessary interference in local governance [citation]. ‘If . . . the court is persuaded that the subject of the state statute is one of statewide concern and that the statute is reasonably related to its resolution [and not unduly broad in its sweep], then the conflicting charter city measure ceases to be a “municipal affair” pro tanto and the Legislature is not prohibited by article XI, section 5(a) from addressing the statewide dimension by its own tailored enactments.’ ” (City of Vista, at p. 556, quoting California Fed. Savings, at pp. 16, 17, 24; accord, Anderson v. City of San Jose (2019) 42 Cal.App.5th 683, 698–699 (Anderson).) In this analysis, “ ‘the question of statewide concern is the bedrock inquiry through which the conflict between state and 27 local interests is adjusted.’ ” (Anderson, at p. 699.) “[W]e exercise our independent judgment in interpreting the state law to identify whether it addresses a matter of statewide concern and can be applied constitutionally to the City.” (Id. at pp. 704–705.)
The City does not defend the court’s sweeping rejection of the HAA, limiting its constitutional challenge instead to what it characterizes as CARLA’s and the Attorney General’s “extreme” interpretation of subdivision (f)(4). Despite the parties’ failure to defend the trial court’s conclusion that the HAA as a whole is unconstitutional, this was arguably an alternate basis for the trial court’s decision so we will consider the constitutionality of the HAA as a whole—its mandate that local governments rely only on objective standards to deny an application and the reasonable person standard of subdivision (f)(4).
As to the first prong of the home rule test, the parties agree that planning and zoning laws are a traditional municipal concern. (Ruegg, supra, 63 Cal.App.5th at p. 311; Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 Cal.App.5th 689, 704–705) As to the second prong, to the extent City ordinances allow proposed housing developments to be rejected based on standards that are not objective, municipal law appears directly to conflict with the HAA. (See Ruegg, supra, 63 Cal.App.5th at p. 314; cf. City of Huntington Beach v.
Becerra (2020) 44 Cal.App.5th 243, 270–271 [finding conflict where statute directly restricted regulation of city police force].) For purposes of this analysis, we will assume an actual conflict between the HAA and the City’s design review standards.
As to the third step, the parties agree that the provision of housing is a matter of statewide concern. The term “ ‘statewide’ refers to all matters of 28 more than local concern and thus includes matters the impact of which is primarily regional rather than truly statewide.” (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 505.) The City argues, however, that subdivision (f)(4) of the HAA does not itself address a matter of statewide concern because California’s housing crisis has other causes in addition to local governments denying approval for housing developments— causes including high construction costs, a shortage of construction labor, and delays caused by the California Environmental Quality Act (Pub. Res. Code, § 21000 et seq.; CEQA). And, the City contends, CARLA and the Attorney General have not shown that the housing crisis is caused by local governments’ actions in denying applications for housing projects. We find the City’s argument unpersuasive.
The Legislature has declared the shortfall in housing in California to be a matter of statewide importance (§ 65589.5, subds. (a)(1) & (2), (g)), and in other contexts both our high court and appellate courts have acknowledged the statewide nature of the interest in providing a stock of housing sufficient to meet the needs of all Californians. (See, e.g., San Jose, supra, at p. 441; Ruegg, supra, 63 Cal.App.5th at p. 312, Anderson, supra, 42 Cal.App.5th at pp. 708–709, 711; Buena Vista Garden Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 307.) The parties and amici have submitted abundant legislative history and other materials that reinforce the conclusion that a shortage of housing in our state has led to escalating costs that for many have rendered adequate shelter unaffordable.
The City’s argument looks past the statewide concern with a shortage of housing to focus instead on the means the HAA employs to address that concern (i.e., limits on local governments’ ability to disapprove or restrict projects). The City contends there has been no showing these actions by local 29 governments are a matter of statewide concern, but the court in Ruegg recently rejected a similar argument. A city there argued that the statewide interest in increasing affordable housing does not “ ‘translate into a statewide interest in eliminating local landmark preservation authority.’ ” (Ruegg, supra, 63 Cal.App.5th at p. 313.) Our colleagues rejected this theory as an “inapposite” framing of the issue, holding that a statute that streamlines approval of certain multifamily housing projects with below-market-rate units does not impermissibly interfere with a city’s “ ‘home rule’ authority over historic preservation.” (Ruegg, at pp. 310–315.) That the Legislature could have increased affordable housing without undermining local authority over historical preservation was immaterial: “the constitutionality of [the statute] does not turn on there being a statewide interest in limiting local historical preservation authority but rather on whether the statewide interest in increasing affordable housing sufficiently justifies the legislation’s impact on that authority.” (Id. at p. 313.) Indeed, “historical preservation is precisely the kind of subjective discretionary land use decision the Legislature sought to prevent local government from using to defeat affordable housing development.” (Id. at p. 315.) Similarly here, we consider not whether there is a statewide interest in limiting local governments’ authority to disapprove projects that comply with objective standards, but whether there is a statewide interest in increasing the state’s housing supply.
As our high court has explained, our inquiry is not whether the Legislature has enacted “prudent public policy” or whether its enactments will be “advisable or effective”; rather, it is whether the problem it addresses “is of sufficient extramural dimension to support legislative measures reasonably related to its resolution.” (California Fed. Savings, supra, 54 Cal.3d at pp. 23–24.)
30 We have no doubt that this standard is met. The Legislature’s findings and the mandates of the HAA itself confirm that the purpose of the statute is to address a matter of statewide concern. When extending the statute to reach charter cities in 1990, the Legislature found that actions and policies of local governments limiting the approval of affordable housing were a partial cause of the “excessive cost of the state’s housing supply.” (Former § 65589.5, subd. (a)(2); Stats. 1990, ch. 1439, § 1.) In 2001, the Legislature deleted the word “affordable” from this finding, concluding that local governments’ actions in limiting the approval of “housing” in general were a partial cause of its excessive cost. (Former § 65589.5, subd. (a)(2), now § 65589.5, subd. (a)(1)(B); Stats. 2001, ch. 237, § 1.) The Legislature reinforced this finding in the 2017 amendments, which declared that the Legislature intended in enacting and expanding the HAA to increase the approval of new housing by curbing local governments’ ability to deny or reduce the density of housing projects. (§ 65589.5, subd. (a)(2)(J) & (K); Stats. 2017, ch. 378, § 1.5.) Although we “ ‘may not simply abdicate to the Legislature’ [citation] the determination of statewide concern and the corresponding assignment of power between local and state government,” we nevertheless “ ‘defer[] to legislative estimates regarding the significance of a given problem and the responsive measures that should be taken toward its resolution.’ ” (Anderson, supra, 42 Cal.App.5th at pp. 707; see California Fed. Savings, supra, 54 Cal.3d at p. 24; Ruegg, supra, 63 Cal.App.5th at p. 312.) The City has done nothing to cast doubt on these legislative findings, which are well supported by case law. The HAA, which has the express purpose of ameliorating the housing crisis and seeks to accomplish this goal by increasing approval of housing developments (§ 65589.5, subd. (a)(2)(K)), 31 “patently addresses a matter of statewide concern.” (See Ruegg, supra, 63 Cal.App.5th at p. 312.)
In the fourth and final prong of our inquiry, we decide whether the statute is “ ‘ “reasonably related to . . . resolution” ’ of the identified statewide concern [citation] and is ‘ “narrowly tailored” to avoid unnecessary interference in local governance.’ ” (Anderson, supra, 42 Cal.App.5th at pp. 716–717.) At the outset, we agree with the Legislature that limiting local governments’ ability to deny new development based on subjective criteria is reasonably related to providing additional housing. (§ 65589.5, subds. (a)(1)(B), (a)(2)(J) & (K).) And we also have no doubt that the statute appropriately limits its incursions into municipal authority. (See Anderson, at pp. 716–717.) The HAA leaves local governments free to establish and enforce policies and development standards appropriate to local circumstances, as long as those policies and standards are consistent with meeting the jurisdiction’s share of the regional housing need and, if used to deny or reduce the density of housing developments, are objective so that their application is predictable. (§ 65589.5, subds. (f)(1) & (j).) The HAA’s reach is further narrowed by other provisions. Local governments are not barred from imposing conditions of approval that do not reduce density. (§ 65589.5, subd. (j)(1).) And the HAA includes an escape valve that allows municipalities to deny a project that would have an unavoidable adverse impact on health and safety. (§ 65589.5, subd. (j)(1)(A) & (B).) These provisions indicate not only that the HAA is reasonably related to the statewide problem the Legislature sought to redress but also that it “ ‘limit[s] the incursion into [the] city’s municipal interest’ ” so as to be narrowly tailored for purposes of the home rule analysis. (Anderson, supra, 42 Cal.App.5th at pp. 716–717.)
32 The City asserts that subdivision (f)(4) is not narrowly tailored to the extent it is interpreted to allow the local agency’s judgment to be replaced with “that of any person who can provide evidence of consistency”; this, the City urges, impinges on the local government’s “core functions” of hearing and weighing evidence and deciding by majority vote whether a project is consistent with legal requirements. We disagree that a proper reading of subdivision (f)(4) leads to a conclusion the HAA is not narrowly tailored. The effect of subdivision (f)(4) is simply to hold local governments to a standard of objectivity in their decisionmaking, such that if a reasonable person could find a housing development in compliance, it will be so deemed. If a municipality wishes to enforce limitations on housing developments, it must promulgate standards that are not so malleable that reasonable minds could differ on whether they are met. In short, the HAA does not wrest control from local governments so much as require them to proceed by way of clear rules adopted in advance, rather than by ad hoc decisions to accept or reject proposed housing.
In finding the HAA not narrowly tailored, the trial court suggested an appropriate limitation would be to apply the statute only where the administrative record showed objective evidence of bad faith by the public agency. But the parties have made no showing that this state’s insufficient supply of housing derives substantially from bad faith actions by cities and counties, and we will not presume that municipalities routinely proceed in bad faith when they apply their development laws and standards. Individual jurisdictions may well make decisions in good faith that nevertheless contribute to the collective shortfall in housing. It is to this collective action problem that the HAA is addressed, and it is because the Legislature concluded that earlier versions of the statute were not having a sufficient 33 impact that it amended the statute repeatedly. (See, e.g., Stats. 2017, ch. 378, § 1.5.) Given the extent and intractability of the housing shortfall, we see nothing improper in the Legislature addressing it on a statewide basis, without limiting the statute to local agencies that act in bad faith. We reject the trial court’s proposed limitation.
B. Delegation of Municipal Functions
California’s Constitution prohibits the Legislature from “delegat[ing] to a private person or body power to . . . perform municipal functions.” (Cal.
Const., Art. XI, § 11, subd. (a).) The City contends, and the trial court apparently agreed, that subdivision (f)(4) violates this prohibition. The City’s theory is that subdivision (f)(4) would allow anyone—even a private person such as a project proponent—to place into the record evidence indicating a project is consistent with objective standards and thereby force a local agency to approve the project. This, the City argues, would divest local authorities of final decisionmaking control in violation of the prohibition on delegation of municipal functions. (Citing Orange Citizens for Parks & Recreation v.
Superior Court (2016) 2 Cal.5th 141, 155.)
This argument is unpersuasive because subdivision (f)(4) does not “divest the [City] of its final decisionmaking authority.” (County of Riverside v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 20, 28; accord, County of Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, 340.) As we have already explained, nothing in the HAA prevents cities from establishing and enforcing objective land use and design standards that are consistent with their other obligations. (See § 65589.5, subds. (f)(1) & (j).) Although subdivision (f)(4) of the HAA lowers the burden to show a project is consistent with applicable objective standards, the statute cedes municipal authority to no private person. (Cf. County of Riverside v. Superior Court (2003) 30 34 Cal.4th 278, 283, 294 [Legislature impermissibly delegated authority to private person when it required local agencies to submit to private arbitration].) A city’s governing body retains broad authority, subject to judicial review, to exercise decisionmaking authority: to determine whether there is substantial evidence from which a reasonable person could conclude the project is consistent with the city’s applicable objective requirements; to deny or reduce the density of a project that does not meet such standards or that causes an unavoidable adverse impact on public health or safety; and to impose conditions of approval that do not reduce the project’s density where applicable objective standards are met. (§ 65589.5, subd. (f)(4) & (j)).
Viewing subdivision (f)(4) in the context of the entire HAA, we find no violation of the municipal nondelegation doctrine.
We are untroubled by the City’s suggestions that a governing body would be forced to approve a project if a proponent succeeds in “dig[ging] up” “self-serving evidence,” regardless of its weight, and that if a single staff member or member of the governing body opines that a project complies with objective standards then the local agency would be compelled to find it so.
The usual meaning of “substantial evidence” is “evidence that is ‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value,’ and ‘ “substantial” proof of the essentials which the law requires in a particular case.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.) In determining whether evidence is substantial, the test is whether it is “ ‘ “reasonable for a trier of fact to make the ruling in question in light of the whole record.” ’ ” (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992; see Code Civ. Proc., § 1094.5, subd. (c) [in administrative mandamus action, court reviews whole record to determine whether findings are supported by substantial evidence].) And subdivision (f)(4) of the HAA employs the 35 objective standard that evidence must be such as to allow a reasonable person to conclude the project is compliant. (See Speier v. The Advantage Fund, LLC (2021) 63 Cal.App.5th 134, 147.) There is thus no basis for concern that subdivision (f)(4) would require project approval based solely on the unsupported opinion of a single person, or on evidence that a reasonable person would not find credible and persuasive.
In short, the City’s claim that subdivision (f)(4) impermissibly delegates municipal authority fails because the HAA leaves to the public agency final authority to approve, condition, or deny a project.
C. Due Process
The City also contends that subdivision (f)(4) violates the due process rights of neighboring landowners by depriving them of a meaningful opportunity to be heard before a housing development is approved.
Land use decisions that “substantially affect the property rights of owners of adjoining parcels may constitute deprivations of property for purposes of procedural due process” (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 853), and those landowners are entitled to notice and an opportunity to be heard before a project’s approval (Horn v.
County of Ventura (1979) 24 Cal.3d 605, 616; van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 570). Due process requires an opportunity to be heard “ ‘ “ ‘at a meaningful time and in a meaningful manner.’ ” ’ ” (Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1126 (NRDC), citing Mathews v. Eldridge (1976) 424 U.S. 319, 333.) However, “action involving only the nondiscretionary application of objective standards” does not entitle neighboring landowners to these protections. (Horn, at p. 616.)
36 The City argues that subdivision (f)(4) renders local government review a useless exercise because if anyone submits evidence that a project is consistent with applicable standards the project is “ ‘deemed’ ” consistent and must generally be approved. The City points to NRDC, in which one party contended that a substantial evidence standard, while appropriate for judicial review, was inappropriate to the initial decision of an agency, because “if the petitioner adduces substantial evidence it wins, no matter how compelling the contrary evidence, [which] is the antithesis of due process.” (NRDC, supra, 28 Cal.App.4th at p. 1126.) NRDC is not persuasive because the court merely noted this argument, observing there was no need to address it since the court’s interpretation of the relevant statute avoided the issue.4 (NRDC, at p. 1126; Fish & G. Code, § 2074.2.) Moreover, NRDC did not consider—as we do here—the proper procedure when the issue is whether objective standards are met.
Even assuming due process protections apply to a municipality’s determination whether a project complies with objective standards under subdivision (f)(4), we see no violation here. As we have already discussed, the substantial evidence standard requires evidence that is “ ‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value’ ” 4 We note that it is not unheard of for agencies to be required to use a substantial evidence standard in making decisions. CEQA requires the preparation of an environmental impact report if “substantial evidence supports a fair argument” that a proposed project may have a significant effect on the environment, even if there is also substantial evidence it will not. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The City seeks to distinguish this rule as applying only to the initial decision whether to prepare an environmental impact report, not to the final decision whether to approve a project. We do not give undue weight to the CEQA analogy, but it shows that in appropriate circumstances agencies may be required to make decisions on a substantial evidence standard. 37 (Conservatorship of O.B., supra, 9 Cal.5th at p. 1006) in light of the whole record (In re Yolanda L., supra, 7 Cal.App.5th at p. 992). Nothing in subdivision (f)(4) prevents project opponents from seeking to demonstrate that the evidence of compliance does not meet this standard. Nor does the statute prevent neighbors from presenting, or the agency from considering, evidence that conditions of approval that do not reduce density could mitigate undesirable effects on neighbors, or that the project would have an unavoidable “specific, adverse impact upon the public health or safety” if approved at the proposed density. (See § 65589.5, subd. (j).) Subdivision (f)(4) may affect which arguments will carry the day, but it does not deprive a project’s opponents of a meaningful opportunity to be heard.
We return to the history of the HAA. As the Legislature has steadily strengthened the statute’s requirements, it has made increasingly clear that those mandates are to be taken seriously and that local agencies and courts should interpret them with a view to giving “the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5, subd. (a)(2)(L).) The HAA is today strong medicine precisely because the Legislature has diagnosed a sick patient. We see no inconsistency between the provisions of the HAA and the California Constitution.
VI. Further Issues
In denying the application, the City pointed to no assertedly objective standard that the project did not meet, other than the height Guideline. In the trial court, the City argued as a separate basis for denying the writ that the project violated the City’s objective standards for the dimensions of parking spaces. On appeal, the City does not contend we may affirm on this theory. Rather, it argues that if a writ of mandate issues, the City should be 38 allowed to consider the project’s compliance with parking standards on remand.
The parties agree that if we reverse the judgment of the trial court, the appropriate remedy is to direct the trial court to issue a writ of mandate ordering the City to comply with the HAA. Nothing we say is intended to preclude the City from reviewing on remand the project’s compliance with objective standards, including parking standards in effect at the time the application was deemed complete. (§ 65589.5, subd. (j)(1).)
DISPOSITION
The judgment of the trial court is reversed. The trial court shall issue a writ of mandate directing the City to (1) vacate its February 5, 2018 action upholding the Planning Commission’s decision to deny the application, and (2) reconsider the challenge to the Planning Commission’s decision in accordance with the views expressed in this opinion. The trial court may make any other appropriate orders that are consistent with this opinion.
Appellants shall recover their costs on appeal.
TUCHER, J.*
WE CONCUR:
STREETER, Acting P. J.
BROWN, J.
* Presiding Justice of the Court of Appeal, First Appellate District, Division Three, sitting by assignment pursuant to article VI, section 6 of the California Constitution.
39 Trial Court: San Mateo County Superior Court
Trial Judge: Hon. George A. Miram
Counsel for Appellants: Holland & Knight, Jennifer L. Hernandez, Daniel R. Golub, and Emily M. Lieban
Counsel for Amicus Curiae Miller Starr Regalia, Bryan W. Wenter; on behalf of Appellants: Paul B. Campos for Building Industry Association – Bay Area, San Francisco Bay
Area Planning and Urban Research
Association, Bay Area Council, and Housing
Action Coalition
Counsel for Amicus Curiae Californians for Homeownership: Matthew on behalf of Appellants: Gelfand; California Association of Realtors®:
June Babiracki Barlow
Counsel for Amicus Curiae Reed Smith, Raymond A. Cardozo and Kathryn on behalf of Appellants: M. Bayes for Habitat for Humanity Greater San Francisco
Counsel for Amicus Curiae Christopher S. Elmendorf, Michelle Wilde on behalf of Appellants: Anderson, Anika Singh Lemar, and Dave Owen for Law Professors
Counsel for Respondents: Goldfarb & Lipman, Dolores Bastian Dalton, Barbara E. Kautz, James T. Diamond, Jr., and
Rye P, Murphy; Shawn Mason, City Attorney
Counsel for Amicus Curiae Rural County Representatives of California, on behalf of Respondents: Arthur J. Wylene; California State Association of Counties, Jennifer B. Henning
Counsel for Amicus Curiae Colantuono, Highsmith & Whatley, Andrew L. on behalf of Respondents: Jared, and Matthew T. Summers for League of California Cities.
40 Counsel for Intervener: Xavier Becerra and Rob Bonta, Attorneys General; Thomas S. Patterson and Daniel A.
Olivas, Senior Assistant Attorneys General;
Mark R. Beckington and Christina Bull Arndt,
Supervising Deputy Attorneys General; and
Jonathan M. Eisenberg and David Pai, Deputy
Attorneys General
San Francisco Bay Area Renters Federation et al. v. City of San Mateo et al. (A159320, A159658) 59 11SB 35. 40 Main Street Offices v City of Los Altos
Filed
April 27, 2020
County of Santa Clara
Superior Court of CA
Clerk of the Court
19CV349845
By: atheoharis
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
40 MAIN STREET OFFICES, LLC,
Petitioner,
vs.
CITY OF LOS ALTOS, ct al.,
Respondents.
CALIFORNIA RENTERS LEGAL
ADVOCACY EDUCATION FUND, et al.,
Petitioners,
vs'.
CITY OF LOS ALTOS, et al.,
Respondents.
Case No. 19CV349845 (Lead case,
consol. with Case No. 19CV350422)
ORDER GRANTING CONSOLIDATED
PETITIONS FOR WRIT OF MANDATE
ORDER 9N SUBMITTED MATTER
These consolidated petitions for writ 0f mandate came on for hearing before the Honorable Helen E. Williams on January 15, 2020, at 9:00 am. in Department of the court Daniel R. Golub and Genna Yarkin of Holland Knight appeared for petitioner 40 Main Street Offices, LLC (Developer); Emily L. Brough of Zacks, Freedman Patterson appeared for ORDER GRANTING PETITIONS FOR WRIT 0F MANDATE
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28 petitioners California Renters Legal Advocacy Education Fund, San Francisco Bay Area Renters Federation, Victoria Fierce, and Sonja Trauss (collectively, Renters); Arthur J. Friedman 0f Sheppard Mullin Richter Hampton LLP appeared for respondents the City 0f Los Altos, the City 0f Los Altos City Council, and the City 0f L03 Altos Community Development Department (collectively, the City). The matter having been argued and submitted after the filing 0f posthearing supplemental briefing, no party having requested statement 0f decision under Code 0f Civil Procedure section 632 and rule 3. 590 0f the California Rules 0f Court in this hearing lasting less than eight hours, and the Court having carefully considered the pleadings, the papers filed by the parties, the matters 0f which tha Court takes judicial notice, the record received into evidence, the arguments 0f counsel, and the applicable law, Court finds and orders as follows:
I. Statement offhe Case
The lead case 0f these two consolidated actions is one for relief in mandate brought under Code 0f Civil Procedure sections 1085 and 1094.5 (first~third causes 0f action), as well as for declaratory relief (fourth cause 0f action). It is brought by Developer against the City. Deveioper has been trying t0 develop mixed—use building in downtown Los Altos for many years, having previously submitted multiple proposals all subject t0 discretionary review by the City.
Developer primarily alleges in its petition that the City unlawfully rejectad its latest proposal submitted under new, streamlined procedures established by Senate Bill 35 (Govt. Code, 65913.4, hereafter section 65913.4 or SB 35; further unspecified statutmy references are t0 the Govt. Code), remedial legislation enacted t0 promote the construction 0f housing within California. Developer further alleges that in rejecting the proposal, the City also violated the state Density Bonus Law (§ 65915) and the Housing Accountability Act (§ 65589.5), the provisions 0f both 0f which may be invoked, as they were here, in development application submitted under SB 35.
Renters separately filed their petition challenging the City’s course 0f conduct with respect t0 Developers’ proposed project (Case N0. 19CV350422). They allege their own direct and beneficial interests having been harmed in the City’s denial 0f Developer’s application for streamlined approval. This separate action against the City, commenced 0116 day before
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28 Developer’s action, has since been consolidated With Developer’s action. Renters’ petition in mandate is also brought under Code 0f Civil Procedure sections 1085 and 1094.5, and seeks relief in the first cause 0f action for the City’s alleged violations 0f SB 35 and the Housing Accountability Act. The second cause 0f action is for declaratory relief. Thus, Developer’s and Renters’ claims for relief against the City essentially overlap.
A. Summary QfAdmz'm'strative Record
1. Developer Appliesfor Streamlined Review
On November 8, 201 8, Developer applied for permission t0 construct mixed-use building with office space 0n the ground floor and residential units 0n the floors above at 40 Main Street in downtown L03 Altos. (AROOOOOI—AR000126 [application].) On the application cover sheet—a City form entitled “City 0f Los Altos General Applicati011”—~ Developer checked boxes indicating that the “type ofreview requested” was “C0mmercial/Multi—Family" and “Use Permit.” (AR000004.) The City had n0 other application form cover sheet specific t0 streamlined SB 35 application. In Developer’s application, it stated that it sought and qualified for streamlined review 0f its proposed development under SB 35. (AR000006—AR000017.) Developer’s application included project summary, discussion 0f and chart detailing the proposed development’s compliance with obj ective standards, renderings, blueprints, proposed landscaping, preliminary plan t0 manage construction, and title report. (AR000006flAR000 126.)
2. The City’s Initial Response
011 December 7, 201 8, the Cityu—acting through Community Development Director Joe Biggsw—sent Developer correspondence in which it expressed its refusal t0 conduct either further streamlined 0r standard, discretionary review. (AR000127—AR000149.) The correspondence reflects that the City appeared t0 treat Developer’s single development application as two distinct “applications submitted 0n November 8, 201 8”—0ne for streamlined review under SB 35 and one for standard, discretionary review—whjch perceived dual applications pulportedly could not be concurrently processed. {AR000129, AR000127.) 111 this
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28 regard, the City said, “this application results in two applications that have been submitted for this site. One 0r the other 0f the projects must be Withdrawn.” (AR000127.) As for the City’s direct response t0 the application for streamlined revieW—a letter that contained within its subject line the reference “SB 35 Determination” and which letter specifically referenced SB 35—the City stated that it had conducted review, made decision, and determined that the proposed development did not qualify for streamlined review under section 65913.4. The letter enumerated two reasons for the City’s denial decision. First, “the proj ect does not provide the percentage 0f affordable dwelling units required by the State regulations.” (AR000127.) The City cited section 65913.4, subdivisions (a)(4)(A) and (B)(ii) and document prepared by California’s Department 0f Housing and Community Development (HCD). (AR000127.) The HCD report lists Los Altos as municipality in which streamlining applications can be submitted for proposed developments with “Z 50% affordability” due t0 the failure t0 meet the [Regional Housing Needs Allocation 0r Assessment (RHNA), per 65580 et seq.] for 10w income households as compared t0 the “2 10% affordability” threshold for streamlining applicable t0 municipalities that missed their targets for both 10W and moderate income households. (AROOOI 27, citing HCD Determination Summary (Jan. 201 8) <h11pszl/Www.hcd.ca.gov/community—development/housingelement/docs/SB35_StatewideDeterminationSummaryO1 31201 8.pdf> [as 0f Mar. 2, 2020].) Second, the City cited section 65913.4, subdivision (a)(5)—the provision 0f SB 35 requiring consistency with obj ective zoning standards and objective design review Standardsl—and stated that the project lacked “the required number 0f off—Street residential and Visitor parking spaces” Under section 65913.4, subdivision (a)(S): ‘objective zoning standards’ and ‘objective design review standards’ mean standards that involve 110 personal or subj ectivejudgment by public official and are uniformly verifiable by reference t0 an external and unifonn benchmark 01 criterion available and knowable by both the development applicant 01‘ proponent and the public official before submittal. These standards may be embodied in alternative Objective land use specifications adopted by city 01‘ county, and may include, but are not limited t0, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances .”
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28 and “adequate access/egress t0 the proposed off-street parking.” (AR000127.) The City did not identify what these parking standards were 01‘ Where they could be located.
The letter concluded by saying, “If you elect t0 pursue other approval/permit avenues for the proj ect that is the subject 0f this notice, the applications, fees, deposits, studies, and information contained in the attached Notice 0f Incomplete Application are required t0 continue an evaluation 0f the proj ect.” (AROOOIZS, italics added.) The letter did not say that Developer’s submitted SB 35 application was perceived t0 be incomplete, 01‘ suggest that the City’s further review 0f Developer’s SB 35 application was conditioned 0n receipt of additional specified materials 0r information. Rather, the letter denied that application for the reasons stated.
As for the pulported discretionary application, the City declined t0 review it 0n the asserted basis that it was “incomplete.” (AR000128.) The City’s letter, titled “Notice 0f Incomplete Application” and Which omitted SB 35 in the subject line, listed 24 items that Developer needed t0 submit before the City would treat the application as complete and consider it 0n its merits. (AR000129—AR0001 32.) For example, the City asserted that Developer had not submitted complete documentation t0 substantiate its density~b0nus request. (AR000148.) The City indicated that the additional materials had t0 be provided within 180 dayswby June 6, 2019—0r the application would be deemed expired. (AR000129.)
3. Developer Responds
On January 10, 2019, Developer wrote t0 the City t0 point out perceived errors in the City’s correspondence rej ecting the application for streamlined review under SB 35. (AROOOI 50—AR000166.) Developer argued that the City’s stated reasons for its decision were facially inadequate and substantively incorrect. (AROOOIS .) Deyeloper stated that because the City had not “validly” identified conflict with applicable statutory objective standards and could n0 longer do so within the statutory SB 35 statutory timeframe, the project was deemed t0 comply and therefore qualified for streamlined review and permitting. (AROOOI .) 111 support, as for the City’s first stated basis for denial, Developer explained that the City had improperly relied 0n an outdated HCD determination 0f the municipalities subject t0 streamlining. (AROOOIS .) Developer pointed out that whils the City had relied 0n January
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2018 determination, HCD had updated its determination in June 20] 8. (AROOOIS .) The June 2018 determination said that the City’s threshold for streamlining is the more inclusive, 10 percent threshold. (AROOOIS 1, AR000161 .) On this basis, Developer asserted that the City had erroneously determined that it was only subj ect t0 the streamlining process for proj ects with 50 percent as compared t0 10 percent affordability. (AROOOI l—AROOOISZ.) Next, as for the City’s second stated reason for the denialwinsufficient parking spaces and “adequate access/egress t0 the proposed off-street parking”—Developer asserted that the City had failed t0 identify the obj active standards with which the project conflicted; relied in pan 0n subjective, discretionary standard; and was otherwise incorrect. (AROOOI 52—AR000154.) Developer elaborated that n0 standard addressing ingress and egress from the parking area was identified in the City’s decision and that the adequacy 0f ingress and egress was not an objective standard that could be evaluated in the course 0f streamlined review. (AROOOI 54.) Developer also pointed out that section 65913.4, subdivision (d)(2) prohibited the City from requiring more than one parking space per unit 0f housing. (AROOOl 53.) According t0 Developer, it had proposed more than adequate parking because it planned t6 develop 18 parking Spaces for only 15 units 0f housing and was not required t0 develop additional parking for the offices due t0 the City’s public parking district. (AROOOI 53~AR000154; AR000166 [architect statement 0n parking compliance, including ADA].)
Developer also asserted that the City had not made the requisite findings for having rejected the project under section 65589.5, the Housing Accountability Act. (AR000155.) Then, Developer remarked that, based 0n the City’s own representations in the incomplete notice, that notice was immaterial t0 the application for streamlined review and the points it contained solely concerned issues that might be addressed in standard, discretionary review process. (AR000156wAR0001 57.) Developer concluded by asserting its expectation that any streamlined public oversight must be completed by February 6, 2019, in accordance with the section 65589.5 90-day deadline.
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28 4. The City Srands [Is Ground
On February 6, 2019, the City responded t0 Developer’s letter. (AR000168—AR000172.) Th6 City asserted that it had correctly determined that the project was inconsistent With the streamlining criteria while simultaneously asserting that the application for streamlined review did not have sufficient information t0 allow the City to fully evaluate the criteria in section 65913.4. (AR000168.) The City then stated that it “finds and determines that the Project is not eligiblefor issuance ofa Streamlined ministerialpermit.” (AR000169.) The City agreed t0 consider any request that would “enable determination offlze Project ’s SB 35 eligibility 0r otherwise process the Application ifand when” additional information was provided. (AROUOl 69.)
Next, the City responded t0 some 0f the specific points raised by Developer. (AR000169.) The City conceded the error in its earlier, first-stated reason for having denied the streamlining application; it acknowledged that under the correct and Operative determination from HCD, the affordability threshold for streamlining was 10 percent, not 50 percent. (AROOOI 69.) As for the City’s earlier second—Stated reason for having rejected the streamlining application, the City turned t0 the notice 0f incomplete application instead 0f the denial letter. (AR000169.) The City concluded that notes 18 and 19 in that notice 0f incomplete application were sufficient t0 apprise Developer 0f the problem with its proposal and the inability 0f the City t0 evaluate the proposed parking? (AR000169~AR000170.)
Finally, the City said that because the streamlining application was incomplete, the City was not required t0 comply with the Housing Accountability Act and also had properly rejected the application based 0n its inability t0 evaluate the project’s eligibility for density bonus. (AR000170.)
Notes 18 and 19 d0 not identify any objective standard 01‘ clear inconsistency with such standard in any event. (AR00013 .) Note 18 states that two parking spaces will be affected by the driveway. '(AR00013 .) Note 19 states that parking circulation is “inadequate” and questions where cars would wait to enter the underground parking garage. (AR00013 ._)
ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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5. Developer States Intent t0 Pursue Legal Action
On February 19, 2019, Developer countered the City’s response in letter documenting the problems with and inconsistencies between the City’s initial action 0n December 7, 201 8, and how it had attempted t0 recharacterize that action in the February 6th letter. (AR000172~ AROOOI 82.) Developer recounted the history 0f its attempts t0 develop the proj ect through the discretionary review process since 2013 and the purpose 0f section 65913.4, emphasizing the ways in which the statute was designed t0 remedy precisely the type 0f agency conduct at issue here. (AROOOI 75—AR000176.) Developer also addressed the specific legal issues raised in the parties’ preceding correspondence. (AROOO 77—AR0001 .)
In concluding, Developer observed that the City appeared t0 be unwilling to follow the law 01‘ work with Developer 0n approving the SB 35 proposal, leaving it with 110 option other Vthan legal action. (AR000181 .) Developer said that it did not appear there was any available administrative remedy, such as an appeal, t0 be exhausted before commencing suit. (AR000181 .) Nevertheless, Developer indicated that it had submitted claim3 t0 the City Clerk under the Government Claims Act (§ 900 et seq.) out 0f an abundance 0f caution and invited the City t0 advise if it concluded that some applicable administrative procedure, in fact, existed that Developer Should pursue before initiating legal action. (AROOOI .) Developer offered that it remained open t0 discussing alternatives t0 litigation but otherwise intended t0 file suit within 90 days Ofthe City’s February 6th letter. (AROOOl .)
6. Developer Administratively Appeals
On February 21, 2019, the City informed Developer by email and through written delivery Ofthe same that its SB 35 denial was subject t0 an administrative appeal. (AR001203— AR001206.) The City insisted an administrative appeal was required despite acknowledging that Los Altos Municipal Code section 1.12.020, entitled “N0 appeal from ministerial acts,” provides that appeal procedures d0 not apply when an act or decision is ministerial. The City informed Develo er that if it wished t0 “challen the Cit ’s decision 0n this matter, an peal must be Developer’s claim appears in the record at AR001201—AR001202.
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filed by no later than fifteen calendar (l 5) days from the date 0f the [February-6] letter, by th_e close 0f business 4:30 pm 0n THURSDAY FEBRUARY 21, 201 9.” (AR001205.) The City provided Developer with the mandatory application form for the appeal and stated that “[flailure t0 timely appeal will preclude you, 01‘ any interested party, from challenging the City’s decision in coun.” (AR001205—AR001207.)
In other words, the City gave Developer less than eight hours’ notice 0f its interpretation 0f the Los Altos Municipal Code and position that an administrative appeal was required.
That same day, Developer submitted its appeal form along with statement 0f the grounds for its appeal and the record 0n which it was relying (including the correspondence summarized above).4 (AR001208—AR001210.) In the weeks that followed, Developer frequently corresponded with the City in an effort t0 ascertain what the process for the appeal would be and when it would be heard. (AR0013 1—AR001328.)
On March 26, 201 9, the City noticed the appeal for public hearing before the City Council t0 be held 011 April 9, 2019.5 (AR001216.) In correspondence from counsel for the City to Developer the week before the hearing, it was asserted that the appeal was required because the decision that the project was not eligible for streamlined review was not ministerial act. (ARGO 306.) Counsel went 0n t0 assem that April 9th was the earliest available time that the In Developer’s cover letter for its appeal, it maintained that it did not believe there was an avenue for appeal 0f ministerial decision but was submitting the appeal t0 avoid any dispute. (AR00121 0.)
The City noticed this appeal for public hearing based 0n staff repofi and recommendation from counsel. (AR001238—AR001252 [staff report]; AR001253—AR001257 [presentation from Best Best Krieger LLP].) The staff report delves into new substantive issues 011 the SB 35 proposal, such as whether the project satisfies the two-thirds residential-use requirement, that were not raised in the City’s December 7, 20] denial letter. (AR001242; see also AR001260 [summarizing staff” reasons for denial that are purportedly the subj ect 0f the appeal].) This seems t0 be because the City was advised that in determining the appeal, it would conduct de novo review 0f whether the project in fact complied with section 65913.4, instead 0f ascertaining whether the initial denial had bean insufficient 0r invalid such that the application was deemed approved under SB 35. (AR001255.) Developer responded t0 thesa new points in correspondence sent in connection with the appeal. (AR001284—AR00 300.)
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appeal could be heard based 0n the City Council’s schedule and existing obligations. (AROOI 308.) Counsel also maintained without explanation that the appeal was subj ect t0 public hearing, but that Developer would be allowed t0 present its case as well. (AR001309.) On April 9th, Developer presented its appeal t0 the City Council, which also heard public commenté 011 the matter (including comments from Renters to the effect that the project was deemed approved for streamlined permitting). (AR00123 1—AR001237; AROOI 928—AR002047 [hearing transcript].) On April 23, 201 9, the City, acting through its City Council, denied the appeal and did so by resolution. (AR002056—AR002078 [City Council minutes, report, and resolution] .)
B. Summary ofAZiegations and Proceedings
Renters and Developer (collectively, petitioners) commenced their respective actions 0n June 12 and 13, 2019. Their hybrid petitions for writ 0f mandate and complaints for declaratory relief essentially raise the same claims. They allege that in proceeding as described above in the summary 0f the administrative record, the City unlawfully denied Developer’s proposal in Violation 0f the streamlining statute (SB 35), the Housing Accountability Act (§ 65589.5), and the Density Bonus Law (§ 6591 5). Based 0n these allegations, petitioners seek writs 0f mandate under either Code of Civil Procedure section 1085 0r section 1094.5, compelling the City t0 approve Developer’s streamlined application. They also seek judicial declaration 0f their entitlement to that approval under Code OfCiVil Procedure section 1060, along with injunctive relie'f.7 The City separately answered both petitions.
On August 28, 2019, the Court consolidated the petitions for all purposes, and designated Developer’s action as the lead case. The City then lodged the administrative record with the Court. And, 0n October 21, 2019, the City lodged supplement. Petitioners filed joint opening brief, accompanied by request for judicial notice, 0n November I, 201 9. The City opposed the Public comments can be located in the record along with other hearing materials. (AR001333~AR001351, AR001907—AR001922, AR001924—AR001926.) Although Renters and Developer organized the causes 0f action in their petitions differently, they seek the same types 0f relief 0n the same factual and legal bases.
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28 petition 011 December 6, 201 9, and presented the declaration 0f Jon Biggs, the City’s Director 0f Community Development. Petitioners then filed joint reply and request for judicial notice before the hearing scheduled for January 15, 2020. The hearing went forward as scheduled.
Upon receipt 0f post-hearing supplemental briefing ordered by the Court, the matter was submitted.
H. Petitioners Requests for Judicial Notice
PetitiOners jointly request judicial notice 0f portions 0f the Los Altos Municipal Code (RJN Ex. K) as well as legislative history materials, namely digests, reports, floor analyses, and amendmentsrto section 65913.4 (RJN Exs. A—J). With their reply, they seek judicial notice of correspondednce from HCD in response t0 their request for assistance. (See Golub Decl., Ex. 1.) For the reasons that follow, petitioners’ requests are granted. court may take judicial notice 0f municipal law. (Evid. Code, 452, subd. (b); The Kennedy Com. v. City QfHLtnIingron Beach (2017) 16 Cal.App.5th 841, 852 (Kennedy).) Thus, the Court takes judicial notice 0f the Los Altos Municipal Code.
Next, court may consider legislative history materials as an interpretative aid, but the means 0f consideration and weight ascribed t0 these kinds 0f materials vary. (Cf. People v. Cruz (1996) 13 Cal.4th 764, 773, fn. (Cruz) with Cummins, Inc. v. Super. Ct. (2005) 36 Cal.4th 478, 492, fn. 11.) As for the text 0f enacted legislation (Assembly Bill 101 and Assembly Bill 1485), including redline version showing section 65913.4 as amended and in force today, (RJN Exs. C, G—H), the Court takes judicial notice undcr Evidence Code section 452. While the California Supreme Court has relied 0n precedent 1'0 take judicial notice 0f other legislative history materials, such as committee reports and bill analyses, some dissenters have aptly observed that such materials d0 not clearly fall within any enumerated category 0f Evidence Code sections 451 and 452. (Cruz, supra, 13 Cal.4th at p. 794 (dis. 0pm. 0f Anderson, J.).) Accordingly, here, the legislative reports and analyses are not subject t0 judicial notice under the Evidence Code. Nevsfiheless, precedent allows the Court t0 consider these reports and analyses and t0 ascribe t0 them an appropriate weight in light 0f their authorship and function within the legislative process.
11 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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Finally, “[w]here the meaning and legal effect 0f statute is the issue, an agency’s interpretation is one among several tools available t0 the court.” (Yamaha Corp. ofAmerz'ca v.
Stare Bd. ququalizarion (1998) 19 Cal.4th 1, (Yamaha).) “An agency interpretation 0fthe meaning and legal effect 0f statute is entitled t0 consideration and respect by the courts; however, unlike quasi—legislative regulations adopted by an agency t0 which the Legislature has confided the power t0 ‘make law,’ and which, if authorized by the enabling legislation, bind this and other courts as firmly as statutes themselves, the binding power 0f an agency’s interpretation 0f statute or regulation is contextual: Its power t0 persuade is both circumstantial and dependent 0n the presence 0r absence 0f factors that support the merit 0f the interpretation.” (12ml) formal opinion letter 01‘ informal correspondence expressing the position 0f the agency may be presented to court for consideration under Yamaha by way 0f request for judicial notice under Evidence Code section 452, subdivision (c). (See generally Field v. Bowen (201 1) 199 Cal.App.4th 346, 370, fn. [agency-prepared documents come within Evid. Code, 452, subd. (c); see, e.g., Linda Vista Village San Diego HO,A., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 186.) Consequently, the Court takes judicial notice 0f HCD’S letter t0 petitioners.
[I], Discussion
The Court must answer two central questions t0 resolve the petitions. First, did petitioners timely commence their respective actions? Second, d0 petitioners establish that they are entitled t0 reliefon the merits? The answer t0 both questions is yes.8 AS noted, both petitions are brought under Code of Civil Procedure sections 1085, traditional mandate, and 1094.5, administrative mandate, without specification ofwhich form 0f mandate may apply t0 all 0r each 0f the discrete causes 0f action. Likewise, the City takes no position 0n this question. Each 0f these statutes, by its terms and as discussed in case law, typically applies in different, specified circumstances 0r settings. And each typically invokes judicial review through its own nuanced lens 01' standard. AS SB 35 involves an agency’s ministerial duty t0 approve qualifying development proposal and n0 administrative 0r public hearing is contemplated, judicial review 0f an agency’s decision to rej ect project for streamlined review and permitting under SB 35 is more likely in traditional mandate under Code of Civil Procedure section 1085. But here, ths City insisted that an administrative appeal t0 the City Council heard through the vehicle 0f public hearing was required, Which typically leads t0 judicial review in administrative mandate under Code ofCiVil Procedure section 1094.5. And the 12 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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A. The Action Is Nor Time—Barred
The City’s primary opposing argument is that petitioners failed t0 timely file and serve their respective petitions within the 90-day limitations period set forth in section 65009. In advancing this argument, the City asserts that it is not estopped from raising this defense based 0n its insistence that Developer exhaust its administrative remedies by appealing t0 the City Council (0r, implicitly, that Renters so exhaust by their participation in this same administrative process) before bringing this action. Petitioners argue both assertions are incorrect. And, in supplemental briefing, petitioners contend and the City disputes whether the statute-of~ limitations defense is further overcome by the doctrine 0f equitable tolling. For the following reasons, the Coufi rejects the City’s defense.
As threshold matter, the City argues that the Court should assess the “gravamen” 0f the claims and subject all 0f them t0 the 90-day limitations period in section 65009, subdivision (c)(1)(E). Petitioners take issue with this approach. (RT at p. 25.) And the Court perceives the City’s treatment 0f all the claims collectively based 0n their assessed “gravamen” t0 be imprecise and problematic.
“[A] plaintiff is generally pennitted t0 allege different causes 0f action—with different statutes 0f limitations-up0n the same underlying facts.” (Thomson v. Canyon (201 1) Housing Accountability Act, which development proposal submitted under SB 35 may invoke, specifically references judicial review in administrative mandate under Code 0f Civil Procedure section 1094.5. (§ 65589.5, subd. (111).) Further, courts haVe reviewed challenge t0 an agency’s decision under the Density Bonus Law likewise through administrative mandate. (See, e.g. 65915, subd. (d)(3); Friends ofLagoon Valley v. City 0f Vacaville (2007) 154 Cal.App.4th 807, 12, 816—817 (Lagoon Valley).) The parties appear t0 proceed here 0n the assumption that because the overarching relief in mandate sought by petitioners is deemed approval 0f the development proposal under SB 35, relief under the HousingAccountability Act and the Density Bonus Law is subsumed within that. In any event, both forms 0f mandate ultimately review for 21nd address an agency’s abuse 0f discretion, which would include failure t0 perform duty compelled by law 0r failure t0 proceed in manner required by law—the fundamental essence 0f all the claims here. Because of this, and because the particular form 0f mandate that is applicable is not articulated or disputed by the parties, the Court proceeds t0 conduct itsjudicial review and t0 adj udicate the action focused on abuse 0f discretion as SO framed and without specifically deciding whether the ultimate relief afforded comes through Code 0f Civil Procedure ssction 1085 0r section 1094.5. 13 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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198 Cal.App.4th 594, 605 (Thomson).) “A complaint may allege facts involving several distinct types 0f harm governed by different statutory periods and, where it does SO, one cause 0f action may survive even if another cause 0f action with shorter limitations period is barred.” (Ibid) But in doing so, “a plaintiff is not permitted t0 evade statute 0f limitations by artful pleading that labels cause 0f action one thing while actually stating another.” (Id. at p. 606.) “California courts therefore 100k to the gravamen 0f the cause 0f action.” (Ibid) ‘[T]he nature 0f the right sued upon and not the form 0f action nor the relief demanded determines the applicability 0f the statute 0f limitations under our code.’ [Citati0n.]” (Hensler v. City ofGlendale (1994) Cal.4th 1, 22—23.)
Here, as is permissible, petitioners allege that one set 0f facts gives rise t0 multiple claims for relief based 0n different statutes. And, in pleading these distinct theories, petitioners d0 not attempt t0 artfully mislabel their claims t0 evade the statute 0f limitations. They assert that they are independently entitled t0 relief 0n all 0f the pleaded bases. Consequently, contrary t0 how the City proceeds, this is not scenario in which it is necessary t0 drill down t0 the gravamen 0f each claim t0 uncover its true nature. And the City’s suggestion that the gravamen ofeach independent claim is relief under section 65913.4 is not quite accurate. It follows that the City errs in addressing all 0f the claims collectively as though they are necessarily subject t0 one statute 0f limitatibns in licu 0f establishing the limitations period applicable t0 each claim pleaded.9
T0 illustrate, the Housing Accountability Act contains its own 90-day statute 0f limitations. (§ 65889.5, subd. (ml) This limitations period runs “from the later 0f (1) the effective date 0f decision 0f the local agency imposing conditions 0n, disapproving, 0r any other final action 0n housing development project 0r (2) the expiration 0f the time pariods To be clear, the City does not argue that each distinct claim incidentally happens t0 be subject t0 the same statute 0f limitations. Rather, the City asks the Court t0 treat the different claims as identical and, 0n that basis, t0 apply 0116 statute 0f limitations t0 all claims. 14 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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specified in subparagraph (B) ofparagraph (5) 0f subdivision (11).”10 (§ 65589.5, subd. (m), citing 65950 [Permit Streamlining Act].) This particular statute of limitations applies t0 causes 0f action based 0n the Housing Accountability Act.
Next, the Legislature enacted section 65009 because it found “there currently is housing crisis in California and it is essential t0 reduce delays and restraints upon expeditiously completing housing projects.” (§ 65009, subd. (a)(l).) The statute “is intended ‘to provide certainty for property owners and local governments regarding decisions made pursuant t0 this division” (§ 65009, subd. (a)(3)) and thus t0 alleviate the ‘chilling effect 011 the confidence with which property owners and local governments can proceed with projects’ (id, subd. (50(2)) created by potential legal challenges t0 local planning and zoning decisions.” (Travis v. County QfSanta Cruz (2004) 33 Ca1.4th 757, 765.) “T0 this end, section 65009 establishes short statute 0f limitations, 9O days, applicable t0 actions challenging several types 0f local planning and zoning decisions .” (Ibid)
The City relies 0n the 90-day limitations period in section 65009 based 0n language in subdivision (c)(])(E), Which provides that it applies when petitioner seeks “[t]0 attack, review, set aside, void, 01‘ annul any decision 011 the matters listed in Sections 65901 [a l] and 65903[12], 0r t0 determine the reasonableness, legality, 0r validity 0f any condition attached t0 variance, conditional use permit, or any other petmit.” Based 011 the contents 0f sections 65901 and 65903—section 65009, subdivision (c)(1)(E) is best summarized as applying when petitioner 10 Section 65889.5, as effective January 1, 2020, contains an outdated reference t0 subparagraph (B) 0f former paragraph (5) 0f subdivision (h) that cites t0 time standards in section 65950 (the Permit Streamlining Act). Subparagraph (B) and the time standards thsrein are now codified in paragraph (6) 0f subdivision (h), not paragraph (5), but the Legislature failed t0 conform the reference in subdivision (m) upon making this amendment t0 subdivision (h), which is clearly the result 0f oversight.
'1
Section 65901 governs hearings 0n “conditional uses 01‘ other permits” as well as zoning variances.
12 Section 65903 governs appeals 0f decision 0f the board 0f zoning adjustment 0r zoning administrator.
15 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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challenges (1) the underlying decision 0f the board 0f zoning adjustment 01‘ zoning administrator 0n conditional use permit, other permit, 01‘ zoning variance; (2) the outcome 0f an appeal 0f such decision; 01' (3) the particular terms 0f conditional use permit, other permit, 01' variance (as compared t0 the ultimate decision t0 issue 0r refuse t0 issue the permit 01‘ variance). (See generally Save Lafayette Trees v. City ofLafayelTe (2019) 32 Ca1.App.5th 148, 155—159 [discussing scope and construction 0f section 65009].)
Petitioners argue that, if anything, the 180—day period in subdivision (d)(1) 0f section 65009 applies because this action meets both 0f the criteria specified therein, namely:
“(A) It is brought in suppon 0f 01‘ t0 encourage 0r facilitate the development 0f housing that would increase the community’s supply of housing affordable t0 persons and families With 10W 01' moderate inComes, as defined in Section 50079.5 0f the Health and Safety Code, 0r With very 10w incomes, as defined in Section 50105 0f the Health and Safety Code, 0r middle-income
households, as defined in Section 65008 0fthis code. This subdivision is not intended t0 require that the action 0r proceeding be brought in support 0f 0r t0 encourage 01‘ facilitate specific housing development project.
“(B) It is brought with respect t0 the adoption 01’ revision of housing element pursuant t0 Article 10.6 (commencing with Section 65580) 0f Chapter 3, actions taken pursuant t0 Section 65863.6, 0r Chapter 4.2 (commencing with Section 65913), 01' t0 challenge the adequacy 0f [a density bonus] ordinance adopted pursuant t0 Section 65915.
Petitioners” interpretation 0f section 65009, subdivision (d)(1) is not entirely persuasive.
While the project does seem to encourage housing development within the meaning of section 65009, subdivision (d)(I)(A), it is not especially clear that this proceeding is brought with respect t0 “actions taken pursuant t0 Section 65863.6, 0r Chapter 4.2 (commencing With Section 65913)” within the meaning 0f section 65009, subdivision (d)(1)(B). This is because this latter subdivision focuses 011 challenges t0 legislative actions as compared t0 ministerial 01' adjudicatory permitting decisions. The legislative actions enumerated i11 section 65009, subdivision (d)(1)(B) include the adoption 0r revision 0f housing element, adoption 0f zoning ordinance, and the adoption 0f density bonus ordinance. (See Calvert v. Cozmly 0f Yuba (2006) 16 ORDER GRANTING PETITIONS FOR WRIT OF MANDATB
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145 Cal.App.4th 613, 623.) The only other action identified in that subdivision is an action taken under Chapter 4.2 (commencing with section 65913). Petitioners assume that this reference necessarily encompasses section 65913.4, SB 35, because it is part 0f Chapter 4.2. But this interpretation does not necessarily appear t0 be correct under the principle 0f noscitur socz'z's that directs intelpretation 0f term in list by reference to the other items in that list. (See Kaatz v. Cily ofSeaside (2006) 143 Cal.App.4th 13, 40.) Under that principle 0f interpretation, court interprets term more nan‘owly if an expansive intelpretation would make the term markedly dissimilar from the other list items 0r make the other list items unnecessary 0r redundant. (Ibid) Here, interpreting “actions taken pursuant t0 Chapter 4.2 (commencing with Section 65913)” as encompassing the decision t0 ministerially approve particular proj ect under section 65913.4 would create marked dissimilarity between that term and the other legislative actions enumerated in section 65009, subdivision (d)(1)(B). Additionally, section 659] 3.4 is not the only section within Chapter 4.2. Section 65913.1 requires that when zoning land 0r revising housing element city designate sufficient land for residential use. And so, an action taken under section 6591 3.1 falls within Chapter 4.2 and constitutes legislative action like the other actions enumerated in section 65009, subdivision (d)(1)(B). Similarly, section 6591 3.2, also in Chapter
4.2, imposes limitations 011 the types 0f legislative actions city may take when it comes to regulating subdivisions. Thus, it seems the Legislature intended section 65009, subdivision (d)(1)(B) t0 encompass legislative actions taken under Chapter 4.2, but not necessarily ministerial 0r adjudicatory decisions. Consequently, petitioners” intelpretation 0f section 65009, subdivision (d)(1)(B) as encompassing streamlined approvals 01' denials of proj ects under section 65913.4 is not convincing.
The City’s interpretation 0f section 65009, subdivision (c)(1)(E) is slightly more appealing. While it is true that proj ects subj cot t0 streamlined review d0 not require conditional use permits, section 65009, subdivision (0)(1)(E), including as incorporated in section 65009, subdivision (c)(])(F), encompasses decision 0n “any other permit.” And so, arguably, even when proj ect is subj ect t0 streamlined, nondiscretionary review, there is still decision as t0 whether to permit—meaning t0 allowithe development, which decision may be signified by the I7
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issuance of document 0r series 0f documents denominated as “permit.” And decision made under section 65913.4 might otherwise qualify within the meaning 0f section 65009, subdivision (c)(1)(F) as decision made before the issuance 0f any other permit.
Petitioners d0 not convince the Court that Urban Habitat Program v. City ofPZeasanton (2008) 164 Cal.App.4th 156] (Urban Habitat) precludes the application 0f section 65009 here.
First, the facts 0f that case are distinct because the petitioners there claimed that the City 0f Pleasanton had failed t0 update the housing element 0f its general plan and local development law t0 meet its RHNA such that an impermissible inconsistency arose over time; in other words, the city had failed t0 adapt t0 updated needs and requirements for adequate housing. (Urban Habitat, at pp. 1566—1 570, 1577.) The issue here is not whether the City failed t0 bring local law and planning documents into compliance, but rather, Whether it took an affirmative action 0n specific proj ect that was unlawful. While petitioners characterize this as failure t0 comply with mandatory duties, this is not the same type 0f failure 0r omission that occurred in Urban Habitat.
Because that case is circumstantially distinguishable from the case 110w before this Court, and given the broad interpretation afforded t0 section 65009 by other coufis, petitioners’ analogy is not compelling.
Ultimately, even assuming all 0f petitioners’ claims are subj ect t0 90—day statute 0f limitations under either section 65009 0r, as t0 the Housing Accountability Act claims, section 65889.5, subdivision (m), they commsnced their respective actions with 90 days 0f the City’s decision 0n the administrative appeal, which process the City insisted, full stop, was required for exhaustion puxposes. The City, through its City Council, made that “final” decision 011 April 23, 201 9. (AR002313.) Petitioners filed their petitions in June and served them by July 10th, within 90 days of the April 23rd adopted resolution. Accordingly, each petition in this consolidated action is timely.
The Court accordingly rejects the City’s contention that its initial rejection 0f the streamlining application 0n December 7, 2018, necessarily accrued cause 0f action under SB 35 01‘ triggered the running 0f the statute 0f limitations as t0 any 0r all claims asserted. Contrary 18 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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28 t0 what it anticipatorily argues in its opposition, the Court finds that the facts here warrant estoppel Ofthis defense. Equitable tolling applies as well.
Equitable tolling and equitable estoppel are two distinct doctrines. (Ashou v. Liberty Mutual Fire Ins. C0. (2006) 138 Cal.App.4th 748, 757—758.) “Generally speaking, four elements must be present in order t0 apply the doctrine 0f equitable estoppel: (1) the party t0 be estopped must be apprised 0f the facts; (2) he must intend that his conduct shall be [sic] acted upon, 01' must 30 act that the party asserting the estoppel had right t0 believe it was so intended; (3) the other party must be ignorant 0f the true state 0f facts; and (4) he must rely upon the conduct t0 his injmy.’ [Citati0ns.]” (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359, quoting Driscoll v. City ofLosAngeles (1967) 67 Cal.2d 297, 305.) And ‘[t]he government may be bound by an equitable estoppel in the same manner as private party when the elements requisite t0 such an estoppel against private party are present and, in the considered View 0f court 0f equity, the injustice [that] would result from failure t0 uphold an estoppel is of sufficient dimension t0 justify any effect upon public interest 0r policy [that] would result from the raising 0f an estoppel.’ [Citati0n.]” (Feduniak, supra, 148 Cal.App.4th at pp. 1359—1360.) “[C]0u1“ts will not hesitate t0 estop the government from asserting procedural barrier, such as the statute 0f limitations 0r failure t0 exhaust remedies; as defense t0 claims against it, where the government’s affirmative conduct caused the claimant’s failure t0 comply with the procedural requirement.” (Id. at p. 1372.) While estoppel typically arises from misrepresentations 0f fact, it may also apply when municipality 0r agency does not accurately advise potential plaintiff about the existence or availability 0f an administrative remedy, which advice may depend in part 0n mixed questions 0f fact and law. (See, e.g., Shuer v. County ofScm Diego (2004) 117 Cal.App.4th 476, 487 (Shuer).) For example, when the availability 0f an administrative remedy is unclear and the administrative regulations are susceptible t0 different interpretations, public entity may be estopped from raising the failure t0 exhaust administrative remedies as dsfense. (Ibid) “The equitable tolling of statutes 0f limitations is judicially created, nonstatutory doctrine. [Citati0ns.]” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 19 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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December 7, 2018. (AR001205.) But the City emphatically said t0 Developer that “an appeal 88, 99 (McDonald).) “It is ‘designed t0 prevent unjust and technical forfeitures 0f the right t0 trial 0n the merits when the purpose 0f the statute 0f limitations—timely notice t0 the defendant of the plaintiff’s claimS—has been satisfied.’ [Citation.]” (Ibid, quoting Appalachian Ins. C0. v‘ McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 38.)
“Where exhaustion 0f an administrative remedy is mandatory prior t0 filing suit, equitable tolling is automatic: ‘It has long been settled in this and other jurisdictions that whenever the exhaustion 01° administrative remedies is prerequisite t0 the initiation of civil action, the running 0f the limitations period is tolled during the time consumed by the administrative proceeding.’ [Citati0ns.]” (McDonald, supra, 45 Ca].4th at p. 101, quoting Elkins v. Derby (1 974) 12 Cal.3d 410, 414.) “This rule prevents administrative exhaustion requirements from rendering illusory nonadministrative remedies contingent 0n exhaustion.” (McDonald, supra, 45 Ca1.4th at p. 101 .) In other words, the doctrine 0f equitable tolling preserves party’s right t0 judicial review that would otherwise be rendered infeasible due t0 the consumption 0f the limitations period by the administrative review process.
The facts here support the application 0f both equitable tolling and equitable estoppel.
The City mandated an administrative proceeding that consumed the limitations period that it now contends was triggered by the initial denial letter 0n the streamlined application 011 nLlst be filed” and that “[flailure t0 timely appcal Will preclude you, 01‘ any interested party, from challenging the City’s decision in court.” (AR001205.) The City then insisted 0n scheduling public hearing 011 the administrative appeal before the City Council and delayed in doing SO. (AROOI 8~AR001 324.) For mandamus claims brought under Code 0f Civil Procedure section 1094.5—and for any other claims in light 0f the emphatic language 0f the letter—the administrative proceeding was mandatory. This is because “writ is not available t0 intermeddle in the preliminary stages 0f an administrative planning process .” (California High—Speed Rail Authority v. Super. Ct. (2014) 228 Cal.App.4th 676, 707; see also CalifiJrnia Water Impact Nemark v. Newhall County Water District (2008) 161 Cal.App.4th 1464, 1482— 1483 [only final decisions subject t0 review].) And, as petitioners point out, even if they contend 20 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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that the City’s December 7, 201 correspondence resulted in their SB 35 application being deemed approved under streamlined review, With the City then insisting instead 0n an administrative appeal, petitioners could pursue that appeal with the goal that the City Council would not proceed t0 decide de novo whether the SB 35 application in fact qualified for streamlined review but, rather, t0 recognize and decide that “damned” approval 0f ths SB 35 application under section 65913.4, subdivision (b)(2) for obj ective planning standards had already occurred as matter 0f law obviating the need for litigation.
And even treating the administrative proceeding as voluntary, tolling still applies. (McDonald, supra, 45 Cal.4th at p. 105.) The Court rej ects the City’s rather incredible and unsubstantiated claim that Developer’s acquiescence under protest means that it did not voluntarily pursue the administrative proceeding. The City fails t0 justify (through reasoned analysis 0r authority) the insenion 0f scienter requirement into the definition 0f voluntary in this particular legal and procedural context. Accordingly, whether Viewed as mandatory or voluntary in character, the administrative proceeding that occurred here is the type 0f intervening activity that tolls the limitations period.
Also, petitioners provided sufficient notice 0f their claims thereby fulfilling the purpose 0f the statute 0f limitations before and during the administrative proceeding. The City asserts without authority that Renters’ submission 0f public comments was insufficient t0 put it 011 notice 0f their claims. (See AR001334—AR001338; AR002344—AR002345.) Given the specificity and content ofRenters’ communications with the City, the Court is not convinced by the City’s conclusory and unsubstantiated assefiion. And, as practical matter, it is unclear how Renters could have proceeded without waiting for the disposition 0f Developer’s administrative appeal. Especially given the City’s insistence 0n that appeal, it would result in an unjust and technical forfeiture t0 allow the City t0 110w disclaim the necessity 0f this administrative proceeding. Because 0f the brevity 0f the 90-day limitations period, the absence of‘tolling during the administrative proceeding would render judicial review illusory. Equitable tolling is just and warranted under the facts and circumstances presented here. The City’s supplemental brief does not persuade the Coufi t0 reach contrary conclusion.
21 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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28 Next, the City anticipatorily argues in opposition to the petitions that it is not equitably estopped from raising the statute 0f limitations as defense because estoppel applies when pafiy misrepresents 01‘ conceals facts and not matters 0f law. (Opp. at p. 19:6—1 7, citing Jordan v. City ofSacmmento (2007) 148 Cal.App.4th 1487 (J0rdan).) While the City’s statement 0f law is not inaccurate 0n its face, it is incomplete and misleading. And the City’s analysis is underdeveloped. Moreover, the City relies exclusively 011 Jordan, which is not analogous.
Here, the City vehemently asserted by letter that an administrative appeal was mandatory and that it would raise the defense 0f exhaustion 0f administrative remedies t0 preclude Developer from seeking judicial review 0f the City’s conduct absent an appeal. The City’s representation as t0 the position it was taking, and would take in any litigation, is representation 0f fact. And, although Developer stated its opinion 01' belief that the City’s legal analysis was incorrect, Developer was at the mercy 0f the City’s interpretation 0f its own municipal code. In other words, the parties differed in their understanding of the law and in their authority t0 interpret and enforce that law. As in Shuer, this type 0f informational and interpretive asymmetry is sufficient t0 justify estoppel; As for the second and fourth elements 0f estoppel—that the party t0 be estopped intended that his conduct be acted upon, or that this party so acted such that the other party had right t0 believe the conduct was s0 intended, and that the other party relied 0n the conduct t0 his injury~ the City’s letter informing Developer 0f the requirement 0f an administrative appeal contained such emphatic and mandatory language that it is reasonable t0 conclude the City intended t0 induce Developer’s reliance thereon. And Developer acquiesced t0 the City’s representation t0 its detriment, pursuing an administrative appeal albeit under protest. When faced with the untenable choice 0f either suing immediately and facing dismissal for failure to exhaust, 0r exhausting administrative remedies t0 preserve its claim 0f unlawful conduct, it was reasonable for Developer t0 rely 0n the City’s interpretation 0f its own code and representation Ofthe exhaustion defense it intended t0 raise, particularly given the unequivocal and emphatic language the City used t0 express this position. Further, under these circumstances, before having t0 initiate litigation, Developer could reasonably SO acquiesce t0 the City’s demand in an effort t0 22 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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get the City Council t0 recognize the mandatory timelines and requirements 0f SB 35 and the consequences 0f its having earlier failed t0 meet those provisions, and t0 correct its prior en'oneous approach.
Finally, the Court concludes that the inj ustice that would result in the absence 0f estoppel is enough t0 justify application 0f the doctrine here.
For all 0f these reasons, the Court rejects the City’s statute-of—limitations defense and reaches the merits 0f petitioners’ claims.
B. Petitioners Are Entitled t0 Reliefon the Merits
Petitioners allege that the City’s conduct violated three different housing statutes:
(1) the streamlining statute (§ 65913.4, SB 35); (2) the Density Bonus Law (§ 6591 5); and (3) the Housing Accountability Act (§ 65589.5).
1. The City Failed t0 Comply wifh Section 65913.4
i. Statutory Background
In 2017, the Legislature passed SB 35 t0 reform land-use and housing law, including by creating “a streamlined, ministerial approval process for infill developments in localities that have failed to meet their regional housing needs assessment numbers?” (Sen. Rules C0111, Rep. 0n Sen. Bill N0. 35 (2017—2018 Reg. Sass.) May 27, 2017.) Section 65913.4, subdivision (a) states in relevant part: “A development proponent may submit an application for development that is subject t0 the streamlined, ministerial approval process provided by subdivision (b) and not subj ect t0 conditional use permit if the development satisfies all 0f the obj ective planning standards” set forth further in subdivision (a).
13 As part 0f the housing element 0f municipality’s general plan, it must calculate its Regional Housing Needs Allocation 0r Assessment (RHNA), which is the ‘existing and proj ected need for housing’ in the area for individuals and households 0f all income levels. (Fomeca v. City osz'Zray (2007) 148 Ca1.App.4th 1174, 1186, fn. 8, quoting Gov. Code, 65583.) If municipality’s present and proj acted housing needs exceed its housing stock and land available for development, it must work t0 satisfy its RHNA by increasing the availability 0f land for housing development by, for example, changing zoning and development restrictions. (Gov. Code, 65583, subd. (c)(1)(A).)
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The objective planning standards that operate as eligibility criteria for streamlined, ministerial review consist 0f inclusionary and exclusionary criteria. 111 the abstract, the inclusionary and exclusionary criteria balance the primary policy of expediting housing construction with the competing policy 0f safe, well—designed construction as embodied in existing law. T0 illustrate, proposed development must be “a multifamily housing development that contains two 0r more residential units” in an urban area that will not displace existing rentcontrolled and income-restricted housing. (§ 65913.4, subds. (a)(1)—(2), (a)(7).) mixed~use development still qualifies if “at least two—thirds 0f the square footage of the development [are] designated for residential use.” (§ 6591 3.4, subd. (a)(2)(C).) Exclusionary criteria disqualify development proposed for construction in 01* 0n coastal zone, fire zone, flood plain, earthquake fault zone, hazardous-waste site, wetland, 01‘ prime famnland. (§ 6591 3.4, subd. (a)(6).) Currently, the statute specifies that when evaluating consistency with the standards above, development is consistent “if there is substantial evidence that would allow reasonable person t0 conclude that the development is consistent with the obj active planning standards?” (§ 65913.4, subd. (b)(3).) Unless an agency timely explains t0 developer in writing the reasons why the proposed development is not consistent with the eligibility criteria, “the development Shall be deemed t0 satisfy the objective planning standards in subdivision (3).” (§ 65913.4, subds. (b)(1)—(2).) An agency’s deadline for notifying project proponent 0f ineligibility for streamlined, ministerial review is either 60 0r 90 days depending 011 the size 0f the proposed development. (§ 65913.4, subds. (b)(l)(A)—(B).)
Proposed developments that qualify for streamlined, ministerial review may still be subj ect t0 design review 01‘ public oversight with the limitation that this oversight “shall be objective and be strictly focused 0n assessing compliance with criteria required for streamlined proj ects, as well as any reasonable objective dasign standards published and adopted by ordinance 0r resolution by local jurisdiction before submission 0f development application, l4 Section 65913.4, subdivision (b)(3) became effective January 1, 2020. (Sen. Bill N0. 23S (2019—2020 Reg. Sess.) 5.3; Assem. Bill N0. 1485 (2019m2020 Reg. Sass.) 1.) 24 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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and shall be broadly applicable t0 development within the jurisdiction.” (§ 65913.4, subd. (c)(l),) The design review must be completed, if at all, within 90 0r 180 days” depending 0n the size 0f the development and “shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section or its effect .”'6 (§ 65913.4, subd. (c)(l).) ii. Application
The City’s notice 0f inconsistencyhere, its SB 35 denial letter 0f December 7, 2018, was neither code-compliant nor suppofied by substantial evidence.
Section 65913.4 subdivision (b)(l) provides: “If local government determines that development submitted pursuant t0 this section is in conflict with any 0fthe objective planning standards specified in subdivision (a), it Shall provide the development proponent written documentation 0f which standard 0r standards the development conflicts with, and an explanation for the reason 01‘ reasons the development conflicts with that standard 01' standards .” The Court concludes here that the City failed t0 comply with this notice requirement 15 This means that for smaller development, the deadline for notice of ineligibility is 60 days (§ 65913.4, subd. (b)(])(A)) and an agency may take an additional 30 days t0 complete design review 0r public oversight for total 0f 90 days (§ 6591 3.4, subd. (c)(1)). For larger development, the deadline for notice 0f ineligibility is 90 days (§ 65913.4, subd. (b)(1)(B)) and an agency may take an additional 90 days t0 complete design review 0r public oversight for total 0f 180 days (§ 65913.4, subd. (c)(2)).
16 Notably, while section 6591 3.4, subdivision (c) gives localities additional time to review objective design standards, the Legislature also enumerates compliance with “objective design review standards” as an objective planning standard~—an eligibility criterion—in subdivision (a)(S). There does not appear t0 be substantive distinction between these two terms.
The descriptions in subdivisions (a)(5) and (c) of what design standards may be applied are so similar that they suggest the terms are equivalent. The statutory framing 0f design standards as both eligibility criteria and criteria capable 0f review during the extended timeframe for public oversight is problematic because 0f the distinct deadlines for making those distinct determinations. Treating compliance with Obj ective design standards as an objective planning standard under subdivision (a) arguably renders as surpluSage the later deadline for design review in subdivision (c)(l). Coufls typically avoid intelpreting statutes in such manner. (Amer! v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Ultimately, the Court need not resolve this ambiguity based on the pafiicular record and arguments advanced here. The City did not comply by either deadline and does not ask for additional time t0 conduct public oversight in its supplemental brief 0n the scope 0f relief that is warranted. 25 ORDER GRANTWG PETITIONS FOR WRIT OF MANDATE
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because the City did not adequately identify objective standards and provide an explanation 0f inconsistencies supported by substantial evidence in its SB 35 denial letter.
First, the City did not adequately identify applicable objective standards with which the project did not comply. The City conceded its initial error in asserting that higher percentage of affordable units was required; it had relied 0n an outdated and incorrect HCD determination. (AROOOI 69.) Thus, it is undisputed that the first bullet point in the City’s denial letter was based 011 an incorrect and inapplicable standard.
As for the other two bullet points, the City did not adequately identify the standards or code provisions it was referring t0 01‘ relying 0n. It concluded the proj ect lacked “the required number 0f off-street residefitial and Visitor parking spaces” and “adequate access/egress t0 the proposed off-Street parking.” (AR000127.) But it is not apparent from this vague statement just what those purpofied standards are. 01‘ where they can be located. Thus, the City did not adequately identify the parking standards it was relying 0n. And notwithstanding the opacity and ambiguity 0f the City’s statement, it is apparent that it was not relying on permissible, obj ective standards for parking. First, section 65913.4, subdivision (d)(2) states that “the local government shall not impose automobile parking requirements for streamlined developments approved pursuant t0 this section that exceed one parking space per unit.” (§ 65913.4, subd. (d)(2).) And for proj ects meeting certain criteria—such as projects within 011e—half mile of‘tl‘ansithno parking requirements may be imposed. (§ 6591 3.4, subd. (d)(1).) Consequently, the City not only failed t0 identify the purported parking requirement but also failed t0 account for the prohibitions in section 6591 3.4, subdivision (d) as well. Moreover, the City has yet t0 identify any evidence in the record t0 support the conclusion that it could require more parking based 011 the location and characteristics 0f the proj ect here.
As for ingress and egress, “adequacy” is not an obj ective stahdard that may be applied t0 streamlined proj eats. Obj ective standards are those “that involve 110 personal 0r subjective judgment by public official and are uniformly verifiable by reference t0 an external and uniform benchmark 0r criterion available and knowabls by both the development applicant 0r proponent and the public official before submittal.” (§ 65913.4, subd. (a)(S).) What qualifies as 26 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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adequate—in the absence 0f an identifiable standard 01‘ definition—is simply matter of personal 0r subj ective judgment. T0 date, the City has not identified uniformly verifiable, knowable standard for adequate ingress and egress. Accordingly, it impermissibly relied 0n subjective standard in its denial letter.
What’s more, there is n0 explanation in the denial letter about how the proposal was inconsistent with the unspecified standards applied by the City. For example, the City did not explain that the project provided only number of parking spaces when the required number was Y. So, the City’s denial letter was not code-compliant in this regard as well.
The City does not present convincing argument t0 support contrary conclusion. In the City’s papers, it does not clearly and directly counter petitioners’ supporting points. For example, the City does not argue that it adequately identified all 0f the Objective standards set forth in its denial letter 01‘ that all 0f the standards it identified qualified as objective standards permissibly applied in the course 0f streamlined review. And the City does not explain how its cursory reference t0 such standards qualified as “an explanation for the reason 0r reasons the development conflicts with that standard 0r standards.” (§ 6591 3.4, subd. (b)(l).)17 Instead, the City argues the denial letter, when read in conjunction with the incomplete notice, put Developer 0n sufficient notice so as t0 somehow satisfy section 6591 3.4. This argument lacks merit.
The first problem with the City’s contention is that it relies 0n an unspecified standard for the sufficiency 0f notice in lieu 0f the standard spelled out by the Legislature in section 65913.4, subdivision (b)(l). Although not clearly articulated by the City, it seems t0 invoke the concept 0f notice in the context 0f the constitutional minimum for procedural due process. (See generally Gilbert v. City ofSunnyvaZe (2005) 130 Cal.App.4th 1264, 1275—1280.) But the issue here is not whether the City met the constitutional minimum. The issue is whether it complied with the applicable statutory requirements.
17 Section 6591 3.4 does not merely require statement ofreasons for denying an application for streamlined review. Rather, it imposes the more specific requirement 0f an explanation 0f how the proposed development conflicts with the objective standards that the municipality identifies.
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The City does not advance persuasive argument for disregarding the Specific statutory requirements for notice. While it purpons t0 invoke principle 0f statutOIy construction that places substance over form, it is not necessary t0 rely 0n, and the City does not fairly interpret and rely 0n, that principle. (See generally Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1332 [discussing scope and limitations 0f concept 0f substantial compliance].) In actuality, the City urges complete disregard for the language of the statute in vacuum and without regard for the statute’s purpose. In other words, the City disregards the form and the substance 0f the statute. The language the City asks the Court t0 ignore——What it suggests is mere formality—is in fact the specific procedure at the heart 0f the statute that effectuates its purpose.
In the absence 0f deemed compliance under section 6591 3.4, subdivision (b), the statute would operate as mere suggestion without an enforcement mechanism. And, because section 659 .4, subdivision (b) is consistent with and Effectuates the purpose 0f the statute, there is 110 inconsistency between that “form” and the substance 0f the statute necessitating reconciliation 0f those concepts under the canon invoked by the City. The City’s argument in this regard is questionable and its reliance 0n County ofKem v. TCEF, Inc. (2016) 246 Cal.App.4th 301 is misplaced. The Court applies the requirements for notice 0f inconsistency that are plainly spelled out in the statute, not an amorphous due process standard that would d0 violence to its very language and purpose.
The second problem with the City’s argument is that it relies 0n an implausible and unreasonable interpretation 0f the record. The City states that its incomplete notice and denial letter provide sufficient documentation when read together. But the terms 0f these documents d0 not support such construction. The City explicitly stated that it was proceeding as though it had two applications submitted by Developer in November 201 8. It purported t0 deny one application and find the other incomplete. The conespondence setting forth those distinct decisions, while issued together, cannot be fairly read and interpreted in the manner the City now urges. The incomplete notice does not purpofi t0 specify inconsistencies with Obj ective standards under SB 35; it purports t0 specify the additional information required before traditional, discretionary review could be commenced. Similarly, the denial letter does not purport t0 require additional 28 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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information so an SB 35 determination could be made; the letter purports t0 finally reject the streamlining application upon completion 0f the City’s review. And so, the City’s own belief that there were two applications and the unequivocal statements in each discrete item of correspondence purporting t0 separately dispose 0f each application cannot fairly be read together as one, code-compliant letter documenting inconsistencies with objective standards under section 65913.4, subdivision (b)(l). The City’s post—hoc, revisionist interpretation lacks credibility. 18
The City explicitly represented that it had made decision t0 deny the streamlining application. Because 0f this, it cannot 110w claim that, in fact, it did not make such decision and lacked sufficient information t0 d0 so, all to avoid the consequences 0f the inadequate notice 0f inconsistency it had provided. And, even if it could take this inconsistent position, it fails t0 substantiate the same. The City cites no authority for the proposition that it may evade the statutory deadlines in section 65913.4 by claiming incompleteness. In actuality, it appears the Legislature enacted section 65913.4, in part, t0 address the use 0f such delay tactics under existing law:
[T]he 1977 Pemnit Streamlining Act requires public agencies t0 act fairly and promptly 0n applications for development permits, including new housing. If they don’t, the project is deemed approved. Under the act, public agencies must compile lists 0f information that applicants must provide and explain the criteria they Will use t0 review permit applications. Public agencies have 30 days t0 determine whether applications for development projects are complete; failure t0 act results in an application being “deemed complete.” However, local governments may continue t0 request additional information, potentially extending the time before the application is considered complete, which is the trigger for the approval timeline to commence. This has led t0 the Permit 18 The Court also finds unpersuasive the City’s assertion that Developer somehow created confusion over its application based 011 the cover sheet it used. (Opp. at p. 9:20—28.) The City had not updated its cover sheet t0 account for streamlining applications and does not point t0 any evidence in the record that it had created and made available separate form 0r cover sheet for them. Thus, under the circumstances and given the explicit and clear statements in the application itself about the nature 0f the review Developer was requesting, this assertion and characterization by the City also lacks credibility. 29 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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Streamlining Act t0 be characterized as “paper tiger” that rarely results in accelerated development approvals.
(Sen. Gov. Finance Com, Rep. 0n Sen. Bill N0. 35 (2017—2018 Reg. Sess.) April 26, 2017.) Arguably, if the City had truly lacked sufficient information 0n which t0 make an SB 35 determination, it could have endeavored t0 follow section 6591 3.4 in stating as much by identifying the Objective standards that it was applying and explaining how it could not conclude, 0r lacked sufficient information t0 conclude, that the project was consistent With those standards.
Furthemmre, the City does not present reasoned analysis t0 suppon the conclusion that reasonable person simply could not find that the project was consistent with obj active standards without all 0f the infomlation set forth in the notice 0f incomplete application. The bullet points at page 23 0f the City’s opposition d0 not cure the gaps in its analysis or appear, 0n their face, t0 encompass objective standards.
In sum, the City does not establish that it properly concluded that Developer’s application was incomplete as matter 0f law 0r fact (e.g., the contents 0f the denial letter). The City unequivocally denied the streamlining application and will be held t0 the reasons aITiculated in its denial letter.
For all 0f these reasons, petitioners show and the City does not effectively refute that it did not provide code-compliant notice 0f inconsistency. This conclusion is corroborated by the opinion ofHCD. (See AR1330; see also Pet. Supp. RJN.) It follows under section 65913.4 that Developer’s proposal was deemed t0 comply with obj active standards as matter 0f law and irrespective 0f whether the proposal is consistent with those standards as matter 0f fact. The City’s points 0n Whether the proposal was, in fact, inconsistent are immaterial, particularly t0 the extent the City addresses purported inconsistencies other than those identified in the denial letter and within the statutory timefi‘ame for notice. 19
(Opp. at pp. 24:9—27: 8.)
19 Because 0f the essential statutory deadlines in section 65913.4, the Court does not address the City’s belated and post—hoc rationales in detail. That said, petitioners present number of cogent points about the legal and factual illegitimacy 0f these belated rationales (Pet.
Brief at pp. 27:6—33:1), which points the City largely fails t0 address in Opposition (Opp. at pp. 24:21~29:2).
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2. Density Bonus Law
“In 1979, the Legislature enacted the density bonus law, section 6591 5, which aims t0 address the shortage 0f affordable housing in California.” (Latinos Unidos del Valle de Napa Solano v. Coumjv ofNapa (2013) 217 Cal.App.4th 1160, 1164 (Latinos Unidos).) “Although application of the statute can be complicated, its aim is fairly simple: When developer agrees to construct certain percentage 0f the units in housing development for 10W 01‘ very 10w income households, 01' t0 construct senior citizen housing development, the city 01‘ county must grant the developer one 0r more itemized concessions and ‘density bonus,’ Which allows the developer t0 increase the density 0f the development by certain percentage above the maximum allowable limit under local zoning law.” (Lagoon Valley, supra, 154 Cal.App.4th at p. 824, citing 6591 5, subds. (a), (b).) “In other words, the Density Bonus Law ‘reward[s] developer who agrees t0 build certain percentage 0f low-income housing with the opportunity t0 build more residsnces than would otherwise be permitted by the applicable local regulations.’ [Citati0n.]”20 (Lagoon Valley, supra, 154 Cal.App.4th at p. 824.)
“T0 ensure compliance with section 65915, local governments are required t0 adopt an ordinance establishing procedures for implementing the directives 0f the statute.” (Latinos Unidos, supra, 217 Ca1.App.4th at p. 1164, citing 65915, subd. (31).) The general rule is that city’s density—bonus ordinance must be consistent with the statewide Density Bonus Law and is preempted t0 the extent it conflicts. (Lagoon Valley, supra, 154 Ca1.App.4th at p. 830.) That said, while the Density Bonus Law establishes the minimum bonuses and incentives municipality is required t0 provide, the law does not preempt municipality from providing greater bonuses 0r incentives in its own ordinance. (Id. at pp. 825—826.) Additionally, densitybonus ordinance must establish procedure and timeline for evaluating density-bonus requests that is consistent with the Density Bonus Law, including by enumerating the documents and 20 In the event 0f an inconsistency between the maximum density allowed under the zoning ordinance and the general plan, the general plan controls and provides the limit used t0 calculate (using the specified bonus percentage) the number 0f bonus units that may be built. (Wollmer v. City ofBerkeley (201 1) 193 Cal.App.4th 1329, 13444345 (Wollmer 11).) 31 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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information that must be submitted as part 0f complete request. (§ 6591 5, subds. (a)(2)—(3).) In codifying transparent and expeditious procedure, municipality “shall not condition the submission, review, 01‘ approval 0f an application [for density bonus] 0n the preparation of an additional report 01' study that is not otherwise required by state law, including [the Density Bonus Law].” (§ 65915, subd. (a)(2).)
The City’s density-bonus ordinance is codified in Los Altos Municipal Code section
14.28.040. Under section 14.28.040, subdivision (C)(1)(a)(i) 0fthe City’s code, development with 10 percent 0f its units designated for low-income households “shall be granted” 20 percent density bonus. This density bonus increases by 1.5 percent, up t0 maximum 0f 35 percent, for each additional percentage point 0f low-income housing provided. So, for example, davelopment with 11 percent 0f its units designated for low-income households is entitled t0 21 .5 percent density bonus. As relevant here, development with 20 percent 01‘ more units designated for low~income households will be granted the maximum, 35 percent density bonus.
That density bonus is calculated as percent “increase over the otherwise maximum allowable gross residential density .” (Los Altos Mun. Code, 1428.040, subd. (B)(2); see also 65915, subd. (fl)
developer may additionally obtain an incentive for designating units for low-income households. (Los Altos Mun. Code, 1428.040, subd. (C)(1)(a)(ii).) developer must be granted one incentive for designating 10 percent 0f units for 10w~incon1e households, two incentives for designating 20 percent, and three incentives for designating 30 percent 0r more. (Ibid; see also 65915, subd. (d)(2)(A)—(C).) The City has codified “on—menu incentive?»— incentives that “would not have Specific adverse impact”—in the density-bonus ordinance. (Los Altos Mun. Code, 14.28.040, subd. (F).)
city “Shall gran bonus 0r incentive unless it makes written findings supported by substantial evidenca that: there will be 110 identifiable and actual cost reduction t0 provide for affordable housing costsfihere Will be specific, adverse, unmitigable impact on‘public health and safety, the environment, 0r registered historic places; 0r granting the bonus 0r incentive is contrary t0 state 0r federal law. (§ 65915, subd. (d)(1); see also L03 Altos Mun. Code, 32 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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28 1428.040, subd. (F)(3).) And, “[i]n 110 case may city apply any development standard that will have the effect 0f physically precluding the construction 0f development meeting the criteria 0f subdivision (b) at the densities 0r with the concessions 0r incentives permitted by [the Density Bonus Law].” (§ 65915, subd. (e)(1).) developer may seek waiver 01' reduction 0f such standards that physically impede construction 0f the development. (13nd) “The applicant may initiate judicial proceedings if the city refuses t0 grant requested density bonus, incentive, 0r concession.” (§ 65915, subd. (d)(3).) As noted, this proceeding is ordinarily brought in administrative mandamus. (See, e.g., Lagoon Valley, supra, 154 Cal.App.4th at pp. 812, 816—817.) The city “shall bear the burden 0f proof for the denial 0f requested concession 0r incantive.” (§ 65915, subd. (d)(4).) “If court finds that the refusal t0 grant requested density bonus, incentive, 0r concession is in Violation 0f this section, the court shall award the plaintiff reasonable attorney’s fees and costs 0f suit.” (§ 65915, subd. (d)(3).) In Developer’s application (inclusive 0f its density bonus repofi), it proposed designating two 0f eight base units—ifi. 25 percent 0f the base units—for low—income households. (AROOOOIO, AR000061 .) Developer asserted that this level 0f affordability entitled it t0: 1) 35 percent density bonus; and 2) two concessions, only one 0f which it sought t0 use. (AROOOOIO, AR000061 .) Developer selected an 11-foot height increase—which is on-menu (L03 Altos Mun.
Code, 14.28.040, subd. (F)(1)(d))—as its concession. (AROOOOIO, AR000061.) Based 0n the bonus and concession, Developer proposed constructing seven additional units. (AR000061).21 It 27 Consistently with state law, the Los Altos Municipal Code defines density bonus as an “increase over the otherwise maximum allowable gross residential density .” (Los Altos Mun. Code, 1428.040, subd. (B)(2); see also 65915, subd. (fl) The maximum allowable density means the density allowed under local zoning ordinance 0r general plan, with the maximum density in the general plan controlling in the event 0f an inconsistency. (§ 65915, subd. (0)(2); see also Lagoon Valley, supra, 154 Cal.App.4th at p. 824.) Developer asserts and the City does not seem t0 dispute that there is no standard for units 01' intensity (Floor Area Ratio) applicable t0 buildings, like the proposed development, that are zoned Commercial-Retail Sales/Office-Administrative District (CRS/OAD). (AROOOOI 1, AR000062 [Density Bonus Rep01't].) Perhaps there is no standard because housing above the ground floor qualifies as conditionally—permitted use under L05 Altos Municipal Code section 1454.040 as compared t0 an office 0r retail use that is permitted by right under section 1454.030. In any event, instead 0f applying the density bonus t0 the maximum density allowed under the law (either the ordinance 33 ORDER GRANTING PETlTIONS FOR WRIT OF MANDATE
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does not identify specific, adverse, unmitigable impact on public health and safety. appears the seven units exceed the number authorized by the 35 percent density bonus standing alone, so the parties’ dispute seems t0 hinge 011 whether the right t0 an 11~f00t height increase necessarily includes the right t0 include additional housing units in that additional space. (See AR0023 10—AROO231 1.)
As threshold matter, the City’s interpretation 0f the Density Bonus Law is incorrect.
The City asserts that any and all concessions, incentives, and waivers must result— collectively—in n0 more than 35 percent increase in density. Courts have routinely rejected such an interpretation 0f the law. The 35 percent bonus authorized under the Density Bonus Law and the City’s own ordinance is the mandatory minimum city must provide; it is not cap. (Lagoon Valley, supra, 154 Cal.App.4th at pp. 823—826.) And so, the City was required, at minimum, t0 provide 35 percent bonus and any other incentive 0r concession required by law.
Otherwise, t0 the extent the City believed any additional incentive 0r concession was discretionary, it was required t0 infoml Developer 0f this conclusion in code-compliant manner by making the statutorily—required findings. (See 65915, subd. (d)(1); see also Los Aitos Mun.
Code, 14,28,040, subd. (F)(3).) The City failed t0 d0 so here. Instead, the City made vague statement that “the requested concessions and waivers appear t0 raise substantial issues concerning public health and safety, including questions regarding” compliance with the Americans With Disabilities Act (42 U.S.C. 12101 et seq.). (AR00231 1.) On its face, this statement is SO equivocal as t0 fall short 0f an affirmative finding. Furthermore, this statement Accordingly, this finding is deficient.
T0 be sure, although the City bears the burden ofjustifying its density-bonus decision, it does not attempt t0 justify that decision under an appropriate standard 0f review and based 0n the statutory requirements. Its opposition instead focuses 0n its interpretation 0f the 35 percent bonus 01‘ the general plan), both parties appear, at times, t0 treat the bonus as applying t0 the number 0f base units. (See, e.g., AR002310—AR002311.) 34 ORDER GRANTING PETITIONS FOR WRIT 0F MANDATE
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28 as cap, which interpretation is contrary to established precedent. Accordingly, petitioners” density-bonus claim is meritorious; the City did not comply with the law.
In reaching this conclusion, the Court notes that it remains unsettled whether the City could attempt t0 deny the density-bonus request for the first time during the administrative proceeding. This is because section 6591 3.4 contemplates that proposal subject t0 streamlined review may contain bonus units. (§ 63913.4, subd. (a)(2)(C).) Arguably, t0 determine whether project With bonus units comports with the objective standards in section 65913.4, city must determine Whether the bonus units are allowable in the course 0f streamlined review. In truncating the review process through section 6591 3.4, the Legislature has not clearly addressed how such changes operate with other housing laws, such as the Density Bonus Law. Ultimately, because even the City’s final resolution is deficient, the Court does 110i and need not resolve this question.
In concluding that the City violated the Density Bonus Law, the Court rejects the City’s argument that Developer’s application was incomplete or lacked sufficient information t0 allow it t0 evaluate the density-bonus request.
“A local government shall not condition the submission, review, 0r approval 0f an application pursuant t0 this chapter'on the preparation 0f an additional report 01' study that is not otherwise required by state law, including this section.” (§ 65915, subd. (20(2),) This prohibition does not preclude municipality from requiring “reasonable documentation t0 establish eligibility for requested density bonus .” (Ibid) But, municipality “shall [p]r0vide list o'f all documents and information required t0 be submitted with the density bonus application in order for the density bonus application t0 be deemed complete.” (§ 65915, subd. (a)(3)(B).) “This list shall be consistent with this chapter.” (Ibid) Collectively, these directives and prohibitions establish that municipality cannot condition consideration and approval 0f density-bonus request 0n information 01‘ documents unless it specifies these materials in advance and in conformity with the Density Bonus Law.
Here, Los Altos Municipal Code 14.28.040, subdivision (D) specifies the local forms and other information an applicant must submit with density-bonus request. That said, with the 35 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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exception 0f several forms, the ordinance broadly requires “reasonable documentation” 0f certain facts and does not specify particular documents that must be submitted. (Los Altos Mun. Code, 14,28,040, subd. (D).) In the City’s opposition, it Offers conclusory assertion that Developer’s‘ application was incomplete. The City does not explain how its application requirements comport with those permitted under the Density Bonus Law. And the City does not attempt t0 justify the sufficiency 0f its findings or the evidence 0n the subject 0f completeness. This presentation is insufficient t0 carry the City’s burden 0f establishing that it complied with the law.
Looking t0 the City’s final resolution and the notice 0f incomplete application referenced therein, and assuming for argument sake that this notice could be considered as part 0f the City’s denial 0f the streamlined application, the propriety of the City’s conduct is not apparent. The “Density Bonus Report Submittal Requirements”~—a form that accompanied the notice 0f incomplete application——indicates that Developer had largely submitted all required information. (AR000147—AR000149.) Based 0n circling and underlining 011 the second page 0f this form, the City seemed to take the position that it needed additional documentation that incentives 01‘ concessions would result ifi cost reductions and that waivers were needed for standards that would physically preclude the concessions 0r incentives. (AROOOMSJ Because the Density Bonus Law now puts the onus 0n municipality t0 make finding t0 support denial 0f density— bonus request, SUch as finding that concession 01* incentive would not result in cost reductions (§ 65915, subd. (d)(1)(A)), the City’s insistence that Developer prove the contrary in the first instance Shifts the burden t0 the applicant in contravention 0f the statute.” And, also, the requested “reasonable documentation” appears t0 concern matters beyond the eligibility i11f01mation that can be requested. (§ 65915, subd. (a)(2).) Moreover, Developer asserts that the City is incorrect because Developer did, in fact, submit sufficient information. This assertion is correct. The claim that the City Gould not determine the allowable base density is not credible 22 The record reflects that the City sought out consultant but apparently never hired one 01‘ completed the process required t0 evaluate and make findings sufficient t0 rej ect Developer‘s density-bonus request. (See AR002332~AR002336 [proposed scope 0f work from Keyser Marston Associates].)
36 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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given that density is determined by municipal law. And, as for eligibility, Developer otherwise presented detailed information in its application about its building plans t0 allow the City to evaluate eligibility for density-bonus. The City did not rebut this point in its papers 0r at the hearing. To summarize, even setting aside the City’s inadequate argument and analysis 0n the Density Bonus Law, the record undercuts any claim of incompleteness based 0n what city may legally ask for and what Developer, in fact, presented here.
3. Housing Accountabilily Act
The Housing Accountability Act or “HAA (§ 65589.5), known as the ‘anti—NIMBY law,’ was designed t0 limit the ability 0f local govermnents t0 rej ect 0r render infeasible housing developments based 0n their density without thorough analysis 0f the ‘economic, social, and environmental effects 0f the action .’
(§ 65589.5, subd. (b).)” (Kaine! Gardens, LLC v. City 0f L05 Angeles (2016) Cal.App.5th 927, 938 (Kalnel Gardensj.) “When proposed development complies with obj ective general plan and zoning standards, including design review standards, local agency that intends to disapprove the proj ect, 0r approve it 0n the condition that it be developed at lower density, must make written findings based 011 [a preponderance 0f the evidance 0n the record] that the project would have specific, adverse impact 0n the public health 0r safety and that there are n0 feasible methods t0 mitigate 01' avoid those impacts other than disapproval 0f the project. (§ 65589.5, subd. (j)(1).)”23 (Kaine! Gardens, supra, Cal.App.4th at pp. 938—939.) And, much like the streamlining statute (§ 65913.4), the HAA requires written notice 0f inconsistency within 30 01‘ 60 days and provides that if an agency “fails t0 provide the required documentation pursuant t0 subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard: requirement, 0r other similar provision.” (§ 65589.5, subd. (j)(2).)
23 Until December 1, 201 7, section 65889.5 required that an agency’s findings be supported only by substantial evidence. Effective January 1, 201 8, the findings must be supported by preponderance 0f the evidence. (Sen. Bill N0. 167 (20174018 Reg. Sess.) [Stats. 2017, ch. 368]; Assem. Bill N0. 678 (2017—2018 Reg. Sess.) [Stats. 2017, ch. 373].)
ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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28 If an agency fails t0 comply with the HAA, developer, prospective resident, 01' housing organization, such as Renters here, may seek judicial review by filing petition for writ 0f administrative mandate. (Kaine! Gardens, supra, Ca1.App.5th at p. 941, citing 65589.5, subd. (111).) Under that judicial review, section 65589.5, subdivision (i) explicitly places the burden 0f proof 0n the agency t0 “show that its decision is consistent With the findings as described in subdivision (d), and that the findings are suppofied by preponderance 0f the evidence in the record with the requirements of subdivision (0).”24 If an agency “disapproved proj ect 0r conditioned its approval in manner rendering it infeasible” without making the required findings, the court must issue an order 0r judgment compelling the jurisdiction t0 comply within 60 days, including by taking action 0n the development. (§ 65589.5, subd. (k).) “The court may issue an order 0r judgment directing the local agency t0 approve the housing development proj ect 01' emergency shelter if the court finds that the local agency acted in bad faith” When it disapproved the housing development 01‘ emergency shelter in violation 0f this section.” (§ 65589.5, subd. (k)(1)(A)(ii).) “The court shall retain jurisdiction t0 ensure that its order 0r judgment is carried out and shall award reasonable attorney’s fees and costs 0f suit to the plaintiff 0r petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes Ofthis ssction.” (§ 65589.5, subd. (k)(1)(A).) The City here fails t0 carry its burden 0f establishing compliance with the HAA. For the reasons articulated above, its claim 0f incompleteness 0f Developer’s SB 35 application is not persuasive. The City does not provide reasoned legal analysis t0 support the conclusion that the application was incomplete within the meaning 0f the HAA. And for the reasons previously articulated with respect t0 seCtion 6591 3.4, the City also did not provide code~compliant notice 0f inconsistancy under section 65589.5. And even in the final resolution adopted by the City 24 This standard is similar t0 the abuse 0f discretion standard ordinarily applicable in all manner 0f administrative mandamus proceedings. (See Kaine] Gardens, supra, Cal.App.5th at p. 937, citing Code Civ. Proc., 1094.5, subd. (b).)
25 “For purposes 0fthis section, ‘bad faith’ includes, but is 1101; limited t0, an action that is frivolous 01‘ otherwise entirely without merit.” (§ 65589.5, subd. (1).) ORDER GRANTING PETITIONS FOR WRIT. OF MANDATE
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28 Council, the City did not make statutorily required findings sufficient t0 rej ect 01‘ require modification of the project under the HAA. Accordingly, the City also does not establish that it complied with the HAA.
In reaching this conclusion, the Coum further finds that the City acted in bad faith as defined in the HAA because its denial was entirely without merit. The City‘s denial letter and the record before the Court do not reflect that the City made benign error in the course 0f attempting, in good faith, t0 follow the law by timely explaining to Developer just how its project conflicted with obj active standards in existence at the time 0r by trying to make findings that resemble what the law requires. Instead, in addition t0 tactics such as demanding an administrative appeal 0n less than one day’s notice and using strained constructions and textual interpretations t0 assert that Developer had presented two applications that had t0 be withdrawn, the City denied the streamlining application with faciafly deficient letter and later adopted resolution enumerating insufficient reasons for the denial. So, in addition to the fact that section 65913.4 warrants writ directing the City t0 issue the permit, its conductjustifies the same relief under section 65589.5, subdivision (k)(1)(A) as well.
C. Scope QfRelief
Because the Court concludes that the City violated section 65913.4, the Density Bonus Law, and the HAA, petitioners are entitled t0 writ relief. Nevertheless, the panics dispute and addressed in supplemental briefing the nature and scope 0f relief that should be awarded.
Petitioners ask the Court t0 provide relief under all three statutes, While the City argues the Court should solely order relief under section 6591 3.4 because additional statutory reliefis duplicative.
While the Court agrees that there is some overlap in the relief afforded by each separately applicable statute and that all three statutes warrant the same substantive 0utcome—~aff0rding relief in mandate—the Court rejects the City’s claim that the relief afforded by each statute is entirely duplicative. For example, as the City acknowledges, the Density Bonus Law and HAA authorize an award 0f attorney fees and costs. Even accepting the City’s suggestion that the Court fix the amount 0f such fees and costs at later date, this fact does not obviate the need for the Court t0 rule 0n these statutory bases as prerequisite for later motion for attomey fees 39 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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under either statute. Also, the HAA gives the Court continuing jurisdiction over statutory enforcement mechanisms, which may include fines for noncompliance. The additional remedies for enforcing the HAA are not duplicative. And, arguably, the Court must award relief under the HAA now as prerequisite for any later enforcement measures that may be necessary even accepting, as the City points out, that the time for such enforcement has yet t0 arrive. Ultimately, the City does not identify any legal basis for refusing t0 grant relief under all three statutes. For these reasons, the Court accepts petitioners’ argument that relief under each statute is warranted.
The Court holds that Developer’s proj ect was deemed t0 comply with applicable standards under SB 35 and that the City must rescind its decision t0 deny and instead approve and permit the project at the requested density. The parties agree that this directive t0 rescind the existing decision and pemlit the pl‘oj ect within 60 days, as compared t0 remanding the matter for further consideration, is the appropriate course 0f action. (City’s Supp. Brief at p. 8.) T0 the extent petitioners seek relief other than writ and declaratory judgment, including attorney fees, costs, and additional fines 01‘ penalties, the pafiies agree that such matters will be resolved by post-judgment noticed motion (for attorney fees 01‘ t0 tax costs) and, as for the penalties, further proceedings should they become necessary.
Finally, the Court declines t0 issue declaratory judgment. It is true that because declaratory relief is cumulative remedy “a proper complaint for declaratory relief cannot be dismissed by the trial court because the plaintiff could have filed another form 0f action.” (Californiansfor Native Salmon Assn. v‘ Department ofForestry (1990) 221 Cal.App.3d 1419, 1429.) And there is no categorical prohibition 0n joining complaint for declaratory relief with petition for writ 0f mandate; in appropriate circumstances, this is permissible. (Gong v. City 0f Fremont (1967) 250 Cal.App.2d 568, 574.) That said, when challenging an action under Code 0f Civil Procedure section 1094.5fla decision in particular instance as compared to policy 0r ordinance standing alone—mandamus relief is typically the exclusive remedy and declaratory relief is not additionally available 01' necessary. (Stare ofCa]. v. Super. Ct. (1934) 12 Cal.3d 237, 251—252; see also Selby Really C0. v. City OfScm Buenaventum (1973) 10 Cal.3d 110, 126427 [declaratory relief not proper vehicle for challenging denial 0f building permit].) In actuality, in 4O
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27 hybrid proceeding, declaratory relief may be sought t0 test the constitutionality 0r legality of an ordinance 01‘ policy 0n its face with an accompanying request for writ 0f mandate directed to the agency’s application 0f that ordinance 0r policy t0 the petitioner in particular. (Gong, supra, 250 Cal.App.2d at p. 574.) Here, petitioners d0 not seek declaration 0f the validity 0f the City’s policies, interpretation 0f the law, 0r zoning ordinance; rather, they seek declaratory judgment stating the City must issue the streamlined permit Developer applied f01'.26 In other words, they simply seek duplicative declarafion requiring the City t0 perform its duty and issue the permit.
The problem is not simply that the declaratory relief requested is duplicative, but rather, that the relief sought is proper subject of mandamus and it does not encompass question 0f validity or constitutionality that typically warrants additional declaratory relief in mandamus proceeding.
Accordingly, the Court exercises its discretion under Code 0f Civil Procedure section 1061 and declines t0 provide declaratory relief that would be duplicative 0f that already being provided in mandate.
IV. Conclusion
The petitions for writ ofmandate are granted, and judgment will be entered consistently with this Order. Petitioners are prevailing parties for purposes 0f costs 0f suit under Code 0f Civil Procedure section 1032, which costs would be claimed post-judgment by timely filed memoranda and which are subj ect t0 striking and taxing according t0 law. The judgment t0 be entered will direct the issuance of peremptory writ 0f mandate commanding the relief contemplated in this Order and consistently with its analysis and conclusions. Counsel for petitioners have already collectively proposed form ijudgment and form 0f writ t0 be issued, which they submitted with their post-hearing briefing. Counsel for petitioners are directed to provide those separate documents t0 the Court in Word format by email t0 Department}[email protected] within 10 days 0f service 0f this Order, with copy t0 counsel for the City. Counsel for the City is t0 submit any obj actions as t0 the form 0f the proposed judgment 26 The Court notes that in Petitioners” supplemental brief 0n the scope 0f relief and in their proposedjudgment, they elaborate 011 the declaratory relief sought in their pleadings. 41 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
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28 and proposed writ within 20 days from service of this Order, with coufiesy copy t0 the Court at the same email address and copy t0 counsel for petitioners.
IT IS SO 0RD D.
Date: Aprilétf2020
HELEN E.
Judge 0f the Superior Court
42 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE
60 12Analysis of the standard, parallel, playbook law firm processing template used to block and deny
applications. Not responsive/specific to actual facts
Menlo Park compared San Rafael
ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 1 of 6 Comparative Analysis of Municipal Housing-Application Defense Architecture Menlo Park / N17 Development - 80 Willow Road | San Rafael / River Landon - Coleman Drive Common-counsel pattern analysis: Nira F. Doherty / Burke, Williams & Sorensen LLP SBN 254523 12/2007 Ranking: AGGR Purpose and limits
• This document compares official legal and processing positions advanced by Menlo Park and San Rafael while each city was represented or advised by the same outside municipalhousing counsel. It focuses on recurring methods, not merely on the common result of nonapproval. • The projects are materially different: N17 proposed a 665-unit mixed-use, mixed-income AB 2011 project; River Landon proposed 29-unit and 14-unit SB 35 projects on six hillside residential lots. The governing statutes, scale, physical conditions, and procedural posture differ.
Executive observation
• The defensible conclusion is qualitative, in this first round: the convergence is concerning. Distinct projects and statutes ordinarily should generate issue-specific analyses.
Instead, the same unusual sequence recurs - threshold disqualification, project-boundary manipulation, post-hoc grounds, neutralization of Builder's Remedy and Density Bonus protections, applicant-funded municipal counsel, indemnity or hold-harmless demands, and an H6 response that denies the duty while answering only "as a courtesy." • The recurrence of the most unusual devices - especially requiring the applicant to finance counsel taking an adverse position and seeking indemnity against housing-law litigation - materially strengthens an inference of a common legal template or institutional defense strategy. It is reasonable to investigate whether that template originated with common counsel or Burke, Williams & Sorensen LLP.
• Engagement letters, billing narratives, invoices, drafts, template forms, internal emails, document metadata, and testimony showing who proposed and approved each device are being collected by JK.
Evidence legend
DIRECT - Established by an official letter, determination, email, or Attorney General notice reviewed here.
APPLICANT-REPORTED - Stated by River Landon; supporting invoice, form, or email should be appended before external use.
INFERENCE - A comparative conclusion drawn from multiple documented facts; not itself a direct admission.
ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 2 of 6 Comparative table
The sources are keyed at the end of the document.
No. / recurring strategy Menlo Park / N17 - 80 Willow Road San Rafael / River Landon - Coleman Drive Comparative analysis, inference strength, and evidentiary limits
A. Common counsel and threshold disqualification architecture
1. Common-counsel role
and limits
The Attorney General addressed the July 29, 2026 notice to Menlo Park Community Development Director Deanna Chow and to "Nina F. Doherty" of Burke, Williams & Sorensen, identified as Menlo Park City Attorney. The letter records that the Attorney General had recently met with both regarding 80 Willow Road.
Source: M1, p.1; M2/M3 addressee and signature records.
Doherty was San Rafael outside counsel. River Landon's counsel communicated directly with her about the October 6
determination. City staff later stated that processing and action occurred in consultation with City counsel. The July 1 H6 response copied Doherty and Kevin Siegel as outside counsel.
Source: S1, packet pp.125-126; S2, p.11; staff email re consultation with counsel.
DIRECT as to common counsel and material legal involvement.
This supports comparison of the cities' legal architecture. Review authoring, staff tables, citations, disputed acts. JK analysis in progress.
Evidence status: Direct documentary comparison
2. Threshold
disqualification from the
streamlined statute
Menlo Park asserted that the project was not a qualifying "housing development project" because of the hotel component and residential-square-footage calculation. That premise was then used to argue that AB 2011, Builder's Remedy protection, and H6 protections did not apply. The Attorney General rejected the key Builder's Remedy/hotel theory and found the housingdevelopment-project objection was also an impermissible lateradded ground.
Source: M1, pp.3-7; M3, pp.1-4.
San Rafael asserted that the projects were not "multifamily housing developments," relying on a local definition requiring attached units on one parcel or common lot. That premise was used as the master reason SB 35 did not apply and ordinary local controls remained available. This also very briefly asserted – that in their (unsupported opinion) ‘not multifamily’ by Nira Doherty summer 2025, without any further information. This was as River Landon outside counsel were wrapping up the supposed ‘scoping consultation’
Source: S1, Aug.27 determination pp.1-4; S2, pp.1-3.
STRONG DIRECT PARALLEL. In each matter, a threshold
definition was used as a master key to disable the streamlined statute and downstream protections. The precise definition differed because the statutes and projects differed.
Evidence status: Direct documentary comparison
3. Project-site geometry
selected to defeat
eligibility
Menlo Park treated the project site as coterminous with the larger legal parcel, importing wetlands and habitat outside the physically disturbed development area and affecting the urban-use analysis.
The Attorney General concluded that the statute required review of the actual area physically disturbed.
Source: M1, pp.3, 6-8.
San Rafael fragmented a unified six-lot, 1.4-acre multifamily project into separate single-family-lot analyses and asked whether any one parcel independently contained enough attached units to be multifamily.
Source: S1, Aug.27 determination pp.1-4; S4, row 1.
EXCEPTIONALLY STRONG FUNCTIONAL PARALLEL. Menlo
Park expanded the unit of analysis; San Rafael fragmented it. The direction was opposite, but the functional selection rule was the same: use the geography that produces ineligibility.
(Maybe this is the same as Mayor Colin’s ‘we pick the projects’?)/s Evidence status: Direct documentary comparison
4. Relabel the same
physical feature to
produce the needed legal
result
Menlo Park maintained that adjoining Timothy Hopkins Creekside Park was not really a park for the urban-use test, describing it instead as open space preserved for environmental value. The Attorney General rejected that characterization.
Source: M1, pp.6-7.
The San Rafael H6 audit identifies the connecting screen as a "fence" when that label supports a fence inconsistency, while the same physical connection is denied legal significance when River Landon relies on it to establish attachment/multifamily status among other attachments.
Source: S3, Part 1, element re-labelling; Part 2.
STRONG ANALOGICAL PARALLEL. A physical feature is
assigned the legal label that produces disqualification. The San Rafael element-relabeling conclusion is based on the applicant's comparative audit and should be tied to the actual plan sheets when used externally.
Evidence status: Direct plus comparative inference
5. Restrictive definition
supplied or selected after
submission
Menlo Park applied the current hotel language and argued that vesting did not protect the project from later state-law definitions.
The Attorney General concluded that the City failed to honor the applicant's statutory election among favorable Builder's Remedy provisions.
Source: M1, pp.7-8; M2, pp.3-4.
San Rafael substituted its local zoning definition of multifamily for the state SB 35 term and later after deadlines post-hoc advanced a common-wall interpretation of "attached," although River Landon contends no timely, adopted external benchmark for common-wall attachment had been identified.
Source: S1, Aug.27/Oct.6 determinations; S3, Items 5 and 11.
STRONG PARALLEL. Both approaches narrow state-law eligibility through a definition that the applicant says was unavailable, inapplicable, or supplied after the relevant vesting/submittal point.
Evidence status: Direct documentary comparison
6. Neutralize Builder's
Remedy before reaching
the merits
Menlo Park argued the hotel component prevented the project from being a housing development project and therefore from receiving Builder's Remedy protection. The Attorney General expressly rejected that position.
Source: M1, pp.7-8; M2, pp.3-4.
San Rafael asserted that the May 15, 2023 preliminary application expired because the formal SB 35 application was not deemed submitted within 180 days, notwithstanding the intervening scoping process, and then applied later-adopted 2024 standards.
River Landon disputes that loss-of-vesting theory. Later, San Rafael confirmed that vesting is May 15, 2023 per Statute.
Communication from Nira Doherty.
Source: S1, Aug.27 determination p.1 n.1; TAC allegations.
DIRECT CONCEPTUAL PARALLEL. First remove Builder's
Remedy status; then apply standards or procedures that would otherwise be restricted, displaced, or deemed satisfied.
Evidence status: Direct documentary comparison
7. Apply later, untimely,
inapplicable, or
entitlement-specific
standards
Menlo Park added new grounds involving permitted uses,
housing-development status, affordability, parking setbacks, frontage, and other standards after the first determination. The Attorney General concluded that omitted grounds could not later be used.
Source: M1, pp.3-6; N1, pp.2-3.
San Rafael invoked numerous local standards that River Landon credibly challenges as subjective, post-entitlement, waived, factually untriggered, or attached to entitlements not sought, including fence, subdivision, design-review, and informationdemand items.
Source: S4 standard-by-standard audit; S3, Parts 1-2.
STRONG PARALLEL. The volume of asserted standards creates the appearance of comprehensive noncompliance even where individual grounds are late, waived, discretionary, untriggered, or unrelated to the requested entitlement.
Evidence status: Direct documentary comparison
8. Recognize Density
Bonus relief in theory but
keep the underlying
inconsistency alive
Menlo Park acknowledged that height, parking-setback, and frontage standards were subject to Density Bonus incentives, concessions, or waivers, yet continued to cite them. The Attorney San Rafael noted that waivers or concessions had been
requested for height, setbacks, natural-state, floor-area, parking, and other standards, but continued listing the underlying provisions as inconsistencies while River Landon says the waiver NEAR-IDENTICAL PRACTICAL EFFECT. The statutory relief is acknowledged but not allowed to remove the inconsistency; the unresolved underlying standard continues to block approval.
Evidence status: Direct documentary comparison
ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 3 of 6 No. / recurring strategy Menlo Park / N17 - 80 Willow Road San Rafael / River Landon - Coleman Drive Comparative analysis, inference strength, and evidentiary limits
General concluded that the height waiver applied and the City could not enforce the restriction to prevent the proposed density.
Source: M1, pp.7-8.
requests remained undecided and outside the city’s 30 day shotclock.
Source: S1, Aug.27/Oct.6 tables; S4 waiver rows.
B. Repeated review, shifting grounds, and record construction
9. Multiple bites at the
cherry and post-hoc
grounds
Menlo Park issued successive AB 2011 determinations and defended its ability to identify new conflicts in later review. The Attorney General rejected that position and stated that the first determination set the parameters of later review.
Source: M1, pp.3-6; M2, pp.1-3.
San Rafael relied on the August 27 determination, September 28 ‘not able to approve’, October 6 determination, December 3 supplemental ‘denial’, March 24 new-application direction, April 17 completeness letter, and July 1 H6 response. The
attached/common-wall theory was advanced (the subjective theory on which San Rafael relied) after the October 6
determination.
Source: S1, Aug.27-Dec.3 chronology; S2, pp.1-11.
ONE OF THE STRONGEST PARALLELS – AND ONE OF THE
MOST SIGNIFICANT IN ITS EFFECT. The applicant answers one ground, yet another determination preserves or adds a different ground, including post-hoc and out of time. Menlo Park's post-hoc practice was expressly rejected by the Attorney General.
Evidence status: Direct documentary comparison
10. Treat resubmittal as a
vehicle to reopen
everything or require a
restart
Menlo Park repeatedly characterized N17's responses as partial resubmittals, incorporated earlier determinations, applied newly effective laws, and issued another comprehensive determination.
Source: M2, pp.1-3.
San Rafael treated the March 20 SB 35 resubmittal as requiring a wholly new general application, new checklist materials, new fees, replenishment obligations, an indemnity of the city’s actions causing significant damage to the applicant, and a
Reimbursement Agreement before it would be considered filed. (In fact also, a new application is impermissible in local law, requiring a 12 month wait window for substantially the same application). No new application was ever required, and no valid completeness assessment (such being subject to overriding SB 35 very substantive narrowing rules) was ever undertaken.
Source: S1, packet p.181; S2, pp.3-6.
STRONG FUNCTIONAL PARALLEL; SAN RAFAEL IS MORE
EXTREME. Menlo kept the review universe open; San Rafael purported to terminate the pending route and compel a restart.
Evidence status: Direct documentary comparison
11. Convert "insufficient
information" into an
inconsistency
Menlo Park identified plan inconsistencies and demanded further calculations and a comprehensive plan set. Some of those concerns were concrete, but the Attorney General emphasized that later review could not demand new information omitted from the initial list.
Source: M2, pp.4, 7-8; M1, pp.4-6.
River Landon's standards audit classifies 36 of 46 rows as information requests rather than actual findings of conflict. The July 1 response itself identifies ten items as based on insufficient information.
Source: S4 audit summary; S3, Part 2 finding 6.
STRONG PARALLEL WITH A QUALIFICATION. Menlo Park
documented some specific numerical discrepancies; San Rafael used information insufficiency much more broadly as the inconsistency itself.
Evidence status: Direct documentary comparison
12. Use an older, later, or
different plan set to
preserve the desired
conclusion
Menlo Park disclosed that it relied on the October 2025 fuller plan set when it considered the December partial sheets internally inconsistent. Whether that reliance was lawful is disputed, but the source set was identified.
Source: M2, pp.4, 7-8.
The San Rafael H6 audit finds that eleven rows used the September 6 plan set to defend the August 27 determination, even though those sheets did not exist on August 27.
Source: S3, Part 2 finding 1.
RELATED BUT NOT EQUIVALENT. Menlo openly relied on an
earlier fuller set. San Rafael allegedly used a later plan set retroactively to validate an earlier decision, a materially more serious record problem.
Evidence status: Direct documentary comparison
13. Selective quotation,
half-sentences, and
adjacent-question
answers
The Menlo H6 response narrows the noticed conduct and uses selective statutory framing, including describing the alleged CEQA/AB 2011 determination as the sole basis of disapproval after acknowledging a broader delay-course allegation.
Source: M3, pp.1-6.
The San Rafael audit documents partial-text objectivity, truncation followed by claimed confusion, column collapse, selective severance, substituted questions, straw-man responses, and quotations used for propositions they do not support.
Source: S3, Part 1, methods 1-18.
SAME FAMILY OF DEFENSIVE FRAMING; DIFFERENT
DEGREE. The line-by-line half-sentence and out-of-context record is much stronger and more extensively documented in San Rafael.
Menlo Park has some equivalents.
Evidence status: Direct documentary comparison
14. Stack alternative
holdings so defeating one
point changes nothing
Menlo Park argued that the project was not a housing
development project; the H6 notice was deficient; the CEQA challenge was untimely; substantial evidence was lacking; the hotel required separate processing; and CEQA could not begin without a deposit.
Source: M3, pp.1-8.
San Rafael argued that the project was not multifamily; final action had already occurred; the applicant refused to revise; the March 20 materials were not validly submitted; even if reviewed they were incomplete; and alternative statutory paths remained available. None of these are correct, nor according to law. Many shifting and conflicting explanations.
Source: S2, pp.1-11; S3, master-key and alternative holdings.
NEAR-IDENTICAL DEFENSIVE ARCHITECTURE. Multiple
independent disposals insulate the nonapproval result: overturning one asserted ground does not produce approval or even resumed processing.
Evidence status: Direct documentary comparison
15. Concede isolated
errors while preserving
the overall denial
Menlo Park later acknowledged that the 2026 site statute appeared to narrow the site and that certain SB 35
wetlands/habitat criteria could be met, yet retained other barriers.
Source: M1, pp.4-8; M2, pp.5-6.
San Rafael's July 1 response conceded three challenged items but treated two as moot because the application had supposedly been properly denied on other grounds; the underlying record was not fully withdrawn.
Source: S3, Part 2 findings 5-6.
STRONG PARALLEL. A ground can be conceded without
changing the outcome because a stack of alternative grounds remains. The San Rafael "concede-and-moot" device is the clearer documentary example.
Evidence status: Direct documentary comparison
C. Applicant-funded adverse counsel and indemnity - the most unusual common features
16. Require the applicant
to pay the City's legal
counsel taking the
adverse housing-law
position
The Attorney General found that Menlo Park required
N17/Applicant to pay City attorney fees during project review, before filed litigation. The master fee schedule did not disclose hourly project-counsel fees. The AG stated that the fees appeared to support successive determinations under strained
San Rafael's August 27 determination stated that unpaid projectprocessing fees (that included material sums to Nira Doherty) had to be reimbursed in full. These were challenged by applicant. The March 24, 2026 email required a new deposit, replenishment, and a Reimbursement Agreement before a new application would be VERY STRONG AND UNUSUAL PARALLEL. Requiring a
housing applicant to finance municipal counsel whose work supports denial or nonprocessing is not a generic project fact.
Menlo was prelitigation; San Rafael was already litigating. Direct evidence establishes the fee/reimbursement demands; the ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 4 of 6 No. / recurring strategy Menlo Park / N17 - 80 Willow Road San Rafael / River Landon - Coleman Drive Comparative analysis, inference strength, and evidentiary limits
interpretations of state law and directed the City to cease the practice.
Source: M1, pp.1, 8-10.
treated as filed. River Landon reports that City invoices were actually sent and itemized Doherty/Burke Williams legal work adverse to the project; those invoices should be appended.
Source: S1, Aug.27 determination p.2; packet p.181; applicant invoices to be appended.
specific Doherty invoice line items are APPLICANT-REPORTED until attached.
Evidence status: Direct as noted; applicant-reported details require appended exhibits
17. Require indemnity,
defense, or hold-harmless
protection against
housing-law litigation
The Attorney General concluded that Menlo Park's feeshifting/indemnity practice implicated Government Code section 65914.2, which prohibits requiring an applicant to indemnify, defend, or hold harmless the agency regarding claims that the agency violated housing-reform law. The AG characterized the legal work as anticipating litigation and directed the City to stop requiring payment.
Source: M1, pp.1-2, 9-10.
River Landon reports repeated Summer 2025 demands
associated with Doherty/San Rafael that it sign indemnity protection, followed by renewed March/April 2026 demands through the new-application/Reimbursement Agreement
materials. The March 24 email directly conditions filing on payment and execution of the Reimbursement Agreement, and the Indemnity
Source: S1, packet p.181; applicant Summer 2025 and Mar./Apr. 2026 forms/emails to be appended.
VERY STRONG. This is a highly specific risk-transfer device, not an ordinary merits response. Its recurrence in both matters materially increases the inference of a common template. Direct evidence currently establishes the Menlo AG finding and the San Rafael Reimbursement Agreement condition.
Evidence status: Direct as noted; applicant-reported details require appended exhibits
18. Same cost-shifting
device despite opposite
litigation posture
Menlo Park's legal-fee and indemnity requirements arose before the applicant filed litigation. The Attorney General nevertheless said the successive determinations had become tantamount to prelawsuit communications and that the fees appeared to fund legal resistance rather than neutral compliance review.
Source: M1, pp.9-10.
San Rafael continued or renewed the fee and indemnity demands after federal litigation began, including invoices for Doherty's work, and the March/April 2026 requirement to sign a
Reimbursement Agreement before processing.
Source: S1, packet p.181; applicant invoices/forms to be appended.
POWERFUL QUALITATIVE INFERENCE. The device cannot
readily be explained as ordinary management of a filed case because it appeared prelitigation in Menlo and during litigation in San Rafael. That cross-posture recurrence points away from project-specific necessity and toward a reusable counsel or firm strategy. The city conditions processing on the applicant ‘paying for the rod that is for the applicants back – and it’s use’. Stronger evidence of government oppression it would be difficult to find.
And, before the needed processing continues, sign that the city is not liable for the oppressive beatings.
Evidence status: Direct as noted; applicant-reported details require appended exhibits
D. H6 response architecture, blame shifting, and routes that preserve nonapproval
19. Deny that H6 applies,
then respond only "as a
courtesy"
Menlo Park argued that the project was not a housing
development project, the notice was deficient, and H6 did not apply; it nevertheless issued a response "as a courtesy as if it were required."
Source: M3, pp.1-2.
San Rafael argued that conventional final administrative action had already occurred, so the course-of-conduct H6 provision did not require a response; it nevertheless responded "in an abundance of caution and as a courtesy."
Source: S2, pp.3, 11.
EXCEPTIONALLY CLOSE WORDING AND STRUCTURE. Deny
the legal duty, provide a conditional response, and preserve the argument that no enforceable H6 obligation ever arose. This is one of the strongest common-template indicators, though it does not alone prove common authorship.
Evidence status: Direct documentary comparison
20. Use CEQA or ordinary
review as the fallback after
denying ministerial
eligibility
Menlo Park said that if AB 2011 did not apply, CEQA review was required, retained an environmental consultant, demanded a $799,951 deposit, and attributed delay to the applicant's nonpayment.
Source: M3, pp.2, 7-9.
San Rafael's completeness materials demanded a transportation analysis whose guidelines contemplated CEQA conditions or mitigation, while River Landon and CalHDF contended that CEQA did not apply to a qualifying SB 35 ministerial project. San Rafael repeatedly stated make an application under SB684 or SB9.
Source: S1 completeness/H6 materials; CalHDF analysis in packet.
STRONG FUNCTIONAL PARALLEL. First deny eligibility for the ministerial/CEQA-exempt route; then move the project into a slower, costlier, inappropriate, discretionary or CEQA pathway and/or a start over.
Evidence status: Direct documentary comparison
21. Shift responsibility for
continuing delay to the
applicant
Menlo Park blamed the applicant's incomplete/inconsistent materials, deficient H6 notice, and refusal to pay the CEQA deposit.
Source: M3, pp.2-9.
San Rafael said River Landon definitively refused to modify the project, even though the applicant later submitted a modified March 20 proposal, and repeatedly faulted the applicant for failing to prove consistency or submit more material.
Source: S2, pp.1-3; S1, Mar.20-24 chronology.
STRONG SHARED DEVICE. Nonapproval is reframed as the
applicant's refusal, omission, nonpayment, or procedural error.
Whether each assertion is accurate must be tested against the chronology and actual submissions.
Said another way – ‘ALWAYS blame the victim’.
Evidence status: Direct documentary comparison
22. Offer a route forward
only if the applicant
abandons the claimed
statutory right
Menlo Park offered to proceed if N17 revised the residential percentage, removed or separately processed the hotel, and funded CEQA. Those instructions depended on the disputed premise that AB 2011 and Builder's Remedy protections were unavailable.
Source: M3, pp.6-9.
San Rafael directed River Landon to file a wholly new application, losing its vesting, and necessitating a redesign of the project, use a generalized checklist, pay new deposits, execute a
Reimbursement Agreement, and place the Density Bonus
requests into the new filing, rather than recognize the pending SB 35 resubmittal.
Source: S1, packet p.181; S2, pp.3-6.
SAME BASIC EFFECT. The path forward is available only after surrendering the applicant's existing statutory position, vesting, or deemed-consistency theory. San Rafael's proposed routes were more internally inconsistent.
The Government says - ‘Drop your defenses, surrender, and we’ll take care of you’
Evidence status: Direct documentary comparison
23. Use a "master-key"
premise to avoid
independent analysis of
multiple issues
The premise "not a housing development project"! is used to dispose of Builder's Remedy, H6, CEQA-exemption, and other protections without separately analyzing each. These were categorically rejected by the Attorney General.
Source: M3, pp.1-8.
The premise "not multifamily"! is used throughout the July 1 response to dispose of preemption, parking, H6, Density Bonus, and resubmittal arguments without independent analysis.
Source: S3, methods 23-24; S2 generally.
STRONG STRUCTURAL PARALLEL. A single gateway
conclusion is repeated across unrelated issues, making the entire defense rise or fall on a threshold interpretation the applicant says is untimely or wrong.
Evidence status: Direct documentary comparison
ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 5 of 6 No. / recurring strategy Menlo Park / N17 - 80 Willow Road San Rafael / River Landon - Coleman Drive Comparative analysis, inference strength, and evidentiary limits
24. Record reconstruction,
citation defects, and afterthe-fact rationalization
The Menlo materials incorporate prior responses and rely on earlier plan sets, but the reviewed record does not show a citation-error pattern comparable in volume to San Rafael. The Attorney General's principal criticisms were substantive: post-hoc grounds, site definition, Builder's Remedy, Density Bonus, fees, and indemnity.
Source: M1, pp.3-10; M2/M3 generally.
The San Rafael H6 audit identifies eleven wrong-plan-set uses, twenty-five references to nonexistent sections, two facial date errors, a citation to the wrong document, three conceded findings, and ten items expressly decided on insufficient information.
These are learned methods & skills learned and deployed inhouse.
Source: S3, Part 2 findings 1-6.
NOT SYMMETRICAL. The extensive record-defect pattern is a particularly strong San Rafael feature and should not be attributed to Menlo Park without comparable evidence. The broader
commonality is after-the-fact preservation of the denial result.
Evidence status: Direct documentary comparison
Overall comparative conclusion
These are not the same projects. N17's proposal is a 665-unit mixed-use AB 2011 project in Menlo Park. River Landon's proposals are 29-unit and 14-unit SB 35 projects on six hillside residential lots in San Rafael. Their physical facts, statutory criteria, project scale, and litigation posture differ substantially. One would therefore expect materially different, fact-specific municipal analyses.
Instead, the same unusual blocking architecture appears in both matters: define the project out of the streamlined statute; select the project-site geometry that supports ineligibility; neutralize Builder's Remedy and Density Bonus protections; preserve or add grounds after the first determination; shift the project into ordinary or CEQA review; place legal or consultant costs on the applicant; seek indemnity or hold-harmless protection; and answer the H6 notice by denying the duty while responding only as a courtesy.
As a matter of evidentiary inference, the likelihood that this entire collection of uncommon devices arose independently from the different project facts alone is low. The recurrence of applicant-funded adverse counsel and indemnity against housing-law claims is particularly probative because those devices are unusual, specific, and not naturally dictated by either project's physical design.
The common-counsel fact provides a plausible connective explanation. The present record supports a reasonable inference that a common legal template or strategy was used across the two cities. Invoices, engagement letters, billing narratives, drafts, template documents, internal emails, metadata, and testimony are next in the analysis architecture sequence.
Council letter and/or supporting memorandum
The Menlo Park and San Rafael projects are factually and legally different. N17 proposed a 665-unit mixed-use project under AB 2011; River Landon proposed much smaller hillside projects under SB 35. Those differences should have produced different, project-specific analyses. Instead, both cities, while represented or advised by the same outside municipal-housing counsel, advanced a strikingly similar sequence of defenses: threshold disqualification from the streamlined statute, manipulation of the relevant project-site or parcel analysis, denial or neutralization of Builder's Remedy and Density Bonus protections, repeated post-deadline determinations, applicantfunded City legal counsel, indemnity or hold-harmless demands, and an H6 response that first denied any duty to respond and then responded only "as a courtesy." The qualitative inference is powerful. The probability that this entire collection of uncommon devices arose independently from the different project facts, rather than from a common legal template or strategy, appears very low. The recurrence of requiring the applicant to pay for counsel taking an adverse position and to indemnify the City against housing-law claims is especially concerning. For San Rafael, these demands to applicant were assertive, persistent, repetitive & unrelenting, and taken in context of color of law very concerning. The common-counsel fact therefore warrants continued review and preservation of the invoices, engagement letters, billing narratives, forms, drafts, emails, and metadata showing where the strategy originated. The financial damages that can be caused by these devices is significant (including to municipal tax payer funds).
Source key
Key Document Principal use
M1 California Attorney General, Notice Regarding 80 Willow Road (Gov. Code § 65914.2), July 29, 2026, 10 pages.
Common counsel; post-hoc grounds; project-site definition; Builder's Remedy; Density Bonus; applicantpaid legal fees; indemnity.
M2 City of Menlo Park, AB 2011 Determination in Response to December 24, 2025 Resubmittal, January 22, 2026, 8 pages.
Repeated determinations; not-housing-development premise; plan calculations; continuing review.
M3 City of Menlo Park, Response to Challenged Conduct Letter, February 10, 2026, 9 pages.
H6 no-duty/courtesy architecture; CEQA fallback; four determinations; $799,951 consultant deposit.
ANALYTICAL COMPARISON - | MENLO PARK / N17 vs. SAN RAFAEL / RIVER LANDON Direct evidence, applicant-reported facts, and inference are separately identified. Page 6 of 6 Key Document Principal use
N1 Allen Matkins, Applicant Response to November 7, 2025 AB 2011 Determination / H6 notice, November 19, 2025, 3 pages.
Identification of new grounds, site/parcel shift, Builder's Remedy, Density Bonus, and stonewalling.
S1 Communications August 2025-July 2026 packet, including August 27 and October 6 determinations, October 22 counsel letter, March 24 email, April 2 H6 notice, and related correspondence.
San Rafael chronology, direct counsel involvement, fee/reimbursement demands, restart requirement, and project-site treatment.
S2 City of San Rafael, Response to Challenged Conduct Letter, July 1, 2026, with attachments, 122 pages.
H6 no-duty/courtesy architecture; threshold multifamily premise; alternative holdings; late explanations.
S3 Comparative Analysis: April 2, 2026 H6 Notice vs. July 1, 2026 San Rafael Response. Quotation methods, wrong plan sets, citation defects, concessions, and record-level techniques.
S4 Analysis of October 6, 2025 San Rafael Consistency Determination against allowable objective standards.
Standard-by-standard application, information requests, inapplicable entitlements, waivers, and project fragmentation.
A1 River Landon invoices and Summer 2025 / March-April 2026 indemnity materials. Applicant-reported details. These documents were not independently reproduced in the reviewed attachment set and should be appended before external use.
Routing; Outside Counsel OC, State Bar Complt Doherty 254523 Alleging collusion to Defeat State Laws, Monetary demands for proponent to pay for lawyer unlawful activities under color of law SBC file, Leads to downstream misreps to Court/Court time wasting
61 13Analysis of San Rafael formal response to applicant H6 notice 4/2/26 > 7/1/26
235–281 Coleman Drive SB 35 Project. Final administrative action.
Comparative Analysis: April 2, 2026 §65589.5(h)(6)(E) Notice vs. City of San Rafael July 1, 2026 Response to Challenged Conduct Letter, under the HAA.
Documents compared: (1) Cox, Castle & Nicholson LLP letter of April 2, 2026 with Exhibit A, Challenged Course of Conduct Table (25 pages). (2) City of San Rafael letter of July 1, 2026, signed by Micah Hinkle, Director of Community and Economic Development, with Attachment A, “Response to Exhibit A of Challenged Conduct Letter,” and Attachments B–E (122 pages total).
Part 1 — Methods of obfuscation: how the response is made to appear compliant The July 1 response is not, in the main, a document of false quotation. Our Exhibit A text is largely transcribed accurately. The document instead achieves the appearance of a complete, reasoned, good-faith reply through a consistent set of rhetorical and structural techniques. Each is identified per item in Column 5 of the table. The recurring methods are these:
A. Techniques applied to the standard itself
1. Partial-text objectivity — Quote the measurable fragment of a standard and drop the subjective operative words, then declare the remainder objective. At Item 2 the City defends “wall, fence, or screen” as objective terms while silently discarding “from view” — the criterion actually in dispute. At Item 18 it defends the objectivity of “3 feet” and “5 feet” when the disputed word is “should.” At Item 16 it defends the objectivity of “15 feet,” which was never contested. In each case what remains sounds unimpeachably objective precisely because the contested language has been removed from the quotation.
2. Retroactive re-specification — Announce the governing standard for the first time in the response, then judge the 2025 determinations against it. At Items 2 and 12 contested standards become “a yes-or-no question” for the first time on July 1, 2026. At Item 11 the City concedes its code does not define “low,” “medium” or “high density residential” and supplies density ranges in the letter. At Item 17 it announces that a footnote means the greater of two figures. Section 65913.4(a)(5) requires standards to be published and adopted before submission and knowable by applicant and official alike; a standard first written in a response letter cannot have governed the determination it defends.
3. Selective severance of disjunctive text — Where a code phrase offers alternatives, adopt the enforceable half as a “baseline” and demote the other to an “exception.” At Item 19, “The same or substantially similar mix of unit size” is reconstructed so that “the same” is a mandatory baseline and “substantially similar” an exception — enforcing the half the City can measure and discarding the half that would defeat the finding.
4. Quotation marks around paraphrase — Item 19 is the clearest instance: the August 27 letter presented two sentences in quotation marks with a pin cite to Resolution 14890. The July 1 response reproduces the actual text of the Resolution, which contains neither sentence, and then explains which phrases the City’s versions were “derived” from. Bolding source phrases inside a longer sentence makes reconstruction look like citation.
5. Element re-labelling — The same physical feature is given whichever name generates the needed result. At Item 4 the connecting screen becomes a “fence” to trigger SRMC 14.16.140, while elsewhere the same element is denied the status of an attachment that would make the project multifamily. At Item 2 a screen is said to satisfy 14.25.050; at Item 4 it is a fence subject to a different standard.
B. Techniques applied to the evidence
6. Hedge-then-harden — Lay down qualified observations, then collect them into an unqualified conclusion a few lines later. Item 4: “may be enclosed,” “appears,” “implying” → “plainly appears to propose fences.” Item 8: “Thus, it appears” → “directly contradicts what is actually depicted.” The certainty is manufactured by the summary sentence, not supplied by the evidence.
7. Uncertainty laundering — Report the City’s own inability to determine something as the applicant’s error. Item 7 is the sharpest example: the City writes that two parcels have “no information” on width and that one is measured diagonally so “the actual width is not clear,” then concludes our statement is “plainly contradicted.” Absence of data is presented as disproof.
8. Speculation as finding — Item 15 rests its conclusion on “it appears possible that other spaces are, too” — a hypothesis about undimensioned spaces, offered as the basis for a statutory inconsistency. This inverts §65913.4(c)(3), which asks whether substantial evidence would allow a reasonable person to conclude consistency.
9. Unfalsifiable objection — Item 13 objects to “an additional feature that would likely be included” in the height measurement, without naming the feature, locating it on a sheet, or stating the disputed dimension — and closes with “Maybe it’s 39ʹ10ʺ; maybe it’s taller.” Nothing can be submitted that answers this, and it can be re-raised against any resubmittal.
10. Definitional substitution — Item 8 silently equates the retained “natural state area” with installed “landscape area,” a ten-fold change in the governing figure, introduced by “Thus, it appears” rather than by any cited definition.
11. Double-track findings — Charge the item both ways so no submission can clear it. Item 8 holds simultaneously that the plans plainly show 25,362 sq ft of landscaping and that they “do not contain enough detail” to assess compliance. Both cannot be true, and either sustains the finding.
C. Techniques applied to our arguments
12. Column collapse and erased response fields — Our three-column Exhibit A was adopted as the skeleton of the City’s four-column table — which makes the transpositions visible. At Items 18, 22, 24 and 28 the “Challenged Conduct Letter states” column is left empty. At Item 18 our argument was folded into the City-document column and replaced by the City’s paraphrase, so a reader sees only the version the City chose to answer. At Item 11 four distinct arguments are flattened into one run-on paragraph and only the first is addressed. At Item 24 our waiver-delay allegation is relocated into Item 23’s column and answered in neither.
13. Truncate-then-plead-confusion — Item 5 quotes eight words, swallows roughly ten lines in an ellipsis, and then states that “It is unclear what the Challenged Conduct Letter means.” The unclarity is produced by the quotation and then attributed to the writer.
14. Substituted question — Answer a question adjacent to the one asked. Item 7 answers about Coleman Drive when we described the private street serving the units. Item 20 answers whether a geotechnical report was required when we said it had already been provided. Item 2 answers whether a wall exists when we asked what “from view” means.
15. Straw man and reductio — Item 26 attributes to us the position that “an SB 35 application can never be denied” and refutes that instead of addressing §65913.4(c)(1)(C). Item 18 replaces our charge that the City rewrote “should” as “requires” with a charge that we confused “mandatory” with “objective,” and refutes the substitute.
16. Quotation deployed for a proposition it does not support — Item 26 quotes our November 8, 2025 meeting note — “I was aware of those [alternative to SB 35] processes, and did not plan to resubmit under those processes” — as proof that the applicant would not revise under SB 35. The City’s own bracketed insertion identifies the scope it then disregards.
17. Burden inversion — Items 2 and 25 fault us for not pointing to portions of the application proving consistency. Section 65913.4(c)(3) forbids a conflict finding where the application contains substantial evidence; it does not create an applicant duty to re-cite. At Item 25 the assertion that we “do not cite any portion of the application” is refuted by our Exhibit A, which cites A.0.5, A.0.3, A2.2–A3.4 and A.0.2/A.0.3/A.0.8 — and by the City acting on those very citations at Item 14.
18. Refusal to engage — Item 19 closes with “baseless and warrants no further response.” Item 9 simply stops: the row carries the same furniture as every other — item number, quoted standard, our response, a City paragraph — but nothing in the City paragraph responds to the point. Apparent completeness substitutes for engagement.
D. Techniques applied to the record and the remedy
19. Concede-and-moot — Items 1 and 10 concede the legal point and then void it: the item is “moot” because the application “was properly denied on other grounds.” The denial is the very act the Notice challenges, and §65589.5(h)(6)(E) requires the City to cease the conduct or make findings — not to rely on the outcome of the conduct to excuse it. Item 1’s concession is additionally conditional: “were the Project’s application still pending,” the City would not enforce. Nothing of record is withdrawn.
20. “For the first time” framing — Items 10, 14 and 18 present long-standing objections as newly raised. This does two things at once: it makes the City appear immediately responsive, and it implies the applicant withheld the point. At Items 10 and 18 the framing is refuted by the City’s own row, which records the same objection in our October 1, 2025 letter.
21. Blame-shifted concession — Item 14 withdraws a finding while explaining the nine-month error as a property of the drawings — “densely packed with information,” “a notation in small font.” Item 25 places the admission that the City “inadvertently missed something” three times inside a parenthesis within a sentence concluding that “Applicant is solely responsible for any delay.”
22. Reclassification to strip legal effect — Demands are retitled “courtesy comments” (Items 20, 21) and findings retitled things done “as a courtesy” (Item 22), which converts acts into favors and removes them from review — while they remain inside statutory (c)(1) determinations, contribute to the 60 and 46 inconsistency counts, and are carried into the September 28 and December 3, 2025 denials.
23. Master-key premise — The single holding that the Project is not a “multifamily housing development” disposes of Items 5, 6, 21, 26 and 28 outright, conditions Items 11 and 22, and is used in footnote 4 to dispose of CalHDF’s comment letter. Where the master key is used, no independent analysis of the item is offered.
24. Alternative-holdings stacking — Offer two or more independent disposals so that refuting any one leaves the item closed, and develop none. Item 21: it was only a courtesy, and SB 35 does not apply. Item 28: the case is inapplicable, and in any event we complied.
25. Deferral chain to nowhere — Item 23 responds “See Item 24 below.” Item 24 responds “See Section I.C of the Response to Challenged Conduct Letter.” There is no Section I.C. The density-bonus allegations therefore appear to be answered twice and are answered not at all. More broadly, 25 of the 29 responses open with “See Section I.A / I.B / I.C,” none of which exists — the letter’s sections are I (Introduction, no subsections), II, III (A and B) and IV.
26. Non-denial denial and inverted reading — Item 29 states the City is “unaware of having made such statement,” confining its search to written processing documents when the allegation concerns an oral statement, then supplies the same meaning itself in the next sentence. It then reads our allegation of siting bias as a comment that “appears to acknowledge the City’s recent housing-related successes” — converting an accusation into a compliment that needs no answer — and meets an AFFH distributional argument with a citywide unit total.
Part 2 — Cross-cutting findings
1. The wrong plan set is used to defend the determination under challenge. The City’s own letter states the SB 35 application was deemed submitted as a matter of law on June 30, 2025, and that the August 27, 2025 inconsistency determination issued 58 days later under §65913.4(c)(1)(A). Yet in eleven rows — Items 3, 4, 7, 8, 12, 13, 15, 16, 17, 18 and 19 — the City defends the August 27, 2025 determination using the September 6, 2025 Alternative Project plan set. Those sheets did not exist when that determination was written. Item 4 is the clearest example: our statement that no fences were proposed is answered entirely from Sheet A.0.7 of the September 6 set, and never against the operative June 30, 2025 submittal at all.
2. Twenty-five of the twenty-nine responses cross-reference sections that do not exist. The rows open with “See Section I.A,” “See Section I.B,” or “See Section I.C of Response to Challenged Conduct Letter.” The Response letter has no such sections; the references appear to have been intended for III.A.1, III.A.2 and III.A.3. At Items 23 and 24 this is not cosmetic — the density-bonus allegations are answered only by a cross-reference chain terminating in a non-existent Section I.C.
3. Two date errors on the face of the document. Items 12 and 13 both conclude by reference to “the plans submitted on September 6, 2026.” That date post-dates the October 6, 2025 determination those sentences describe, and post-dates the July 1, 2026 letter itself. Item 14, addressing the same plan set, uses 2025.
4. A citation to the wrong document. At Item 19 the City attributes our October 1, 2025 letter to “(October 6, 2025 Inconsistency Determination, p. 51.)”
5. Three findings are conceded — and two are then declared moot by the City’s own denial. At Item 1 the City accepts that “adequate ingress and egress” is not an objective standard. At Item 10 it accepts that the subdivision utilities standard does not apply. At Item 14 it accepts that the 8% gradient was on the plans all along and withdraws the finding. Items 1 and 10 are then declared moot. Conduct that the City itself abandons cannot have been “necessary” within the meaning of §(h)(6)(E)(iv)(I).
6. The City itself lists ten items decided on “insufficient information.” At Item 25: “As explained in the City’s responses to Items 2, 4, 7, 8, 12, 13, 15, 16, 18, and 19 above, the application lacks enough information …” Section 65913.4(c)(3) provides that a local government “shall not determine that a development … is in conflict with the objective planning standards on the basis that application materials are not included, if the application contains substantial evidence.” The City’s own enumeration is the clearest support in the record for the Notice’s central allegation.
Part 3 — How to read the table
Column 1 reproduces what our April 2, 2026 Notice actually says, separating the City document quoted from our response to it. Column 2 sets out how the July 1 table reproduces our text and what the City’s response says. Column 3 identifies the difference between the two. Column 4 assesses whether the difference is misquotation, use of the wrong record, non-response, or something else. Column 5 — shaded — names the technique by which the response is made to appear compliant, keyed to the numbered methods in Part 1. Column 6 assesses whether the row supplies the lawful way forward that §65589.5(h)(6)(E)(iv)(II) requires. Shaded item numbers mark rows with a material defect.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
Applying non-objective standards to development
1 City document quoted:
“Refuse collection areas shall be
…located in areas convenient to users
and collectors. There shall be adequate
ingress and egress to all utilities.”
Our response:
“These are non-objective standards.”
Reproduces both columns verbatim.
Accurate transcription.
Response: recites SRMC 14.25.050; Aug
27, 2025 said application “did not
contain enough information”; recites
Oct 1, 2025 letter p.36 and Oct 6, 2025
re-assertion. Then concedes 40 Main
Street holds “adequate access/egress”
subjective and unenforceable — “The
City thanks Applicant for bringing this
case to the City’s attention.” Concludes:
“Were the Project’s application still
pending, the City would not seek to
enforce this standard. Since the Project
application was properly denied on
other grounds … this comment is moot.”
No transcription difference.
But we raised a legal
objection — the standard is
not objective. The City
answers with procedural
history, then concedes and
declares the point moot.
Nothing in our Notice raised
or conceded mootness. See
also analysis of the copied
non fact driven
impermissible specific legal
architecture in Willow Park,
Menlo Park.
CONCESSION → MOOTED
Quotation accurate; the defect is
disposition, not transcription.
The concession is material: the City
admits it applied a non-objective
standard across two determinations.
That admission is the §(h)(6)(E)(i)
conduct alleged.
Mooting is circular — the City relies on
its own denial to excuse the conduct
the Notice says produced the denial.
The concession is conditional (“were
the application still pending”); the Aug
27 and Oct 6 findings stand of record
and were never withdrawn.
40 Main Street was decided in 2020
and was put to the City on Oct 1, 2025.
Concede-and-moot — yields the
legal point but voids the remedy by
invoking the City’s own denial.
Conditional concession — “were the
application still pending” concedes
prospectively only; nothing of record
is withdrawn.
Gracious framing — “The City thanks
Applicant for bringing this case to the
City’s attention” presents a ninemonth-old, already-briefed authority as newly supplied, casting the City as
responsive.
NO.
Concedes error, gives no
instruction, declares the
item moot.
2 City document quoted:
“Walls, etc. shall be used to screen
parking and loading areas from view”
Our response:
“This is a non-objective standard. What
percentage of view shall be shielded,
and from what angles, from how far
upslope?”
Reproduces both columns verbatim.
Response: SRMC 14.25.050; insufficient
information; Oct 1 p.36; Oct 6 reassertion. Then reformulates: “To the extent that SRMC Section 14.25.050
requires that a project include a wall,
fence, or screen … the inquiry is a yesor-no question: ‘do the plans depict a wall, fence, or screen?’ Wall, fence, and
screen are each objective terms.”
Concludes materials insufficient and
that we did not “point to any portion of
the project application that would
constitute substantial evidence.”
Our objection is to the
words “from view” — the
visibility criterion.
The City answers a different
question — does a wall
physically exist — by
severing “from view” from
the standard it applied.
The three questions we
posed (percentage, angle,
distance upslope) are not
addressed at all.
ANSWERS A DIFFERENT QUESTION
The yes/no reformulation appears for
the first time on July 1, 2026. It is not
the standard applied on Aug 27 or Oct
6, 2025.
§65913.4(a)(5) confines review to
standards published and adopted
before submission. A standard redefined in a response letter cannot retroactively validate the
determination it defends.
Internally inconsistent with Item 4:
here a screen satisfies 14.25.050; at
Item 4 the same element becomes a
“fence” triggering 14.16.140.
“Point to any portion … that would
constitute substantial evidence”
inverts §65913.4(c)(3).
Partial-text objectivity — quotes the
measurable nouns — wall, fence,
screen — and silently drops “from
view,” the operative subjective
criterion. What is left sounds
objective because the subjective part
has been removed.
Substituted question — converts
“screened from view” into “does a
wall exist.”
Retroactive re-specification — the
yes/no standard is announced in the
response, not in the determination it
defends.
Burden inversion — demands the
applicant prove consistency,
reversing (c)(3).
NO.
Never states what
depiction would suffice —
plan note, elevation, sightline study, dimension.
Sending documentation / stating inconsistency by alleging standards are applicable that have no connection to the development submittal 3 City document quoted: Reproduces both columns verbatim. The City expressly agrees with our factual statement
CONCEDES PREMISE, KEEPS FINDING
WRONG PLAN SET
Re-characterized standard — a
permission provision is silently
converted into a mandate, so
NO.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
“Structures may encroach into a
required yard with a compensating
increase subject to approval by the
hearing body”
Our response:
“The applicant did not request any such
encroachment”
Response: quotes SRMC 14.12.030.B in
full; recites R10 minimums (10ʹ side, 10ʹ
rear, 20ʹ front) against proposed ~4ʹ
side, ~2.5ʹ rear, 2.5ʹ–9ʹ11ʺ front; “These
facts necessarily mean that the Project
also inconsistent with Section
14.12.030.B, even if the Project were to
receive the permissible encroachment.”
Adds: “Moreover, as the Challenged
Conduct letter notes, Applicant never
requested such encroachment in the
first place.” Then cites Sept 6, 2025
materials (Sheet A.0.2), Oct 1 p.16, Oct 6
re-assertion.
— no encroachment was
requested — and keeps the
inconsistency anyway.
It does so by re-casting
14.12.030.B from a
permission provision into a
setback-magnitude
provision.
If no encroachment is sought,
14.12.030.B — which governs when an
encroachment may be allowed — has
no application. The operative setback
standard is 14.04.030, separately cited
at Item 17.
Counting the same setback facts under
two code sections inflates the 60 / 46
inconsistency totals.
The Aug 27, 2025 determination is
defended with Sept 6, 2025 plans that
did not exist when it was written.
agreeing with us costs the City
nothing.
Double-counting — one set of
setback facts is charged under two
code sections, inflating the
inconsistency count and the
apparent gulf between project and
code.
Concession as ornament — “as the
Challenged Conduct letter notes”
signals responsiveness while the
finding survives intact.
Does not say whether
anything remains for the
applicant to do if
14.12.030.B is
inapplicable.
4 City document quoted:
“Fences located within the front and
streetside setbacks may be 4 feet tall
etc. The plans do not contain enough
detail for the city to determine whether
the project complies with the fence
standards at this time”
Our response:
“No fences have been proposed”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC
14.16.140, insufficient information.
Then: “On September 6, 2025, Applicant
submitted revised application materials
that depict an area titled ‘enclosed trash
& recycling area.’ (Sheet A.0.7.) It
appears such area may be enclosed by a
fence. Likewise, Sheet A.0.7 states that
‘lot coverage’ excludes fences, implying
that the proposed Project includes
fences.” Recites Oct 1 p.32 and Oct 6.
Concludes: “the project application
plainly appears to propose fences,
which Applicant argued join the units
together and thereby make the project
a ‘multifamily’ project.”
Our statement is a flat
factual assertion about the
operative submittal.
The City never engages the
operative June 30, 2025
submittal. Its entire answer
is built from Sept 6, 2025
Alternative Project sheets.
It also converts the
connecting screen element
into a “fence,” which is not
what we said and not what
the plans show.
WRONG PLAN SET — LEAD EXAMPLE
(a) The determination defended is Aug
27, 2025, made against the application
deemed submitted June 30, 2025.
Sheet A.0.7 of the Sept 6 set did not
exist on Aug 27.
(b) The evidence is inferential and
hedged throughout — “may be
enclosed,” “appears,” “implying.” A
boilerplate lot-coverage note listing
categories excluded from coverage is
not evidence that any listed category
exists in the project.
(c) The screen is re-labelled a fence.
SRMC 14.16.140 governs fences in
front and streetside setbacks; the
element we identified is a screen/wall
relevant to attachment. The same
element cannot be an attachment for
one purpose and not the other.
(d) “Plainly appears” characterizes the
City’s own hedged inference as plain.
Hedge-then-harden — three hedges
— “may be,” “appears,” “implying”
— are laid down and then collected
into “plainly appears to propose
fences.” The certainty is created by
the summary, not by the evidence.
Wrong record — the operative June
30, 2025 set is never examined; the
answer is built from a later set.
Element re-labelling — the screen
becomes a fence when the City
needs an inconsistency, and stops
being an attachment when the City
needs the project not to be
multifamily.
Negative-definition inference — a
note saying fences don’t count
toward lot coverage is read as proof
that fences exist.
NO.
Does not say what would
resolve it — a note that no
fences are proposed, a
fence detail, or a
dimensioned elevation.
Sending documentation / stating inconsistency that improperly relies on local standards when State standards have preempted those local standards 5 City document quoted:
Long passage: the City equates housing
types to single-family/multifamily, to
zoning classification, to
low/medium/high density; claims the
development must comply with
medium-density / multifamily standards
requiring a minimum of 3 attached
units; “It provides no explanation of
how that would be permitted in a low
density residential zone nor how it
would be permitted in a single family
Column 2 reproduced. But the response
opens: “It is unclear what the
Challenged Conduct Letter means by
‘the city equates all of these together …’
or precisely how Applicant alleges the
City has acted improperly in this
regard.”
Then: the argument “relies on the
assumption that SB 35 preempts the
City’s action. As explained above, the
Project does not qualify for processing
under SB 35. Therefore, SB 35 does not
preempt any City action.”
The City truncates our
sentence with an ellipsis
after eight words, then rests
on the unclarity of the
truncated fragment.
Our passage runs roughly
ten lines and states a
specific consequence the
City does not repeat: that it
demands compliance with
medium-density / 3-
attached-unit standards in a
low-density single-family
TRUNCATION → MANUFACTURED
AMBIGUITY
Not a misquotation — a truncation
that produces the very unclarity the
City then relies on to avoid answering.
The internal contradiction we
identified is never addressed: how a
development the City says must satisfy
multifamily standards could lawfully be
built in a zone where its own code
does not permit that use.
Truncate-then-plead-confusion —
eight words are quoted, an ellipsis
swallows the rest, and the resulting
fragment is declared unintelligible.
The confusion is produced by the
quotation, then attributed to the
writer.
Master-key premise — the notmultifamily holding is applied to close the item without engaging its
substance.
NO.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
zone such as the subject lots (such is not
permitted under city code)”
Our response:
“State law preempts this in SB 35 which
authorizes multifamily housing on any
residential land. SB 35 provides for any
qualifying multifamily development of 2
or more units on any residentially zoned
land.”
zone without explaining
how that is permissible
under its own code which it
is referencing.
The substantive answer is wholly
derivative of the not-multifamily
premise.
6 City document quoted:
“Developments must provide two
covered parking spaces per unit”
Our response:
“No covered parking is required under
State law”
Reproduces both columns verbatim.
Entire response: “As explained above,
the Project does not qualify for
processing under SB 35. Therefore, SB
35 does not preempt the applicable
local parking requirements.”
No transcription difference.
One sentence, wholly
derivative of the multifamily
premise.
SINGLE-PREMISE DISPOSAL
Does not address §65913.4(d)(2) (no
more than one space per unit) or (d)(1)
(no parking requirement within ½ mile
of transit), nor whether the covered
requirement is severable from the
count.
Sits against Item 7, where the City
simultaneously enforces a requirement
for two additional on-site spaces.
Master-key premise — one sentence
disposes of a substantive preemption
argument without touching
§65913.4(d).
Selective preemption — SB 35 is
treated as inapplicable when it would
limit the City, while local parking
rules are enforced throughout.
NO.
Sending documentation / stating inconsistency by purporting a standard is not met when the development contains / includes nothing to which that standard applies 7 City document quoted:
“Additionally, on streets less than
twenty-six feet, a minimum of two
additional on-site parking spaces must
be provided”
Our response:
“The street is 26ʹ wide, is clearly such
and is clearly marked as such”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC
14.12.030; insufficient information.
Then, from Sept 6, 2025 materials:
Coleman Drive “approximately 18 feet
wide in front of two parcels (-47 and -
46); varies between 17 feet and 28 feet
in front of one parcel (-45); provides no
information on the width … in front of
two parcels (-49 and -48), and measures
the width … diagonally in front of one
parcel such that the actual width is not
clear (-44). (Sheet A.0.1.)” Notes “Sheet
A.0.2 indicates that the private driveway
serving the proposed units from
Coleman Drive (the street) is 26 feet
wide.” Concludes our contention “is
plainly contradicted by the plans
submitted on September 6, 2025.”
Substitution of the subject.
Our statement concerns the
street serving the units —
the 26-foot private street.
The City answers about
Coleman Drive, the public
frontage, and then declares
our statement contradicted.
WRONG PLAN SET + SUBJECT SWITCHED
(a) Sept 6, 2025 sheets used to defend
an Aug 27, 2025 determination.
(b) The City’s own recitation concedes
Sheet A.0.2 shows the private
driveway at 26 feet — the street the
units front. It never explains why the
standard measures Coleman Drive
instead.
(c) “Plainly contradicted” overstates
the City’s own description: two parcels
have no width information and one is
measured diagonally so “the actual
width is not clear.” That is absence of
data, not contradiction.
Substituted subject — we describe
the private street serving the units;
the City measures the public
frontage, then reports a mismatch as
our error.
Uncertainty laundering — the City’s
own words — “no information,” “the
actual width is not clear” — are
converted in the next sentence into
“plainly contradicted.” Missing data
is reported as disproof.
Buried concession — the sentence
confirming the 26-foot private
driveway sits mid-paragraph and is
never carried into the conclusion.
PARTIAL.
Identifies one curable item
— exact location of spaces
relative to units — but
does not state it as an
instruction.
8 City document quoted:
“Where the proposed landscape area is
equal to or greater than 2,500 sq ft”
Our response:
“Sheet A.0.5. The landscaping is less
than 2,500 sq.ft.”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC 14.16.370
/ Gov. Code 65595(c); insufficient
information. From Sept 6, 2025 plans:
Sheet A.0.6 shows a “natural state area”
of 25,362 sq ft; A.0.5 shows trees in
almost all of it; “Thus, it appears that
the Project involves approximately
25,362 feet of landscaped area.” Our
statement “directly contradicts what is
The City equates retained
“natural state area” with
installed “landscape area.”
We did not, and the
standard does not on its
face.
WRONG PLAN SET + UNSUPPORTED
EQUATION
SELF-CONTRADICTORY CONCLUSION
(a) Sept 6, 2025 plans used against an
Aug 27, 2025 determination.
(b) The equation of undisturbed
natural area with landscape area is a
substantive assumption stated as
observation (“Thus, it appears”).
Definitional substitution — “natural
state area” is silently equated with
“landscape area,” a ten-fold change
in the governing number, introduced
by “Thus, it appears” rather than by
any cited definition.
Hedge-then-harden — an
assumption flagged “it appears”
becomes, two sentences later, a
NO.
Implies a landscape
documentation package
would resolve it but never
says so or specifies
contents.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
actually depicted on the plans.” Oct 1
p.34; Oct 6 re-assertion. Closes: “since
the plans do not contain enough detail
to determine whether the Project
complies with this standard, it was
proper for the City to determine that
the Project is inconsistent.”
Water-efficient landscape
requirements are generally keyed to
new or rehabilitated landscape area.
No definition is cited to support the
equation.
(c) The row concludes on insufficiency
after asserting the opposite. The plans
cannot both “plainly” show 25,362 sq
ft and “not contain enough detail.”
“direct contradiction” by the
applicant.
Double-track finding — the item is
charged both ways — the plans show
too much landscaping, and the plans
don’t show enough detail — so no
answer can clear it.
9 City document quoted:
“Section requires driveways serving
residential uses with less than 6 vehicle
parking spaces to be a min. of 10 feet
wide”
Our response:
“The driveway serves 39 parking spaces.
The driveway (private street) is 26ʹ, and
wider in parts”
Reproduces both columns verbatim.
Response recites only that Aug 27, 2025
identified SRMC 14.18.140(a) and that
the application “did not contain enough
information.”
The row then stops. No review of any
later submittal, no reference to Oct 1
or Oct 6, no conclusion, and no
engagement with our point.
Our response is reproduced
and then never answered.
NO RESPONSE AT ALL
Our point is that the standard applies
by its terms only to driveways serving
fewer than six spaces; this driveway
serves 39. The standard is facially
inapplicable — the identical defect the
City conceded at Item 10.
§65589.5(h)(6)(E)(iii) requires the City
to consider and respond to objections;
this row does neither.
The status of the item after July 1 is
undeterminable from the document.
Silent non-answer — the row carries
the same visual furniture as every
other — item number, quoted
standard, our response, a City
paragraph — so it reads as answered.
Only on close reading does it emerge
that nothing responds to the point.
Recitation as response — restating
what the Aug 27 letter said is
presented as engagement with the
objection to what the Aug 27 letter
said.
NO.
Item status unknown.
10 City document quoted:
“No subdivision of land into two (2) or
more lots or parcels for the purpose of
development shall be approved unless it
is determined that the following utilities
and services can be provided”
Our response:
“No subdivision of land into two or
more lots is being proposed”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC
15.06.020. Oct 1 pp.58–59 argued
unenforceable; “Applicant’s legal
argument … was not clearly supported
by law.” Oct 6 re-assertion. Then: “The
Challenged Conduct Letter points out
for the first time that this standard only
applies when a project proposes
subdivision of land into two or more
parcels. Having considered this
additional input, the City has
determined that this standard does not
apply to the Project.” Then moot
because denied.
“For the first time” is
contradicted by the City’s
own row.
The same objection appears
in column 2 of the City’s
own table, and the City
records two paragraphs
earlier that we raised it in
the Oct 1, 2025 letter at
pp.58–59.
CONCESSION → MOOTED
“FOR THE FIRST TIME” INACCURATE
Second admission that an inapplicable
standard was applied and then reapplied across two determinations.
Same circular mooting as Item 1: the
denial excuses the conduct the Notice
says produced the denial.
“For the first time” framing — a
long-standing objection is presented
as newly raised. This does two things
at once: it makes the City look
immediately responsive, and it
implies the applicant withheld the
point until now.
Concede-and-moot — the
concession is neutralized by the
City’s own denial.
Dismissive characterization — our
earlier identical objection is disposed
of as “not clearly supported by law”
— then adopted.
NO.
11 City document quoted:
Table 1.4 Objective Design Standards
adopted March 2024, with the ODS
applicability sentence and the SRMC
14.03.030 definitions of “residential,
multifamily” (medium/high density, 3+
attached units) and “residential, singlefamily” (low density, one primary unit).
Our response — four distinct points:
(i) “The development is clearly not in
either of those categories.”
Column 2 reproduced. Our four
responses are flattened into a single
run-on paragraph.
Response opens: “The Objective Design
Standards apply to all residential
development projects in the City. The
Project is a residential development
project. Therefore, the Objective Design
Standards apply to the Project.”
Then quotes the SRMC definitions;
concedes “The San Rafael Municipal
Code does not define the terms
‘medium density residential,’ ‘high
Flattening our four points
into one paragraph lets the
City answer only the first.
Point (ii) — vesting — is
answered not on its merits
but by relocating the
submittal date to
September 6, 2025.
THE MOST CONSEQUENTIAL MOVE IN
THE TABLE
(a) The opening syllogism is broader
than the cited authority. ODS by its
own first sentence applies to four
defined categories, not to “all
residential development projects.”
(b) The City concedes its code does not
define the density terms and supplies
an interpretation for the first time in
this letter. A non-published, nonadopted interpretation cannot be a standard “published and adopted by
ordinance or resolution … before
Column collapse — four separate
arguments are merged into one
paragraph; the City answers the first
and the other three disappear.
Broadened premise — “applies to all
residential development projects”
replaces the ODS text, which lists
four defined categories. The
syllogism is valid only because the
premise was widened.
Retroactive re-specification — the
density-range interpretation is
supplied in this letter, filling a gap
NO.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
(ii) “Further, the development vested
prior to these standards being created”
(iii) “The subject lots are not in this
zoning.”
(iv) “This is not applicable to the
development”
density residential,’ or ‘low density
residential’”; states “The City interprets
those terms to mean the density ranges
permitted in R / MR / HR districts” (low
0–8.7 du/ac; medium 8.7–21.78; high up
to 43.56).
Closes: “The Project submitted on
September 6, 2025, after the Objective
Design Standards were adopted,
proposes 14 units on 1.427 acres at a
density of 9.8du/ac. Accordingly, the
Project is ‘medium-density.’”
submission” under §65913.4(a)(5) and
(d)(1).
(c) The vesting date under
§65913.4(a)(5) is the earlier of
application submittal or notice of
intent — May 15, 2023. The City
concedes exactly this rule at Item 22.
(d) At 9.8 du/ac the City calls the
Project “medium-density” — its own
density definition of “residential,
multifamily” — while holding
elsewhere that the Project is not a
multifamily housing development.
the City concedes exists in its own
code.
Date relocation — analyzing the Sept
6, 2025 submittal produces a date
after the March 2024 ODS adoption,
disposing of the vesting argument
without ever addressing it.
Selective definition — the density
figure that makes the Project
“medium-density” is the same figure
that would make it multifamily; only
the first use is adopted.
Sending documentation / stating inconsistency by alleging that planning data is not in the development submittal when it is 12 City document quoted:
“Plans do not show screening of parking
from the street”
Our response:
“The plans clearly show screening of
parking from the street.”
Reproduces both columns verbatim.
Response: Aug 27 cited General Plan
Policy CDP-4.9. From Sept 6, 2025 plans:
A.0.3 shows “Parking 1” screened by
“Cherry Laurel Parking Screening”;
“Parking 2,” “3,” “4,” “5” “do not appear
to be screened”; “Given the steep slope
of the hill, it is not clear from the plans
whether such parking areas will be
visible from Coleman Drive or not; the
required landscaped screening is
missing.” Oct 1 p.12; City says the
inquiry is a yes/no question and
objective. Closes: “Because the plans
submitted on September 6, 2026 do not
depict landscaped screening for Parking
areas 2-5 …”
Partial concession —
Parking 1 is screened —
appears nowhere in the
conclusion. The City had
said the plans “did not show
screening” at all.
WRONG PLAN SET
DATE ERROR ON THE FACE OF THE
DOCUMENT
(a) Sept 6, 2025 plans used against an
Aug 27, 2025 determination.
(b) “September 6, 2026” — a date
after the July 1, 2026 letter itself. The
same error recurs at Item 13.
(c) A General Plan policy is applied as
an objective planning standard.
(d) The City’s own sentence concedes
the visibility criterion is indeterminate
— “it is not clear … whether such
parking areas will be visible.” That is
the non-objectivity we asserted.
Silent partial concession — the City
confirms Parking 1 is screened —
contradicting its own “plans do not
show screening” — but never says
so, and the conclusion reverts to a
global finding.
Retroactive re-specification — the
yes/no reformulation appears here
for the first time.
Admitted indeterminacy reused as a
finding — “it is not clear whether
such parking areas will be visible” is
the applicant’s objection, restated by
the City and then used against the
applicant.
MARGINAL.
Implies screening at
Parking 2–5 but gives no
depth, species, height or
opacity.
13 City document quoted:
“Insufficient information has been
provided in plans to verify the proposed
height”
Our response:
“Heights are clearly shown on A2.2 to
A3.4 - 15 sheets comprehensively
showing the height as defined by
municipal code for every building.”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC 14.04.030
(hillside height measured from existing
grade to uppermost point). From Sept 6,
2025 plans: elevations “include what
appear to be height measurements, but
such measurements do not appear to
use the method of measurement
required.” On A.2.2 a “39ʹ-10ʺ”
dimension “does not include what
appears to be an additional feature that
would likely be included … Maybe it’s
39ʹ10ʺ; maybe it’s taller.” On A.2.3,
“Maybe it’s 35ʹ0ʺ; maybe it’s 48ʹ5ʺ;
maybe it’s taller.” Closes on “plans
submitted on September 6, 2026.”
We say heights are shown
per code across 15 sheets.
The City says they appear to
be shown but may not use
the code method — and
never identifies what is
missing.
WRONG PLAN SET
SECOND “SEPTEMBER 6, 2026” DATE
ERROR
(a) The “maybe / maybe / maybe”
formulation is an express statement of
residual doubt. §65913.4(c)(3) asks
whether substantial evidence would
allow a reasonable person to conclude
consistency — not whether all doubt is
eliminated.
(b) Fifteen dimensioned elevation
sheets are on their face substantial
evidence. The objection turns on an
unnamed “additional feature that
would likely be included,” without
identifying the feature, its sheet
location, or the dimension disputed.
Unfalsifiable objection — “an
additional feature that would likely
be included” is never named or
located, so it cannot be answered.
The item can be re-raised against any
resubmittal.
Doubt as disqualification — “Maybe
it’s 39ʹ10ʺ; maybe it’s taller”
substitutes a no-residual-doubt test
for the statutory reasonable-person
test.
Volume acknowledged, weight
withheld — the City accepts that
fifteen dimensioned sheets exist and
treats their existence as immaterial
without explaining why.
NO.
No statement of what
would resolve it.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
(c) The City never states what
measurement convention it wants
shown.
14 City document quoted:
“New streets and driveway grades shall
not exceed 18 per cent. The projects
plans do not appear to indicate the
proposed slope”
Our response:
“A.0.2 site plan very clearly shows the
gradient of the street at 8%, as do A.0.3,
A.0.8.”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC
14.12.030; insufficient information. Oct
1 p.31 argued not objective; “The
October 1, 2025 letter did not point to
any portion of the development
application that contained the required
information.” Oct 6 re-assertion; “The
City acted in good faith.” Then: “The
Challenged Conduct Letter points for
the first time to pages A.0.2, A.0.3, and
A.0.8 … the City notes that each of
sheets A.0.2, A.0.3, and A.0.8, which are
densely packed with information,
contain a notation in small font that the
private driveway will have an 8%
gradient, and no longer considers this
item to be an inconsistency.”
Third concession — and the
only one actually withdrawn
rather than declared moot.
CONCESSION — WITHDRAWN
(a) The information was on the plans
throughout. The Aug 27 finding of
insufficient information was wrong
when made; the Oct 6 re-assertion was
wrong again.
(b) “Densely packed with information
… in small font” attributes the City’s
review failure to the drawings. Nothing
in §65913.4 conditions the substantialevidence test on font size. (c) Directly supports the Item 25 thesis.
Blame-shifted concession — the City
withdraws the finding while
explaining the error as a property of
the drawings — “densely packed,”
“small font” — rather than of the
review.
“For the first time” framing — the
plan sheets were always in the
submittal; presenting them as newly
pointed out converts a nine-month
City error into a recent applicant
disclosure.
Good-faith assertion adjacent to
admitted error — “The City acted in
good faith” sits in the same
paragraph as the withdrawal.
RESOLVED —
15 City document quoted:
“The cover page notes that all spaces
are 9 by 19 feet, the application does
not contain information to determine
where all parking spaces (sic)”
Our response:
“Parking is shown on the parking sheet
A.0.3 and is clearly shown as 19ʹ x 9ʹ”
Reproduces both columns verbatim.
Response: Aug 27 cited SRMC
14.18.100. From Sept 6, 2025 plans:
A.0.3 labels spaces 14 and 30 with 19ʹ
and 9ʹ; “Parking space 33 appears
nonexistent. Parking space 34 appears
to be labeled as only 8ʹ7ʺ wide. No
other parking spaces are labelled with
dimensions.” Closes: “without
dimensional information about other
spaces, it appears possible that other
spaces are, too.”
We rely on the cover-page
typical-dimension
convention. The City
requires per-space
dimensioning without
saying so.
WRONG PLAN SET
SPECULATION AS BASIS FOR FINDING
(a) Sept 6, 2025 plans against an Aug
27, 2025 determination.
(b) “It appears possible that other
spaces are, too” is speculation offered
as the basis for a statutory
inconsistency finding — the inverse of
the (c)(3) test.
(c) A typical-dimension note plus a
scaled plan is ordinary architectural
convention and is substantial evidence.
(d) Space 34 at 8ʹ7ʺ is the one concrete
verifiable objection in the row — and is
not what the conclusion rests on.
Speculation as finding — “it appears
possible that other spaces are, too”
— a hypothesis about
undimensioned spaces — carries the
conclusion.
Convention disregarded without
explanation — the cover-page
typical dimension is treated as
absent rather than as evidence, with
no reason given.
Strongest point left unused — the
one measurable objection (space 34
at 8ʹ7ʺ) is stated but not relied on, so
the finding survives even if that
space is corrected.
NEARLY.
“Label each space” is
implicit but never stated
as an instruction.
16 City document quoted:
“Lighting for parking areas must be
mounted at maximum of 15 feet”
Our response:
“A.0.3 Parking & circulation plan. The
plans state ‘Parking lighting is mounted
at 14ʹ from floor’”
Reproduces both columns verbatim.
Response: Aug 27 cited Hillside Design
Guidelines §IV.A9. From Sept 6, 2025
plans, three notations — Parking 1 “3ʹ
from floor”; Parking 3 “14ʹ from floor”;
Parking 4 “Parking at 14ʹ from floor” —
and no information for Parking 2 or 5.
On Oct 1 p.41: “‘15 feet’ is uniformly
verifiable by reference to an external
criterion (e.g., a tape measure), and is a
quintessential example of objectivity.”
Oct 6 re-assertion.
The City’s own recitation
confirms the compliant
notations we cited, and
narrows the objection to
Parking 2 and 5 — without
ever saying the balance is
resolved.
WRONG PLAN SET — BUT A GENUINE
GAP
(a) Sept 6, 2025 plans against an Aug
27, 2025 determination.
(b) This is a real, specific, curable gap
and is the model of what
§(h)(6)(E)(iv)(II) requires — yet it is
buried in narrative rather than stated
as an instruction, and the row still ends
in a global inconsistency finding.
(c) The tape-measure point answers a
question about the number 15 while
our objection concerns the
Silent partial concession — three of
five parking areas are confirmed
compliant in the City’s own
recitation; the conclusion does not
reflect it.
Partial-text objectivity — the City
defends the objectivity of “15 feet,”
which was never in dispute, rather
than the enforceability of a
Guidelines provision, which was.
Instruction buried in narrative — the
one genuinely curable item in the
table is stated as a criticism rather
than as a step.
CLOSEST IN THE TABLE —
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
enforceability of a Guidelines
provision.
Sending documentation that misrepresents city municipal code 17 City document quoted:
“Side yard setback to be 10 feet and
front yard setback to be 20 feet.”
Our response:
“In fact municipal code defines the yard
requirement as the average on the
block. (14.04.030)”
Reproduces both columns verbatim.
Response: Aug 27 recited R10
minimums against proposed setbacks;
Sept 6 plans did not revise them; Oct 1
p.15 cited the footnote exception. Then:
“Applicant’s reading of Footnote D (and
Footnote A) assumes that the required
setback is the lesser of 10 (side) / 20
(front) feet and the average setback on
the block. However, the City interprets
the code to require a setback of the
greater of 10 (side) / 20 (front) feet and
the average setback on the block.”
The dispute is squarely
joined — lesser vs greater
— but the City supplies no
textual analysis, no history,
and no instance of prior
application of its reading.
BARE ASSERTION OF INTERPRETIVE
PREFERENCE
Where the same footnote yields two
opposed readings and the City’s is
announced for the first time in a
response letter, the standard is not
“available and knowable by both the
development applicant … and the
public official before submittal” — the
City’s own §65913.4(a)(5) test.
The City never states the block-average
figure. On its own reading the
operative number has still not been
disclosed.
Interpretation by assertion — “the
City interprets” is offered in place of
textual analysis, and the reading that
resolves against the applicant is
adopted without support.
Framing the applicant as assuming
— our reading is described as an
assumption; the City’s equally
unsupported reading is described as
interpretation.
Operative figure withheld — even
on the City’s own reading, the blockaverage number governing the design is never computed or
disclosed, so the standard cannot be
met.
NO.
The applicant cannot
design to a number the
City has neither computed
nor published.
18 City document quoted:
“Hillside Design Guidelines state Fences
and walls over 3 feet in height that face
public streets SHOULD (not shall)”
Our response:
“Definitions in Hillside guidelines –
SHOULD (not shall) and where SHOULD
is used it states are not mandatory. City
rewrites this code in its consistency
analysis stating the word is ‘requires’.
City misstates its own code”
Merges our column-2 and column-3
text into column 2 and leaves the
“Challenged Conduct Letter states”
column EMPTY.
Response: Aug 27 cited Guidelines
§IV.A7. Oct 1 argued the “Architectural
Character” heading made it subjective;
City replies “3 feet” and “5 feet” are
objective. Then: “The Challenged
Conduct Letter claims for the first time
that this standard is not applicable …
Applicant appears to incorrectly conflate
the meaning of the word ‘mandatory’
with the meaning of the word
‘objective.’ … the specified standard is a
baseline that, if provided, would satisfy
the requirement; however, the City
could exercise discretion to allow for a
deviation from this baseline.
Nevertheless, the baseline is still
mandatory if no discretionary deviation
is permitted.”
Our response column is
blank in the City’s table.
A reader of the City’s
document cannot see what
we argued. The City then
restates our argument in its
own words and answers the
restatement.
BLANK RESPONSE COLUMN —
STRUCTURALLY THE MOST MISLEADING
ROW
(a) “For the first time” is refuted by the
City’s own row, which records the Oct
1, 2025 letter raising the Guidelines’
status.
(b) The construction defeats its own
purpose: the City concedes it “could
exercise discretion to allow for a
deviation.” A standard subject to City
discretion is not objective under
§65913.4(a)(5).
(c) “The baseline is still mandatory if
no discretionary deviation is
permitted” is circular: whether a
deviation is permitted is itself the
discretionary act.
(d) The actual allegation — that the
City rewrote “should” as “requires” —
is never addressed.
Erased response column — our
argument is deleted from the column
reserved for it and the City’s
paraphrase stands in its place. The
reader sees only the version the City
chose to answer.
Strawman substitution — the charge
that the City rewrote “should” as
“requires” is replaced with a charge
that we confused “mandatory” with
“objective,” and the substitute is
refuted instead.
Self-defeating concession buried —
“the City could exercise discretion to
allow for a deviation” concedes nonobjectivity and is placed midsentence, followed by “Nevertheless.”
Partial-text objectivity — defends
the numerals “3 feet” and “5 feet”
while the disputed word is “should.”
NO.
19 City document quoted:
“Res 14890: The affordable housing
units shall possess a distribution of
bedroom counts proportionate to that
of the market-rate units within the
residential development project” and
“The affordable housing units shall have
access to the same amenities and
Reproduces both columns.
Response sets out the actual text of
Resolution 14890 §C in full — which
does NOT contain either sentence the
Aug 27 letter presented in quotation
marks.
The City bolds source phrases: the
“Type” requirement is derived from
“The affordable housing units shall be of
The City effectively
confirms our factual
allegation while calling it
baseless.
By reproducing the actual
resolution text, it
demonstrates that the
language quoted in the Aug
STRONGEST ROW FOR THE APPLICANT
(a) The Aug 27 letter presented
paraphrase as quotation, in quotation
marks, with a pin cite (“Section C(1) of
Resolution 14890”). The City’s own
reproduction establishes the point we
made.
(b) The “Access” requirement is
derived from a sentence whose
Quotation marks around paraphrase
— language the City wrote was
presented in the Aug 27 letter as the
text of Resolution 14890, with a pin
cite. The response reproduces the
real text and thereby proves the
charge while denying it.
Selective severance of a disjunctive
— “The same or substantially similar”
offers two alternatives; the City
NO.
Does not state what
bedroom mix would
satisfy it, or whether an
amenity-access covenant
would.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
common spaces as the market rate
units”
Our response:
“This code does not exist. The code in
fact states ‘Compatibility with
the…amenities…of the other developed
units’. The city rewrote this code
specifically for the consistency notice on
the fly to make it objective. Compatible
is non-objective. But the code simply
doesn’t exist. There are many examples
of the city making up the code for the
consistency letter of October 2025.”
a similar mix and type … 1. The same or
substantially similar mix of unit size”;
the “Access” requirement from “2.
Compatibility with the design, materials,
amenities, and appearance of the other
developed units.”
Argues: “The word ‘the same’ is
objective, even if ‘similar’ is not … The
‘similar’ phrase is an exception to the
baseline rule.” From Sept 6 plans: 13
market-rate units average 3.85
bedrooms, affordable unit has 2. Closes:
our claim “is baseless and warrants no
further response.” Cites the Oct 1, 2025
letter as “(October 6, 2025
Inconsistency Determination, p. 51.)”
27 letter is not in Resolution
14890.
operative word is “Compatibility.” The
City converts a compatibility criterion
into an access-to-amenities mandate.
(c) “The word ‘the same’ is objective …
The ‘similar’ phrase is an exception”
reverses the sentence’s grammar. “The
same or substantially similar” offers
alternatives on its face.
CITATION ERROR
(d) The Oct 1, 2025 letter is cited to the
October 6, 2025 Inconsistency
Determination, p. 51.
(e) “Warrants no further response” is
not a permissible disposition under
§(h)(6)(E)(iii).
declares the objective half a
“baseline” and the subjective half an
“exception,” enforcing only the half it
can measure.
Derivation displayed as authority —
bolding phrases inside a longer
sentence is presented as showing
where the standard “comes from,”
which makes reconstruction look like
citation.
Refusal to engage — “baseless and
warrants no further response” closes
the item rather than answering it.
Asking for documents that have already been provided
20 City document quoted:
“Geotechnical report is required”
Our response:
“Geotechnical report has been
provided”
Reproduces both columns verbatim.
Response: the Oct 6, 2025 letter
contained a “Courtesy Comments”
section stating “the following comments
do not address consistency with
applicable standards”; Courtesy
Comment #2 noted a geotechnical
report would be required. “The City has
never claimed that the Project’s
application could not be deemed
complete or consistent … without the
submission of a geotechnical report …
The City has not caused any delay or
increased cost by providing this courtesy
comment.”
We said the report NON-RESPONSIVE TO THE ALLEGATION
The category is “asking for documents
that have already been provided.” The
City answers about the consequence of
the request, not the fact of
duplication.
If the report was already on file, the
courtesy comment was inaccurate
regardless of whether it bound the
applicant.
Reclassification to strip effect — the
demand is retitled a “courtesy
comment,” which converts an act
into a favors and removes it from
review — while it sits inside a
statutory inconsistency
determination.
Substituted question — we said it
was already provided; the City
answers whether it was required.
N/A
Demanding documents that are CEQA reports
21 City document quoted:
“A Transportation Analysis report is
required per city Guidelines. Page 1 of
these Guidelines describe the report as
producing an outcome ‘that include[s]
conditions of approval and/or mitigation
measures under CEQA’”
Our response:
“Requiring this report is prohibited
under SB 35.”
Reproduces both columns verbatim.
Response: same courtesy-comment
framing (Courtesy Comment #3). Then:
“the Challenged Conduct Letter also
claims that a transportation analysis
cannot be required for an SB 35 project.
As explained above, the Project does
not qualify for processing under SB 35.”
No transcription difference.
Two-step disposal: first “it
was only a courtesy,” then
“and anyway SB 35 does not
apply.”
TWO-STEP DISPOSAL
Our specific point — that the City’s
own Guidelines describe the report as
producing CEQA conditions and
mitigation, and that §65913.4 exempts
qualifying projects from CEQA — is not
addressed on its terms.
A “courtesy comment” placed inside a
statutory (c)(1) determination is not
obviously severable from it. The City
does not explain how an applicant is to
tell which comments carry legal
consequence.
Alternative-holdings stacking — two
independent disposals are offered —
it was only a courtesy, and SB 35
doesn’t apply — so that refuting
either leaves the item closed. Neither
is defended in depth.
Reclassification to strip effect — the
“courtesy” label again removes a
demand from review without
removing it from the determination.
NO.
Claiming — directly and indirectly — that the housing development project did not vest on May 15, 2023; and making written statements that adopt, repeat, flow from, or attempt to give effect to that erroneous position Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
22 Our citation:
§65913.4(d)(1) — review “strictly
focused on assessing compliance with
criteria required for streamlined
projects, as well as any reasonable
objective design standards published
and adopted by ordinance or resolution
by a local jurisdiction before submission
of a development application, and shall
be broadly applicable to development
within the jurisdiction”
Column 2 reproduced; the “Challenged
Conduct Letter states” column is left
EMPTY.
Response: recites the dual SB 330 / SB
35 character of the May 15, 2023
preliminary application. Then: “For SB
35 projects, the standard 180-day
deadline does not apply; rather, an SB
35 application is subject only to the
objective … standards in effect at the
time that an SB 35 notice of intent is
submitted …”
Explains Aug 27 footnote 1 concluded
no vesting on May 15, 2023, and that
“The intent of footnote 1 was to
indicate, given that the Project did not
qualify for processing under SB 35, that
if the Project were processed as a
standard SB 330 application, the Project
would not have vested.” Says it
identified the March 2024 ODS
inconsistencies “as a courtesy … in case
Applicant elected to proceed under SB
330.”
The City concedes the
governing rule we asserted,
then makes it wholly
conditional on its own
eligibility determination.
RULE CONCEDED, THEN CONDITIONED
(a) The City states the correct rule —
vesting at notice of intent, no 180-day
limit for SB 35.
(b) The vesting question is then made
to turn on the multifamily
determination, which the City makes
unilaterally and which is the subject of
the pending federal action.
(c) The “courtesy” characterization
does not match the operative
documents. The March 2024 ODS
inconsistencies were listed
Concede the rule, own the trigger —
the City states our legal rule correctly
and then makes its application
depend entirely on a determination
the City itself controls. The
concession costs nothing.
Retrospective intent — footnote 1 is
re-explained as having always meant
something conditional and
hypothetical, a reading not apparent
from the footnote.
Reclassification to strip effect —
findings that were counted, reasserted and relied on in two denials are retitled a “courtesy.”
NO.
Ignoring Gov. Code §65905.5(c)(1); issuing inconsistency letters under §65913.4(c)(1)(A) & (C) without first approving density bonus and waivers; alleging inconsistency of items resolved by a bonus and waivers that the City is improperly delaying
23 Our statement:
“City raises multiple items (see above)
that are subject to the applying of
density bonus and waivers and thus its
(c)(1) letter in those regards is invalid
and not issued consistent with State
law.” With the full text of §65905.5(c)(1)
quoted.
Column reproduced.
Entire response: “See Item 24 below.”
No response given. DEFERRED → DEAD END
Item 24 responds only “See Section I.C
of the Response to Challenged Conduct
Letter” — and the Response letter
contains no Section I.C. Its sections are
I (Introduction), II (Background), III
(with A and B) and IV (Conclusion).
Substantively: our allegation is that the
(c)(1) letters were invalid
Deferral chain to nowhere — Item
23 points to Item 24; Item 24 points
to a section that does not exist. The
document appears to answer twice
and answers not at all.
Apparent completeness — every
row carries a response cell, so the
table reads as fully answered; only
tracing the references reveals the
gap.
NO.
24 City document quoted:
“Example: The General Plan limits
height on the site to 30 feet tall. All
primary dwellings exceed 30 feet in
height.”
Our response:
“The applicant had applied for a waiver
of this standard, but the city is
unreasonably and with no valid reason
delaying the issuance of the waiver. The
development is entitled to a bonus &
waivers under State law.”
Column 2 reproduced. Our response
column is EMPTY — the waiver-delay
allegation was moved into Item 23’s
column and does not appear against
Item 24.
Entire response: “See Section I.C of the
Response to Challenged Conduct
Letter.”
The specific allegation —
unreasonable delay in
acting on a requested
waiver — receives no
response anywhere in the
table.
BLANK COLUMN + DEFERRAL +
DANGLING CROSS-REFERENCE
Section III.A.3 states the City “did not
request that Applicant revise the
development application for those
items in which applicant sought to
utilize SDBL waivers,” and that Aug 27
acknowledged 10 waiver requests and
Oct 6 acknowledged 5.
It nowhere states when, or whether,
any waiver was granted or denied.
The Project was denied on Dec 3, 2025
with the waivers unacted on.
Allegation relocation — our waiverdelay charge is moved out of the row it belongs to and into a neighboring
row, then answered in neither. Both
rows appear populated.
Cross-reference to unwritten
authority — the only response is a
pointer to a section that does not
exist.
Silence on the operative fact — the
letter never states whether any
waiver was ever decided — the
single question the row raises.
NO.
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
Stating that “the applicant has not submitted sufficient information to enable the City to analyze this standard; therefore the Project is not consistent with this standard” when the applicant has submitted plans providing substantial evidence
25 City document quoted:
“Repeated continually throughout the
purported ‘inconsistency’ letter”
Our response:
Quotes §65913.4(f)(1) and
§65913.4(c)(3) — “The local
government shall not determine that a
development … is in conflict with the
objective planning standards on the
basis that application materials are not
included, if the application contains
substantial evidence …” — and states
the submittal contained such evidence.
Reproduces both columns.
Response: “The Challenged Conduct
Letter claims, in a blanket statement,
that the Project application contains
substantial evidence … However, the
challenged conduct letter does not cite
any portion of the application that
would allow a reasonable person to
make such finding.”
Then: “As explained in the City’s
responses to Items 2, 4, 7, 8, 12, 13, 15,
16, 18, and 19 above, the application
lacks enough information …” and
“invited Applicant to either submit
additional information … or point to
where in the application such
information is available, in case the City
inadvertently missed something (such as
in Items 1, 10, and 14 above) …
Applicant has largely declined … In this
regard, Applicant is solely responsible
for any delay.”
We cite the statute. The City
answers with a burden
allocation the statute does
not contain.
CONCEDES THE NOTICE’S CENTRAL
THESIS
(a) The City itself enumerates ten items
resolved on an “insufficient
information” basis — the precise
practice §65913.4(c)(3) forbids.
(b) “Does not cite any portion of the
application” is inaccurate on the face
of our Exhibit A, which cites sheets
throughout: A.0.5 (Item 8); A.0.3
(Items 12, 15, 16); A2.2–A3.4 (Item
13); A.0.2, A.0.3, A.0.8 (Item 14). The
City acted on those very citations at
Item 14.
(c) The City’s own parenthetical — “in
case the City inadvertently missed
something (such as in Items 1, 10, and
14 above)” — is an admission that it
did miss things, three times.
(d) “Applicant is solely responsible for
any delay” is not sustainable alongside
three withdrawn findings.
Burden inversion — the statute
forbids finding conflict where
substantial evidence exists; the
response asks the applicant to prove
consistency and treats failure to recite as concession. “Blanket statement”
characterization — our sheetspecific citations are recast as an unsupported generality, a claim
refuted by our own Exhibit A and by
the City’s action on those very
citations at Item 14.
Admission folded into a parenthesis
— the concession that the City
missed material three times is placed
inside a subordinate clause within a
sentence blaming the applicant.
Fault transfer — “Applicant is solely
responsible for any delay” closes the
item, immediately after listing ten
items the City could not resolve and
three it got wrong.
NO.
This is where instructions
belonged. None are given.
Representing that the City can end the processing of an SB 35 project by issuing a denial letter; representing that an applicant cannot resubmit and have processing continued 26 Our statement:
Quotes §65913.4(a)(1), (c)(1) and
(c)(1)(C) — written documentation
“within 30 days of submittal of any
development proposal that was
resubmitted to address written
feedback provided by the local
government pursuant to this paragraph”
— and argues the Statute provides “the
absolute right to resubmit the
application,” failing which a city could
require an applicant to “start at the
back of the line again each time the city
raised an issue,” with loss of vesting.
Column 2 reproduced.
Response recites the multifamily
premise, then cites our own November
8, 2025 meeting notes p.5: “I [applicant]
informed [the City] that I was aware of
those [alternative to SB 35] processes,
and did not plan to resubmit under
those processes.” Concludes: “Applicant
definitively indicated they will not revise
the project to qualify for SB 35 … The
City is unaware of, and Applicant has
not cited, any law that requires cities to
approve or continue processing housing
development applications in such
circumstances.”
Letter body adds: “Applicant seems to
suggest an SB 35 application can never
be denied.”
A different proposition is
substituted for ours.
Our contention is a right to
resubmit
QUOTATION USED FOR A PROPOSITION
IT DOES NOT SUPPORT
(a) The quoted note, on the City’s own
rendering, concerns “those [alternative
to SB 35] processes.” It is not a
statement that the applicant would
not resubmit under SB 35.
(b) §65913.4(c)(1)(C) expressly
contemplates resubmittal to address
written feedback and starts a new 30-
day clock. The City does not address
that subdivision anywhere.
(c) The March 20, 2026 submittal was
met with a completeness rejection on
portal grounds — not a (c)(1)(C)
response.
(d) The reductio in the letter body is a
straw man.
Quotation carrying a proposition it
does not support — a statement
about alternative pathways is
deployed to prove refusal to revise
under SB 35. The City’s own
bracketed insertion — “[alternative
to SB 35]” — shows the scope it then
ignores.
Straw man reductio — “an SB 35
application can never be denied” is
not our position; refuting it
substitutes for answering (c)(1)(C).
Silence on the controlling provision
— the subdivision that creates the
resubmittal right and its 30-day clock
is quoted in our column and never
addressed in the City’s.
Burden of citation reversed —
“Applicant has not cited any law” is
said of a provision quoted verbatim
in the adjacent cell.
NO —
Needlessly raising the cost of obtaining approvals
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
27 Our statement:
“The city continually raises subjects in
writing that do not conform to State law
(see this notice), and that often stop
processing of this streamlined
ministerial application, & that lead to
the applicant engaging in extensive
unnecessary work, and work that is not
required by state law”
Column reproduced.
Response: “This comment appears to
summarize Applicant’s view of the
overall result of the claims Applicant
makes in the items above … each the
City’s actions with which Applicant takes
issue conform to state law … Any
additional expense that Applicant incurs
related to these decisions are
completely within Applicant’s control.”
No transcription difference.
Wholly derivative.
DERIVATIVE
Sits uneasily with the three findings
the City withdraws at Items 1, 10 and
14 — each of which generated
correspondence and analysis, and
none of which the applicant caused.
Aggregation and dismissal — the
item is recast as a mere summary of
other items and disposed of by
reference to their disposal.
Fault transfer — cost is attributed
entirely to the applicant’s choices, in
a document that withdraws three of
the City’s own findings.
NO.
Failing to follow the processes outlined in Gov. Code §65913.4 as described in the case law, including 40 Main Street Offices LLC v. City of Los Altos 28 Our statement:
“See attached excerpts from Order
Granting Consolidated Petitions for Writ
of Mandate, 40 Main Street Offices, LLC
v. City of Los Altos, Case No.
19CV349845 (County of Santa Clara,
April 24, 2020).” Excerpts attached to
the Notice.
Column 2 reproduced; response
column EMPTY.
Response: “the Project does not qualify
for processing under SB 35, so the cited
case is not applicable.” Then
distinguishes: in 40 Main Street the city
did not cite the standards it applied,
whereas “both the August 27, 2025
inconsistency determination and the
October 6, 2025 determination specify
(with citation) which standards the City
is applying,” and both “state the
standard that applies, the specifications
the project proposes, and the reason
that the proposed project does not
comply.”
The attempted distinction is
contradicted by the City’s
own table.
DISTINCTION REFUTED BY THE CITY’S
OWN DOCUMENT
(a) 40 Main Street holds that
“adequate” ingress/egress is not an
objective standard. The City concedes
exactly that at Item 1.
(b) 40 Main Street also holds the
determination must explain
(c) The claim that each determination
states “the reason that the proposed
project does not comply” is inaccurate
as to the ten items the City itself lists
at Item 25.
Distinction on the holding the City
fails — the case is distinguished on
citation of standards, while its other
holdings — that “adequate” is
subjective, and that the reason for
conflict must be explained — are the
ones the City’s own responses
violate.
Alternative-holdings stacking — “not
applicable” plus “and in any event we
complied,” neither developed.
Assertion contradicted internally —
the claim that every determination
states the reason for non-compliance
is refuted by the ten-item list at Item
25. N/A
Delaying approval of housing in the residential zones in favor of development more acceptable to residents in the downtown/commercial districts; following a policy of denying housing on the improper basis that residential lots have or may have circulation, access, and slope issues
29 City statement quoted:
City advised applicant that “there are
issues with these lots.”
Our response:
“Housing of all types, including housing
with yards, and in all parts of San Rafael,
is supported by Affirmatively Furthering
Fair Housing requirements and Federal
Fair Housing law, No Net Loss law,
Housing Crisis Act, Housing Element
Law”
Reproduces both columns verbatim.
Response: “claims, without citation or
further explanation … The City is
unaware of having made such
statement and has not identified such
quotation in any of the documents
related to the processing of the Project.
To the extent that the quoted phrase
represents Applicant’s own
paraphrasing, the August 27, 2025 and
October 6, 2025 inconsistency
determinations identify ‘issues with the
lots’ …”
Then: “This comment appears to
acknowledge the City’s recent housingrelated successes …”; Downtown Precise Plan; approximately 2,554 units; “All of
these developments provide the
amount of outdoor space (i.e., yards)
that is legally required.”
The City denies the
statement and then
supplies the same meaning
itself.
It also reads our allegation
of siting bias as praise.
NON-DENIAL DENIAL + INVERTED
READING
(a) The denial is immediately followed
by a re-characterization carrying the
identical meaning. The City searched
only “documents related to the
processing of the Project”; the
allegation concerns an oral statement.
(b) “This comment appears to
acknowledge the City’s recent housingrelated successes” inverts the plain sense of our text.
(c) The AFFH response is a volume
statistic. AFFH is a distributional
obligation.
(d) “All of these developments provide
the amount of outdoor space (i.e.,
yards) that is legally required” answers
Non-denial denial — “unaware of
having made such statement,” with
the search confined to written
processing documents, followed by a
paragraph supplying the same
meaning.
Inverted reading — an allegation of
siting bias is recast as
acknowledgment of the City’s
“housing-related successes,”
converting an accusation into a
compliment that requires no answer.
Volume statistic for a legal test —
2,554 units and a downtown plan are
offered against AFFH, which asks
about distribution, not totals.
Restating the minimum as the
answer — the “housing with yards”
point is met by confirming that
developments provide the outdoor
space “legally required.”
N/A
Item 1. What our April 2, 2026
§65589.5(h)(6)(E) Notice states
2. What the July 1, 2026 City response
states we said / its response
3. Differences between
what we said and what he
says we said
4. Accuracy analysis — misquote,
wrong record, or non-response?
5. Method used — the technique
by which the response is made to
look compliant
6. Lawful way forward
given? §(h)(6)(E)(iv)(II)
our “housing with yards” point by
restating the legal minimum.
Part 4 — What kind of document this is
A litigation brief in the form of statutory findings
The letter states that it “serves as the written findings pursuant to Government Code section 65589.5(h)(6)(E)(iv)” while simultaneously denying that any duty to respond exists: “As it is clear that the City took final administrative action, the Housing Accountability Act (‘HAA’) does not require the City to issue a response to the Challenged Conduct Letter. Nevertheless, the City is providing this response in an abundance of caution and as a courtesy.” These are findings in the alternative — claimed for their protective effect while the obligation to make them is disclaimed.
The organizing principle is defense of past acts, not direction of future ones. Section III is headed “THE CITY DID NOT ENGAGE IN A COURSE OF CONDUCT UNDERTAKEN FOR AN IMPROPER PURPOSE.” Of eleven pages, the section addressing what the applicant should now do occupies a single short paragraph. Attachment A is organized as a rebuttal of each of our allegations rather than as a resolution of each of the underlying obstacles.
Indicators of drafting and authorship
The document is signed by Micah Hinkle, but the internal evidence does not support attributing the analytical table to him, and it does not identify any other individual with confidence.
What it does show:
• The letter body and Attachment A carry different document control numbers at different revision counts — 4931-3404-4597 v7 and 4908-8412-7925 v4. They were drafted as separate documents and never reconciled.
• The 25 dangling “Section I.A / I.B / I.C” references map cleanly onto III.A.1, III.A.2 and III.A.3, indicating the attachment was written against an earlier draft and the body renumbered without the attachment being updated.
• The PDF records the author as Christina Ratcliffe, produced through Acrobat Sign and created June 30, 2026 — the day before the letter date. This field commonly records whoever assembled the file rather than the drafter.
• The body carries unedited artifacts: an orphan sentence fragment (“…inconsistency determinations. the comments Applicant provided in Exhibit A to the Challenged Conduct Letter.”); “in good faith an in accordance”; “incomplete..”; “Attachment 1” in the body against “Attachment A” everywhere else; “California Defense Fund (‘HDF’)” later becoming CalHDF; “appliable” twice.
The likely explanation is a hybrid document: planning staff supplied the sheet-level observations — no law office writes “Parking space 33 appears nonexistent” or “Space 34 appears to be labeled as only 8ʹ7ʺ wide” — and counsel supplied the legal framing and the disposal premises. That division also accounts for the plan-set problem in Part 2, finding 1: whoever compiled the sheet references worked from the most recent set to hand rather than the legally operative one.
What §65589.5(h)(6)(E)(iv) required, and what was delivered The provision is conjunctive. Absent a written statement that the City will immediately cease the challenged conduct, it must issue findings doing both of the following: (I) articulate an objective basis for why the challenged course of conduct is necessary, and (II) give clear instructions on what the applicant must submit or supplement so the agency can make a final determination on the next necessary approval, or set the date and time of the next hearing.
No statement of cessation is given. On (I), the basis offered is that the determination “was necessary because such determination was required by State law.” That is an assertion of legal compulsion, not an objective basis, and it is undercut by the City’s own withdrawals at Items 1, 10 and 14.
On (II), the entirety of the instruction is that the applicant “would need to submit a new and complete housing development application via eTrakit” or resubmit the Revised Project through the portal, and that the City “believes there may be multiple pathways” and would evaluate consistency “pursuant to SB 9, SB 684 or other laws, or by submitting a project application that meets the requirements for streamlined ministerial processing of SB 35.” That text does not identify which inconsistencies must be cured or how; does not state what would make the project “multifamily” in the City’s view —what constitutes attachment; does not state the block-average setback figure it says governs (Item 17); does not state what height documentation it wants (Item 13); does not set any date or time for a meeting nor offer a meeting; and conditions everything on a portal formality that appears nowhere in §65913.4 and which the City bypassed itself when it conducted a “courtesy completeness review” of the March 20, 2026 submittal.
Across all twenty-nine rows the only near-instructions are the lighting notes at Parking 2 and 5 (Item 16) and per-space parking dimensions (Item 15). Neither is stated as an instruction, and neither is identified as sufficient to resolve the item, though the submitted application document do resolve the item.
The through-line is circularity. The remedy the statute contemplates is that the City cease the conduct and open a path. The response instead treats its own denial as having removed the need for either — conceded errors become “moot,” the request for a way forward is met with an invitation to abandon the vested application and begin again under a different statute, and the refusal to accept and process a resubmittal, which is the conduct at the center of the April 2 Notice, is confirmed rather than cured.
Errors & Omissions Excepted. August 7, 2026
62 14City October 6 2025 ‘consistency letter’ compared to the standards that are in fact allowable
Analysis of City of San Rafael October 6, 2025 SB 35 Consistency Determination (Revised) Against the Ten-Type Non-Objective Standards Classification Table (HAA / SB 35 – Gov. Code §§ 65589.5, 65913.4, 65915; CARLA v. San Mateo; Ruegg & Ellsworth v. Berkeley (2021) 63 Cal.App.5th 277; CA Attorney General Elk Grove Letter, Mar. 16, 2023; 40 Main St. Offices v. Los Altos) – incorporating: (i) state-law deemed-satisfied notes on every information-request finding; (ii) SRMC § 14.12.040 an overriding City Council exception power over all Chapter 14.12 hillside standards; and (iii) NAF (“not applied for”) analysis for fences, sub-2,500 sf landscaping, and all Title 15 subdivision standards.
Project: 14-unit multifamily housing development project, 253–281 Coleman Drive / Fair Drive, APNs 011-031-44 through -49 (six-lot, 1.4-acre common project site), PLAN23-067 / PA23-007. Letter: City of San Rafael (M. Kavanaugh-Lynch, Planning Manager) to River Landon LLC, October 6, 2025, responding to September 6, 2025 SB 35 settlement project submittal. Despite San Rafael’s desire to ‘analyze’ each standard, the Development(s) are subject to the Builders Remedy making local General Plan and zoning code legally inapplicable. Government Code section 65589.5 provides deemed compliance with specified objective zoning, subdivision, and design-review standards. ‘Attachment 1’ references the city attachment to its letter. The standards the city attempt to enforce are inapplicable. Yet –the city attempts to enforce them and documents that the development does not comply as a result of it, and purports to deny the development December 3, 2025 based on those application of those impermissible standards and further purports to terminate the application.
Table A – Standard-by-Standard Classification Analysis
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
ATTACHMENT 1 – PLANNING DIVISION: SB 35 Eligibility, General Plan, and Zoning Code (Tables 1.1–1.2)
1. SB 35 eligibility –
“multifamily housing
development” (Gov. Code §
65913.4(a)(1); SRMC §
14.03.030)
Type 4 – No longstanding
consistent interpretation;
city demands deference;
Type 5 – Argument over
interpretation / ambiguity
SRMC § 14.03.030 (“Residential, multifamily”): “medium and high density residential development [. . .] containing three (3) or more attached dwelling units in one (1) or more structures located on a single parcel or common lot.” The City substitutes its own local zoning definition for the State statutory term in Gov. Code § 65913.4(a)(1) and demands deference to that unique local reading.
N N/A Y Eligibility under SB 35 is governed by State law/HCD interpretation, not the SRMC definition; an “objective planning standard” that is subject to c. The city letter also disaggregates a unified 6-lot, 1.4-acre common project site into single-lot analyses (per CARLA, a contested/non-uniform interpretation), and rejected by State Attorney General for Willow Park project.
2. General Plan – Maximum
Height (GP p. 3-25)
Type 10 –
Waiver/concession
requested; standard
cannot be applied (Gov.
Code 65915(e)(1))
October 6 letter recitation only: “The General Plan limits height on the site to 30 feet tall.” No General Plan text is quoted; only a page citation (“General Plan p. 3-25”) is given. See Column 7.
N Y Partial A SDBL waiver was requested to exceed height. Under Gov.
Code § 65915(e)(1) a city may not apply any development standard that physically precludes the project at the waived level; listing it as an “inconsistency” after the waiver request is improper (40 Main St. Offices v. Los Altos).
3. General Plan – Parking &
Driveways screening (Policy
CDP-4.9)
Type 2 – Personal
interpretation / subjective
judgment
October 6 letter recitation only: “Parking is required to be screened from the street by landscaping.” Whether landscaping adequately “screens” parking requires aesthetic judgment that varies from one reviewer to the next (CARLA v. San Mateo).
N N/A Partial CDP-4.9 is a General Plan policy, not a codified objective development standard; adequacy of “screening” is inherently subjective. No GP text quoted.
4. City referenced SingleFamily District purpose /
land use (SRMC §§
14.04.010.H, 14.04.020;
def. § 14.03.030)
Type 9 – May only be
applied to facilitate GP
density / RHNA; Type 5 –
Argument over
interpretation / ambiguity
City referenced SRMC § 14.03.030 (“Residential, single-family”):
“low density residential development containing one (1) primary residential ‘dwelling unit’ for use by a single household on a single parcel.” Applied as a use/density restriction to bar additional units, and bar River Landon’s development. This is a multifamily development.
N N/A Y City applies single-family density at the parcel level (& zoning) rules for this multifamily development in the single family zones on a project site. Remarkably, it also attempts to apply its – mutually exclusive to its single-family zoning rules (not specifically General Plan rules) – medium and high density rules to this development which by the city’s own zoning code are not applicable to the low density residential zone (requiring 3 units per lot). See Item 1. Contradictory, conflictive, inapplicable and, ‘double applied’ standards in the same ‘consistency determination’. By the writing, it blocks SB 35 multifamily development, in these single family zones i.e. our multifamily development. Both analyses are invalid. The city has its cake and eats it – or it certainly tries.
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
The development complies with GP density, plus SDBL bonus units, per law.
SB 35 provides for multifamily developments in any residential zone on a project site. There was never a need to go further than that. Except if you wish to create confusion – which is the city’s purpose - and which confusion is time consuming to unravel. Known in the industry as ‘the confusion veto’. This is exactly the harassment per HAA that the H(6) notice is
designed to STOP. But the city simply continued. Why do we have the highest housing cost in the nation, & the lowest home ownership rate in the nation?
Under Gov. Code § 65589.5(f)(1)/(j)(4) standards may be enforced only “to facilitate and accommodate development at the density permitted”; enforcing the one-unit-per-parcel use restriction to prevent density on a 6-lot common site repeats the Elk Grove & Menlo Park violation – in Menlo Park Nira Doherty oversaw a city rework of the project site such that the project did not comply, and then purported to the applicant that as a result the project did not comply.
“Specific purposes” sections are not development standards.
5. Setbacks (SRMC §
14.04.030 – Property
development standards (R))
Type 10 –
Waiver/concession
requested; standard
cannot be applied (Gov.
Code 65915(e)(1))
October 6 letter recitation: R10 requires 10-ft side, 10-ft rear, 20-ft front setbacks (numeric standards recited in letter; code table itself not quoted).
N Y Partial A SDBL waiver was expressly requested for front, side and rear setbacks; per Gov. Code § 65915(e)(1) the standard cannot then be applied to find inconsistency.
6. Height (SRMC §
14.04.030; “Height,
hillside” def. § 14.03.030)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days; Type 10
– Waiver/concession
requested; standard
cannot be applied (Gov.
Code 65915(e)(1))
SRMC § 14.03.030: “‘Height, hillside’ means the height of all structures, fences and walls measured vertically from the existing (e.g., natural) grade to the uppermost point of the roof edge, wall parapet, mansard or other feature above the existing grade at any given point.” City finding: “The Applicant has not submitted sufficient information to enable the City to analyze this standard.” N Y Y A height waiver was also requested (Type 10), independently barring application of the standard.
Height is subject to measurement to ‘other feature’ which is undefined and not objective. Height in the hillside area is also subject to global override by a body.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
7. Maximum Lot Coverage
(SRMC § 14.04.030)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No code text or numeric coverage limit is recited anywhere in the letter. City finding: “The plan set pages that attempt to illustrate lot coverage do not show the lot lines themselves, therefore staff is not able to confirm the summary calculations provided.” In fact, the development application is for the project site.
N Y N The applicable coverage percentage is never even stated, so no “careful explanation” of any conflict exists (Ruegg & Ellsworth).
City pivots to an analysis of each individual lot, when it is the project site that must be analyzed – as a part of that it picks a sheet where the lot lines are not shown. Then it pivots to the data not being available – of course it wouldn’t be (because this is a project site consisting of multiple individual lots) This is a similar strategy to that used by legal adviser to this project Nira Doherty for Menlo Park project – pick a ‘view’ of the project that helps the city state that the development doesn’t comply (and doesn’t have to comply), pick whichever inapplicable one doesn’t work, and document that, causing momentary
confusion possibly, &, which the State AG categorically rejected in Menlo Park in July 2026 to Nira Doherty as a violation of the Housing Accountability Act.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
8. Accessory Dwelling Units
(SRMC § 14.16.285(E)(2);
Gov. Code § 66323(a)(2))
None of Types 1–10 as
written (objective numeric
limit) – but misapplied on
the facts
“No more than one detached new construction ADU is permitted on lots with an existing or proposed single-family dwelling (see Gov. Code, § 66323, subd. (a)(2) and San Rafael Municipal Code §
14.16.285(E)(2).)”
N N/A Y Internally contradictory: the city letter’s own lot-by-lot project description states Lot 011-031-45 “consists of two detached single family dwellings and a detached accessory dwelling unit” — i.e., ONE detached ADU — yet the finding claims “more than one detached new construction ADU on lot 011-031-45.”
These are not single family dwellings, they are units in this multifamily development. Further, the development proposes ADUs in multifamily development, for which the rules are different. No careful explanation was given. (See off the shelf legal template architecture analysis applied to at least two very different developments, Nira Doherty advising on both
projects, in different cities)
9. Building Stepback (SRMC
§ 14.12.030.A)
Type 1 – Discretion
(deviation/approval
mechanism); Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
SRMC § 14.12.030.A.1: stepback of at least 5ʹ required beyond 20ʹ wall heights “unless otherwise determined through the
environmental and design review permit process.” City finding:
“The proposed plans do not specify the required stepbacks … it is undetermined whether this exceeds the allowable 25% threshold.” N Y Y The standard contains its own discretionary deviation mechanism (E&DR process); a stepback waiver was also
requested (Type 10). Even if this standard were externally benchmarkable, SRMC § 14.12.040 subjects every Ch. 14.12 property development standard to City Council exception on subjective “demonstrably superior” criteria — overriding discretion that renders the entire chapter non-objective (AG Elk
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
explanation of conflict
within 30/60 days; Type 10
– Waiver/concession
requested; standard
cannot be applied (Gov.
Code 65915(e)(1)); Types 1
& 3 additionally via SRMC
§ 14.12.040 (City Council
may except any Ch. 14.12
standard – relief
unavailable to ministerial
SB 35 applicant)
PLUS SRMC § 14.12.040 – Exceptions to property development standards (overriding discretion over ALL Chapter 14.12 standards): “City Council Exception Required. Exceptions to the property development standards of this chapter may be approved by the city council when the applicant has demonstrated that alternative design concepts carry out the objectives of this chapter and are consistent with the general plan…” based on criteria including a “demonstrably superior project with greater sensitivity to the natural setting.”
Grove, p. 2: a “mechanism to deviate from the development standards” defeats objectivity).
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
10. Building Setbacks –
hillside (SRMC §
14.12.030.B)
Type 1 – Discretion
(deviation/approval
mechanism); Type 3 –
Relief available from City
Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Types
1 & 3 additionally via
SRMC § 14.12.040 (City
Council may except any
Ch. 14.12 standard – relief
unavailable to ministerial
SB 35 applicant)
SRMC § 14.12.030.B: “Structures may encroach into a required yard or setback for a distance of not more than one-half (½) of the required yard or setback provided that the decrease minimizes the impact of hillside development and grading, subject to approval by the hearing body of an environmental and design review permit.” PLUS SRMC § 14.12.040 – Exceptions to property development standards (overriding discretion over ALL Chapter 14.12 standards): “City Council Exception Required. Exceptions to the property development standards of this chapter may be approved by the city council when the applicant has demonstrated that alternative design concepts carry out the objectives of this chapter and are consistent with the general plan…” based on criteria including a “demonstrably superior project with greater sensitivity to the natural setting.”
N Y Y The provision is itself a relief mechanism exercisable only through discretionary hearing-body approval; that relief is practically not available because – again - the project is ministerial. Thus, city imposes a higher standard on the SB 35 application (Gov. Code § 65913.4(i)(1)). Also applied lot-by-lot to a unified 6-lot site. Even if this standard were externally benchmarkable, SRMC § 14.12.040 subjects every Ch. 14.12 property development standard to City Council exception on subjective “demonstrably superior” criteria — overriding discretion that renders the entire chapter non-objective (AG Elk Grove, p. 2: a “mechanism to deviate from the development standards” defeats objectivity). SRMC § 14.12.030.B is subject to approval by the hearing body – it is a non-objective standard.
11. Natural State (SRMC §
14.12.030.C)
Type 1 – Discretion
(deviation/approval
mechanism); Type 3 –
Relief available from City
Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
– Request for more
information; not a
determination of conflict;
Type 7 – No careful
SRMC § 14.12.030.C: 25% of lot area plus average-slope
percentage “must remain in its natural state. This standard may be waived or reduced for lots zoned PD (planned district) or developed with clustered development, subject to approval by the hearing body.” City finding: “staff is not able to calculate the lot coverage per lot and therefore not able to ascertain consistency.” PLUS SRMC § 14.12.040 – Exceptions to property development standards (overriding discretion over ALL Chapter 14.12 standards): “City Council Exception Required. Exceptions to the property development standards of this chapter may be approved by the city council when the applicant has demonstrated that alternative design concepts carry out the objectives of this chapter and are consistent with the general plan…” based on criteria N Y Y The code embeds a hearing-body waiver mechanism
(discretion); the finding is expressly an inability-to-calculate information request; and a SDBL waiver of the natural-state standard was requested — triple disqualification from
application – yet the city purports to enforce it. Even if this standard were externally benchmarkable, SRMC § 14.12.040 subjects every Ch. 14.12 property development standard to City Council exception on subjective “demonstrably superior” criteria — overriding discretion that renders the entire chapter non-objective (AG Elk Grove, p. 2: a “mechanism to deviate from the development standards” defeats objectivity).
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
explanation of conflict
within 30/60 days; Type 10
– Waiver/concession
requested; standard
cannot be applied (Gov.
Code 65915(e)(1)); Types 1
& 3 additionally via SRMC
§ 14.12.040 (City Council
may except any Ch. 14.12
standard – relief
unavailable to ministerial
SB 35 applicant)
including a “demonstrably superior project with greater sensitivity to the natural setting.”
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
12. Parking Requirements
(SRMC §§ 14.12.030.F;
14.18.040, Table 14.18.040)
Type 1 – Discretion
(deviation/approval
mechanism); Type 3 –
Relief available from City
Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
– Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days; Types 1
& 3 additionally via SRMC
§ 14.12.040 (City Council
may except any Ch. 14.12
standard – relief
unavailable to ministerial
SB 35 applicant)
SRMC § 14.12.030.F: two additional on-site spaces required on streets under 26ʹ — “This requirement may be waived or reduced by the hearing body when deemed appropriate or necessary to reduce the need for excessive grading or tree removal…” City finding: “it is not possible to determine based on the plan set provided if each unit has any covered parking.”
PLUS SRMC § 14.12.040 – Exceptions to property development standards (overriding discretion over ALL Chapter 14.12 standards): “City Council Exception Required. Exceptions to the property development standards of this chapter may be approved by the city council when the applicant has demonstrated that alternative design concepts carry out the objectives of this chapter and are consistent with the general plan…” based on criteria including a “demonstrably superior project with greater sensitivity to the natural setting.”
N N/A Y Standard carries an express hearing-body waiver (“when deemed appropriate” = discretion). Yet – like the other standards it attempts to use, all inapplicable as demonstrated, the city attempts to enforce it and documents that the
development does not comply as a result of it – and, even though inapplicable purports to deny and terminate the
application because of the inapplicable standards. Even if this standard were externally benchmarkable, SRMC § 14.12.040 subjects every Ch. 14.12 property development standard to City Council exception on subjective “demonstrably superior” criteria — overriding discretion that renders the entire chapter non-objective (AG Elk Grove, p. 2: a “mechanism to deviate from the development standards” defeats objectivity). The city also introduces much confusion over which street is being referenced, and ignores the clear allocation of 2 parking units to each unit documented in the Cover Sheet.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
13. Streets and Driveways –
grade (SRMC §
14.12.030.H)
Type 1 – Discretion
(deviation/approval
mechanism); Type 3 –
Relief available from City
Council, Planning
Commission, Design
SRMC § 14.12.030.H: “New street and driveway grades shall not exceed eighteen percent (18%) unless an exception has been granted by the hearing body, and the design has been
recommended by the public works director and fire marshal to allow a driveway or street slope up to a maximum twenty-five percent (25%) grade.” City finding: plans “do not appear to N N/A Y 18% ceiling is expressly adjustable to 25% by hearing-body exception on staff recommendation — a discretionary
mechanism unavailable to a ministerial applicant. Even if this standard were externally benchmarkable, SRMC § 14.12.040 subjects every Ch. 14.12 property development standard to City Council exception on subjective “demonstrably superior”
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
– Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days; Types 1
& 3 additionally via SRMC
§ 14.12.040 (City Council
may except any Ch. 14.12
standard – relief
unavailable to ministerial
SB 35 applicant)
indicate the proposed slope and therefore consistency cannot be determined at this time.”
PLUS SRMC § 14.12.040 – Exceptions to property development standards (overriding discretion over ALL Chapter 14.12 standards): “City Council Exception Required. Exceptions to the property development standards of this chapter may be approved by the city council when the applicant has demonstrated that alternative design concepts carry out the objectives of this chapter and are consistent with the general plan…” based on criteria including a “demonstrably superior project with greater sensitivity to the natural setting.”
criteria — overriding discretion that renders the entire chapter non-objective (AG Elk Grove, p. 2: a “mechanism to deviate from the development standards” defeats objectivity).
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
14. Affordable Housing
(SRMC § 14.16.030
incorporating Resolution
14890)
Type 2 – Personal
interpretation / subjective
judgment; Type 5 –
Argument over
interpretation / ambiguity
SRMC § 14.16.030 (as recited): “residential development projects must provide affordable housing units as described in the policies and procedures specified in the San Rafael City Council’s Guidelines for the Administration of the Affordable Housing Trust Fund (Resolution 14890).”
N N/A Y Incorporates by reference uncodified council “policies and procedures”/Guidelines (see rows 36–39) whose operative terms (“comparable,” “proportionate”) require judgment — too ambiguous to be susceptible of objective interpretation (CARLA). Rather than a careful explanation of consistency, city staff wrote new code for the consistency letter, not proposed or adopted by the city council, and inserted into the
consistency letter
15. Fences and Walls
(SRMC § 14.16.140)
Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 14.16.140 (as recited): fences in front/streetside setbacks max 4ʹ; fences to 7ʹ in rear/interior side yards; retaining walls to 4ʹ in rear/interior side yards. City finding: “The plans do not contain enough detail for the City to determine whether the Project complies with the fence standards at this time.”
N N/A Y NAF ANALYSIS: No fence entitlement is applied for in this application — no fence approval is proposed or needed as part of the SB 35 submittal. Under Type 6, an inconsistency cannot be founded on a standard governing an entitlement the applicant did not seek; the City’s “not enough detail” comment itself confirms no fence approval was requested.
Wall heights are subject to discretionary approval.
All hillside standards can be changed and are subject in city code to override and discretionary input and approval. This is not objective. And it subjects – if the city attempts to apply – to different (and higher) standards for this SB 35 development, which is prohibited in State law.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
16. Swimming pools /
mechanical equipment
(SRMC § 14.16.320)
Type 2 – Personal
interpretation / subjective
judgment; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 14.16.320 (as recited): requires a 3-sided enclosure “or equally effective measure(s)” and sound attenuation “to the maximum extent practicable.” City finding: plans “do not contain enough detail to determine whether the Project complies.” N N/A Y “Equally effective” and “maximum extent practicable” require case-by-case judgment (non-objective under CARLA).
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
17. Water-efficient
landscape (SRMC §
14.16.370 / MMWD
Ordinance)
Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 14.16.370 (as recited): landscapes ≥ 2,500 sf must comply with water-efficient landscape requirements; MMWD Water Conservation Ordinance adopted by reference. City finding: “the City cannot determine at this time whether the Project is consistent with these standards.”
N N/A Y NAF ANALYSIS: The application states the proposed developer-installed landscape area is below the 2,500-sf trigger, so the standard is not triggered and no waterefficient-landscape approval is applied for. The City asserts the application “incorrectly states” non-triggering but supplies no square-footage calculation or finding — converting a nonapplication into an “inconsistency” without any quantified basis. Under updated Type 6, a standard whose entitlement threshold is not met and not applied for cannot support inconsistency.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
18. Parking Space
Dimensions (SRMC §
14.18.100)
Type 6 – Request for more
information; not a
determination of conflict;
No dimensional text quoted. City finding: “While some dimensions are provided, and the cover pages notes that all spaces are 9 feet by 19 feet, the application does not contain enough information to N N/A Partial Internally inconsistent: the City acknowledges the plans state all spaces are 9ʹ × 19ʹ (meeting standard stall dimensions) yet still claims insufficiency — an information request contradicted
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
Type 7 – No careful
explanation of conflict
within 30/60 days
determine whether all parking spaces [comply]; additional information is needed to verify compliance.”
by the record it recites. City had to make a consistency determination within 60 days – to the city’s mind if it did so, it would have to approve the development – which is a primary reason it did not.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
19. Access to Public Rightof-Way (SRMC §
14.18.140(A), (C))
Type 1 – Discretion
(deviation/approval
mechanism); Type 2 –
Personal interpretation /
subjective judgment; Type
3 – Relief available from
City Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
– Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 14.18.140.C: “Driveway Grades. Driveway grades shall be subject to review and determination by the city engineer.
Maximum driveway grade typically allowed is eighteen percent (18%).”
N N/A Y “Subject to review and determination by the city engineer” is discretion; “typically allowed” concedes the benchmark is not uniform or unchanging.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
20–21. E&DR Review
Criteria – Utility Service;
Walls, Fences & Screening
(SRMC § 14.25.050) [Parts
A & B merged]
Type 1 – Discretion
(deviation/approval
mechanism); Type 2 –
Personal interpretation /
subjective judgment; Type
6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 14.25.050 (as recited): (Part A – Utility Service) refuse areas “screened and located in areas convenient both to users and to persons who make collections. There shall be adequate ingress and egress to all utilities.” (Part B – Walls, Fences & Screening) screening of mechanical equipment “shall be designed as an integrated architectural component of the building and the landscape.” City finding (both parts): application “does not contain enough information to allow the City to determine compliance with any of these standards.”
N N/A Y Chapter 14.25 is the City’s discretionary Environmental & Design Review permit chapter; “convenient,” “adequate,” and “integrated architectural component” are aesthetic/functional judgments applied through a discretionary permit process.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
ATTACHMENT 1 (cont.) – HILLSIDE DESIGN GUIDELINES (Table 1.3)
22. Hillside Design
Guidelines IV.A5 – Street
Layout, Driveway & Parking
Design
Type 1 – Discretion
(deviation/approval
mechanism); Type 2 –
Personal interpretation /
subjective judgment; Type
3 – Relief available from
City Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
– Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
HDG IV.A5: “Driveway grades up to a maximum of 18% are
allowed unless the Design Review Board, Fire Department, and the City Engineer find good cause for exception… parking landings shall be required on all drives over 10%.” City finding: “the City cannot currently determine whether the Project is consistent.” N N/A Y The 18% guideline is expandable to 25% on a “good cause” finding by three discretionary bodies — a deviation mechanism that renders it non-objective; guidelines document is largely “should”-based advisory text.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
23. Hillside Design
Guidelines IV.A7 – Hillside
Architectural Character
Type 2 – Personal
interpretation / subjective
judgment; Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
HDG IV.A7 (fence buffer, as recited): “fences and walls over 3 feet in height that face public streets [shall] provide a fully landscaped buffer at least 5 feet deep on the street facing side.” Section otherwise mandates “semi-rural character,” forms “broken” to reflect hillside setting — aesthetic judgments.
N N/A Y “Architectural Character” guidelines are quintessentially subjective (CARLA height-guidelines analysis). NAF ANALYSIS:
no fence entitlement is applied for; a street-facing fence-buffer guideline cannot ground inconsistency where no fence
approval is sought.
All hillside regulations can be overridden by relevant body.
The standard – if applicable – would not allow the GP density, as proposed.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
24. Hillside Design
Guidelines IV.A9 – Site
Lighting
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
HDG IV.A9 (as recited): parking-area lighting max mounting height 15ʹ; pedestrian fixtures “should be limited to heights below 8 feet.” City finding: “No lighting information is provided and as such, additional information is needed to verify compliance.” N N/A Y Guideline pedestrian-height text is “should” language; lighting fixture specifications are building-permit-level details.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
ATTACHMENT 1 (cont.) – OBJECTIVE DESIGN STANDARDS, Resolution 15280 (Table 1.4)
25. ODS – Site Planning
(Building Orientation)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites: entrances of buildings adjacent to a public street “face the public street or alley.” City finding: “The residences appear to face Coleman Drive, but the exact location of individual building entrances is not clearly shown.”
N N/A N City’s own observation (“residences appear to face Coleman Drive”) indicates compliance; the finding is nonetheless framed as insufficiency. No numbered ODS citation — only a URL to a 2024 council agenda-packet PDF.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
Later, city had to confess these standards produced after vesting, and primarily directed at the downtown rush, are not applicable. This applies to all standards with prefix ODS.
26. ODS – Site Planning
(Windows and Privacy)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites the 10-ft window offset / glazing standard relative to existing neighboring bedroom windows. City finding: plans “do not include enough information.” N N/A N Standard depends on measurements to off-site conditions on neighboring private property (facing bedroom windows) — inherently case-by-case; no numbered citation.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
27. ODS – Site Planning
(Ensure Adequate
Screening)
Type 2 – Personal
interpretation / subjective
judgment; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites: screening “to obscure direct sight lines between private yards” via fence, wall, or hedge 4–6 ft. City finding: “plans do not show if and/or how the project will incorporate screening.”
N N/A N “Adequate” screening “to obscure direct sight lines” calls for judgment; no numbered citation.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
28. ODS – Site Planning
(Ground Level Utility
Location & Screening)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites: utilities in vaults, underground, “or, if not allowed by PG&E, screened and not visible from the public right of way.” City finding: “not enough information to determine whether the project includes ground level utilities.”
N N/A N Standard is conditional on a third party’s (PG&E) determination; the City concedes it does not even know
whether such utilities exist.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
29. ODS – Site Planning
(Parking Garage screening)
Type 2 – Personal
interpretation / subjective
judgment; Type 6 –
Request for more
information; not a
No ODS section number quoted; letter recites: parking visible from ROW “screened by continuous landscaping, or other architectural features.” City finding: “not enough information to verify.” N N/A N “Other architectural features” is open-ended/ambiguous; no numbered citation.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
Later, city had to confess these standards produced after vesting, and primarily directed at the downtown rush, are not applicable. This applies to all standards with prefix ODS.
This standard would have the direct effect of blocking access to the parking
30. ODS – Building Design
(Trim Requirements)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites the stucco-foamtrim limitation. City finding: “The plans do not include materials information and as such, additional information is needed to verify compliance.”
N N/A N No numbered citation; Materials board was provided on multiple occasions.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
Later, city had to confess these standards produced after vesting, and primarily directed at the downtown rush, are not applicable. This applies to all standards with prefix ODS in column 1.
31. ODS – Building Design
(Colors and Reflective
Materials)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites the 7-part color/reflectivity list (2–4 colors, 70%/30% areas, LRV 20–80%, no fluorescent/metallic paints, roofing finishes, integral stucco color).
City finding: “The plans do not include information about colors… needed to verify compliance.”
N N/A N Full color, material detail was provided (repeatedly) in the plans.
Later, city had to confess these standards produced after vesting, and primarily directed at the downtown rush, are not applicable. This applies to all standards with prefix ODS.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
32. ODS – Building Design
(Blank Walls)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites: all building walls minimum 15% transparency per floor; “Ground floors without a lobby shall exhibit a variegated façade… no one form represents more than 75% of the surface area.” City finding: “not enough information to verify.”
N N/A N The “lobby”/variegated-façade text; no numbered citation.
Full color & transparency details were provided in the plans STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
33. ODS – Building Design
(Rooftop Utility Screening)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites: roof-mounted equipment screened “by a parapet wall, decorative equipment screen, or other architectural treatment,” visibility judged from 5ʹ above grade at 200ʹ. City finding: “not enough information to verify.”
N N/A N Vesting prior to these standards.
”other architectural treatment” is open-ended, despite these being the city’s poster child objective standards.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
34. ODS – Open Space &
Landscape (Useable
Outdoor Space)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
No ODS section number quoted; letter recites: minimum 100 sf useable open space per dwelling unit plus standards for accessibility, dimensions, balconies, slope, landscaping, amenities.
City finding: “not enough information to verify.”
N N/A N Attempt to apply post vesting standards – again.
Multifamily housing on 6 lots totaling 1.4 acres facially provide far more than 100 sf/unit of outdoor space; no numbered citation.
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
explanation of conflict
within 30/60 days
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
35. ODS – Lighting (Light
and Glare)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
No ODS section number quoted; letter recites foot-candle minima/maxima, shielding, 5-ft light-trespass limit, 60° angle, ≤4500K. City finding: “No lighting information was provided… not enough information to verify.”
N N/A N Attempt to apply post vesting standards – again. City later shifted its explanation to state that it was only ‘advisory’ in case the applicant wanted to submit a wholly new application.
You can’t make this stuff up.
Lighting fixture specifications are building-permit-level details; no numbered citation.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
ATTACHMENT 2 – HOUSING DIVISION: SRMC § 14.16.030 / Resolution 14890 (Table 2.1)
36. Affordable unit Size –
Resolution 14890 § C(1)
Type 2 – Personal
interpretation / subjective
judgment; Type 5 –
Argument over
interpretation / ambiguity
Res. 14890 § C(1) (as recited): affordable units “shall be comparable in size to the market-rate units… ‘comparable size’ means having habitable square footage proportionate to the range of unit sizes provided for market-rate units.” City finding:
affordable unit (976 sf) “is significantly smaller than the average size of the market rate units” (2,544 sf).
N N/A Y Misapplied on its own terms: the Guideline benchmarks the “range” of market-rate sizes, and the 976-sf affordable ADU is identical in size to the five market-rate ADUs (976 sf) within that range — the City instead invented an “average” test. “Comparable”/“proportionate” are also uncodified, judgmentladen resolution terms, not objective code standards.
37. Affordable unit Type
(bedrooms) – Resolution
14890 § C(1)
Type 2 – Personal
interpretation / subjective
judgment; Type 5 –
Argument over
interpretation / ambiguity
Res. 14890 § C(1) (as recited): affordable units “shall possess a distribution of bedroom counts proportionate to that of the market-rate units.” City finding: “The average bedroom count for market rate units is 3.85… The affordable unit contains only 2 bedrooms.”
N N/A Y Again substitutes an “average” test for the Guideline’s “distribution” test; the market-rate mix itself includes 2- bedroom ADUs, so a 2-bedroom affordable unit sits within the distribution. Uncodified, ambiguous resolution language.
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
38. Affordable unit Design
& Materials – Resolution
14890 § C(2)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
Res. 14890 § C(2) (as recited): affordable units “shall be of the same design, materials, amenities, quality of finish, and appearance of the other developed units.” City finding: “the City cannot determine at this time whether the Project is consistent.” N N/A Y “Quality of finish” and “appearance” also require judgment.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
39. Affordable unit Access
to amenities – Resolution
14890 § C(2)
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
Res. 14890 § C(2) (as recited): affordable units “shall have access to the same amenities and common spaces as the market rate units.” City finding: application “does not affirmatively indicate” such access, “so the City cannot determine at this time.” N N/A Y A demand that the applicant “affirmatively indicate” something is a request for more information; the letter simultaneously labels the project “not consistent” while conceding it “cannot determine” — internally contradictory. A dedicated access plan clearly shows access. Pretextual by city.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
ATTACHMENT 3 – FIRE DEPARTMENT (Table 3.1)
40. Fire Apparatus Access
Roads (SRMC Ch. 4; 2022
CFC § 503, App. D; NFPA
standards)
Type 7 – No careful
explanation of conflict
within 30/60 days; Type 6
– Request for more
information; not a
determination of conflict
No code text quoted at all. Entire City finding: “The current plans do not clearly demonstrate compliance with the provisions of these sections of the code.”
N N/A N A single conclusory sentence citing an entire code chapter, a full CFC section, an appendix, and “all applicable National Fire Protection Standards” identifies no specific standard and no specific conflict — the antithesis of the “careful explanation” Ruegg & Ellsworth requires.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
The city did not circulate to all agencies at time of submittal as required by SB 35. Assumedly this is because it considered it a waste of time as it knew it would manufacture ways to deny the application. So why bother with circulating to all required agencies.
41. Fire Flow / Hydrants /
Sprinklers (SRMC Ch. 4;
2022 CFC § 507, Apps. BB,
C, CC; NFPA standards)
Type 7 – No careful
explanation of conflict
within 30/60 days; Type 6
– Request for more
information; not a
determination of conflict
No code text quoted at all. Entire City finding: “The current plans do not clearly demonstrate compliance with the provisions of these sections of the code.”
Location and specifications of fire hydrants are a downstream requirement, as the Fire Department explains each time it receives such plans.
N N/A N Identical boilerplate to row 40; no standard identified, no conflict explained, no benchmark stated.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
The city did not circulate to all agencies at time of submittal as required by SB 35. Assumedly this is because it considered it a waste of time as it knew it would manufacture ways to deny the application. So why bother with circulating to all required agencies.
ATTACHMENT 4 – DEPARTMENT OF PUBLIC WORKS: Title 15 Subdivision Ordinance – NO SUBDIVISION APPLIED FOR (Table 4.1)
42. Utilities and Services
(SRMC § 15.06.020)
Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 5 –
Argument over
interpretation / ambiguity;
Type 6 – Request for more
information; not a
determination of conflict;
Type 7 – No careful
SRMC § 15.06.020 (quoted in letter): “No subdivision of land into two (2) or more lots or parcels for the purpose of development shall be approved by the city unless it is determined that the following utilities and services can be provided…” (water by MMWD; sewer by SRSD/LGVSD; PG&E; communications).
N N/A Y NAF ANALYSIS: The applicant is NOT applying for a subdivision — the city letter’s own project description states the
application “does not appear to propose a subdivision of land.” Per updated Type 6, Title 15 subdivision standards attach to an entitlement not applied for and cannot support an inconsistency finding.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
explanation of conflict
within 30/60 days
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
43. Hillside Streets (SRMC
§§ 15.06.050(g), 15.07.030)
Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days; Type 5
– Argument over
interpretation / ambiguity
SRMC § 15.06.050(g)/15.07.030 (as quoted): “All new streets in hillside areas shall comply with the requirements of Section
15.07.030… No private street leading to a private driveway on a lot shall exceed a grade of eighteen percent (18%).” City finding: “The plans do not indicate the grade of the private street.” N N/A Y NAF ANALYSIS: No subdivision is applied for; Title 15 street standards govern streets created through subdivision. The letter also recasts the shared driveway as a “private street” without analysis — an interpretive leap (Type 5).
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
44. General design
conditions for streets –
curve radius (SRMC §
15.06.070(e))
Type 1 – Discretion
(deviation/approval
mechanism); Type 2 –
Personal interpretation /
subjective judgment; Type
3 – Relief available from
City Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
(NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
SRMC § 15.06.070(e) (quoted in letter): “The center line curve radius on all streets and highways shall conform to accepted engineering standards of design and shall be subject to approval by the city engineer.”
N N/A Y Textbook non-objective standard: “accepted engineering standards” is an uncodified, moving benchmark requiring professional judgment, and compliance is “subject to approval by the city engineer” — pure discretion. NAF ANALYSIS: Title 15 subdivision standard; no subdivision applied for.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
1. Standard Analyzed in City
October 6, 2025 Consistency
Letter
2. Actual Standard
Classification (per 10-Type
Table)
3. Code Recitation – Operative Sentence(s) Incl. Non-Objective / NonAllowable Language & Exact Code Reference (incl. SRMC § 14.12.040 overriding discretion where applicable)
4. Applicable
(External,
Uniform,
Unchanging
Benchmark)?
Y/N
5. Waiver
Applied
For? (Y /
N/A)
6. Code
Reference
Clearly
Quoted in
Oct. 6
Letter?
But not
valid in any
event
7. Accuracy Notes – Misapplication, NAF (Not Applied For) Analysis & State-Law Deemed-Satisfied Notes
explanation of conflict
within 30/60 days
45. Sidewalks and
walkways (SRMC §
15.06.080)
Type 6 (NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 5 –
Argument over
interpretation / ambiguity
SRMC § 15.06.080 (quoted in letter): “Sidewalks and walkways shall be required along both sides of new public or private streets… Sidewalks along streets intended for residential use shall be a minimum of four feet (4ʹ) in width. All sidewalks and walkways shall be designed to comply with the requirements of the Americans with Disability Act (ADA).” City finding: “The plans do not depict a sidewalk along either side of the street.” N N/A Y Although the City here recited an objective numeric benchmark (4-ft width, both sides, ADA) and identified an actual conflict, the standard sits in the Subdivision Ordinance and attaches to “new public or private streets” created by subdivision — the project proposes a shared street/driveway on existing lots and land, with no subdivision (per the City’s own description). NAF ANALYSIS: per updated Type 6, a Title 15 standard for an entitlement not applied for is inapplicable and cannot support an inconsistency determination; the Project is deemed to satisfy it.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).
46. Grading and drainage
(SRMC § 15.06.110)
Type 1 – Discretion
(deviation/approval
mechanism); Type 3 –
Relief available from City
Council, Planning
Commission, Design
Review, city engineer or
other city official in
discretionary review but
denied to SB 35 (Gov.
Code 65913.4(i)(1)); Type 6
(NAF) –
Entitlement/approval not
applied for; standard
inapplicable; Type 6 –
Request for more
information; not a
determination of conflict;
Type 7 – No careful
explanation of conflict
within 30/60 days
SRMC § 15.06.110 (quoted in letter): “Graded slopes shall not exceed two to one (2:1), unless the city engineer determines that a steeper slope is justified… Retaining walls shall not exceed eight feet (8ʹ) in height, unless approved by the Planning Commission.” City finding: “Plans lack sufficient information to determine…” N N/A Y Both prongs carry express discretionary escape valves (city engineer determination; Planning Commission approval)
available in discretionary review but withheld here. NAF ANALYSIS: Title 15 subdivision standard; no subdivision applied for.
STATE-LAW NOTE (information request): Gov. Code §
65913.4(c)(1) requires the City to make a consistency or inconsistency DETERMINATION within the 30/60-day statutory period. A request for more information / “insufficient
information” statement is “not a determination that the project conflicted” with any standard (CA Attorney General to City of Elk Grove, Mar. 16, 2023, p. 3). Because no inconsistency determination was made as to this standard, none exists — and the Project is DEEMED TO SATISFY this standard by operation of law (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 318; AG Elk Grove Letter: “City failed to determine in a timely and adequate manner that the Project conflicted … so … Project was deemed to satisfy the standard”).