RECENT DECISIONS AND CASES

WORTH WATCHING

Vivian Kahn, FAICP

Dyett & Bhatia, Oakland, CA
APA California 2022 Conference
October 3, 2022
California Renters Legal Advocacy and Education
Fund (CARLA) v. City of San Mateo

 City denied 4-story 10-unit apartment building finding

project violates MF Design Guidelines requiring setback
at upper floors of project higher than neighboring
structures
 CARLA sues alleging San Mateo violated HAA
 Trial court denies CARLA petition on grounds that :
 Guidelines were objective standards
 HAA unenforceable as “impermissible intrusion into the City’s municipal
affairs under home rule doctrine of the California Constitution (Art. XI,
Sec. 5 (a)); and
 HAA violates prohibition on delegation of municipal affairs to private
parties (Art. XI, Sec. 11 (a)).
California Renters Legal Advocacy and Education
Fund (CARLA) v. City of San Mateo
 CARLA appeals asserting that HAA:
 Constitutionally applies to charter cities;
 Doesn’t infringe on home rule authority; and
 Doesn’t delegate municipal function to private party;
and,
 There is substantial evidence from which reasonable
person could conclude project meets all applicable
standards, and
 Design guidelines are subjective policies and not
objective standards.
 State AG intervenes on CARLA’s behalf
 A Little History…
 Housing Accountability Act (the “Anti-NIMBY Law”)
Government Code Sec. 65589.5 adopted 1982 to limit ability
of local government to restrict new housing development that:
 Meets “objective general plan and zoning standards:
 Would not cause “significant, adverse impact” that can’t be mitigated
 Meets standards of CEQA and Coastal Act
 Sequoyah Hills Homeowners vs. Oakland (1993)
 Honchariw v. County of Stanislaus (2011)
“The statute expressly defines "housing development project" to include
residential units (see § 65589.5, subd. (h)), and nothing in that definition
limits the reach of the phrase "housing development project" to projects
involving affordable housing.”
 2016-2017 housing package
 Tightened definition of “objective standards”
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 Raised bar for disapproval
 Housing Accountability Act

Objective: Significantly increase the approval and construction of new

housing…by meaningfully and effectively curbing the capability of local
governments to deny, reduce the density for, or render infeasible housing
development projects…
Gov’t Code §65589.5 (a)(1)(K)

Applicability: Multi-unit housing, mixed-use w. 2/3 of floor area residential,

transitional and supportive housing, emergency shelters.
Gov’t Code §65589.5 (h)(2))
Effects:
 No reduction in density if project complies with “objective” general plan,
zoning, and subdivision standards and criteria, including design review
standards.
 If project complies with “objective” general plan, zoning, and subdivision
standards, city can only reduce density or deny if it would cause “specific
adverse impact” to public health & safety that can’t be mitigated.
Gov’t Code§65589.5 (j)(1)
 Changes in City’s “Burden of Proof”
 Decision to deny or approve compliant project
must be supported by preponderance of
evidence, not just substantial evidence
 Project must be deemed consistent w. applicable
objective standards if there is substantial
evidence to allow reasonable person to conclude
project is consistent

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 Key Definitions
Objective standards  involve no personal or subjective judgement 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 …and the public official prior to submittal. 
Gov’t Code §65913.4(5)

Specific, adverse impact is “A significant, quantifiable, direct, and unavoidable

impact, based on objective, identified, written public health or safety standards,
policies, or conditions as they existed on the date the application was deemed
complete…
Gov’t Code§65589.5 (d)(2)

 The use of available resources to achieve a target(the objective), within a

specified timeframe. A collection of goals is usually termed as an objective.
Policy appraisals and performance appraisals are based on objectives,
which can be considered to be the foundation for planning and strategic
activities. 
 Neutral: An unbiased attitude or opinion that is based on factual evidence.
Black’s Law Dictionary 
 Exceptions

 City makes findings supported by preponderance of the evidence

(not just substantial evidence):
 Development would have a specific, adverse impact on public health or
safety unless it was denied or reduced in density; and
 No feasible method exists to mitigate or avoid the adverse impact
 Developer may submit evidence supporting consistency
Gov’t Code§65589.5 (j)(1)
 Subjective Coastal Act requirement still apply
Kalnel Gardens LLC v. City of LA (2016)
 CEQA applies unless “by right” project
Schellinger Bros. v. City of Sebastopol (2009)
Does Project Meet Objective Standards?
 Density requirements
✓ Deemed compliant if density,
excluding any density bonuses, is
within maximum density allowed by
general plan
 Objective zoning standards
 Objective design review
standards
✓ Uniformly verifiable by reference to
an external and uniform benchmark
or criterion
✓ Involving no personal or subjective
judgment

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 The Decision
 City bears “burden of proof” that its decision
conformed to HAA
 ”Pivotal question” is whether guidelines qualify as
”applicable, objective general plan, zoning and
subdivision standards and criteria”
✓ Guidelines ARE applicable but ambiguous and not
objective
✓ Deference principle inapplicable because record fails to
show “long-standing and consistent” interpretation
 HAA is “reasonably related” to resolving matter of
state concern and “narrowly tailored” to avoid
unnecessary interference.
 Takeaways and Tips
 Design review standards need not be incorporated in
General Plan but may be adopted to implement Plan
policies and incorporated “by reference” as ‘’applicable,
objective general plan and zoning standards and
criteria’”
 Guidelines must provide “objective” standards that are
uniformly verifiable by reference to a uniform benchmark
or criterion and do not involve “personal or subjective
judgment by a public official”
 Cities may establish and enforce policies and
development standards appropriate to local
circumstances as long as those policies and standards
allow for meeting RHNA
 Ruegg & Ellsworth v. City of Berkeley
 Ruegg applies for 135-unit mixed use project w. 33,000 sq. ft. of
retail and parking on part of site City designated as location of West
Berkeley Shellmound
 Draft EIR found:
✓ Most of Shellmound demolished and actual location unclear;
✓ Borings and other sources found no evidence that remnants exist but intact
deposits ”could be present in areas...not previously excavated” and further
excavation ”could potentially unearth previously unidentified” intact deposits
 Applicant asks City to suspend processing pending passage of SB
35; requests ministerial approval of revised project with 260 units
including 50% affordable over 27,500 sq. ft. of retail and parking
 City denies SB 35 application:
✓ Inapplicable to charter city and mixed-use development; and
✓ Failure to comply with city requirements re. affordable housing and traffic impacts
and because of need to demolish historic structure
 The Decision
Appellate Court reversed trial court denial of Ruegg’s
petition:
 Legislature’s choice of language makes obvious its intent to
constrain local government discretion by expressly limiting authority
over applications for affordable housing meeting specified criteria
 Charter cities are authorized to govern themselves “as to those
matters deemed municipal affairs” but Section 65913.4 (SB 35)
addresses a matter of statewide concern, which justifies the law’s
impact on authority regarding municipal affairs
 Legislative findings contained in HAA are relevant in construing
section 65913.4, which was enacted at the same time as the 2017
HAA amendments and deal with an aspect of the same issue
 Old East Davis Neighborhood Assoc. v.
City of Davis
Appellate Court upheld City approval of 4-story mixed-use
Trackside project rejecting neighbors’ assertion that heights
and setbacks were inconsistent with design guidelines for
transition area and project not “in scale” with surrounding
neighborhood
 City found project consistent with general plan and
applicable specific plan despite subjective design guidelines
related to height, setbacks, and neighborhood scale
 Court found transition policy “largely amorphous” and
substantial evidence in records supports agency’s findings
 Aleksandr Reznitskiy et al. v.
County of Marin
 Planning Commission granted neighbors’ appeal of Staff-
approved 3,872 sq. ft. home on 1.76 acre lot
 Board of Supervisors rejects applicant Reznitskiy’s appeal
that downsizing was unnecessary and denial violated HAA
 Trial court rejects appellant claim that project was project
under HAA that met all applicable standards but even if HAA
did not apply findings to deny were not supported by
substantial evidence
 Appellate Court rejects appeal after detailed review of
legislative history including statutory context and legislative
history including support for objective of encouraging more
housing by limiting ability to approve lower-density projects
 Takeaways and Tips
 Assume, for the time being, that:
✓ HAA does not apply to development of a
single unit on an existing lot BUT does apply
to development of a subdivision with multiple
single-family detached units (Honchariw I)
✓ Development of a single-family home AND
an ADU is not a “housing development
project” under HAA
 New Harvest Christian Fellowship v.
City of Salinas
 New Harvest proposes using existing building in
Downtown Core Area for first floor worship service w.
classrooms, storage and kitchen on second floor
 City denies CUP to operate religious assembly on ground
floor per provision prohibiting clubs, lodges, and similar
use on ground floor facing Main Street in Downtown Core:
✓ Staff recommends modified application with active use at front
✓ City amends Code to specifically allow assembly uses with café or
bookstore in front of spaces
 Trial court rejects New Harvest suit alleging violation of
RLUIPA’s equal terms and substantial burden provisions
 Religious Land Use and Institutionalized Persons
Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et seq.
 No government shall impose or implement a land use
regulation in a manner that imposes a substantial
burden on the religious exercise of a person, including
a religious assembly or institution, unless the
government demonstrates that imposition of the burden
on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.
 "[n]o government shall impose or implement a land use
regulation in a manner that treats a religious assembly
or institution on less than equal terms with a
nonreligious assembly or institution."
42 U.S.C. §§2000cc (a) (1) and (b)(1)
 The Decision
 Rejects substantial burden claim because New
Harvest:
✓ Could have conducted worship on second floor or at
rear of first floor;
✓ Not precluded from using other sites in city;
✓ Was on notice at time of purchase that Code
prohibited worship on first floor
 Code prohibition applied to private but not public
assembly uses and, therefore, treats religious
assemblies on less than equal terms with
secular assemblies
 Takeaways and Tips
 Ensure purposes of adopted plans and
regulations are provide clear rationale for
limitations
 Review and revise standards as needed to
ensure religious and secular uses subject to
same requirements unless:
 Compelling government interest for distinctions
 Regulation is least restrictive means necessary
 Allow for reasonable alternatives
 Provide means for modifying requirements when
necessary
 City of Austin v.
Reagan National Advertising
 Austin code distinguishes signs that are physically on the premises
of the place being advertised and “offsite signs”, prohibits new offsite
signs, but allows existing off-premises signs to remain as they are
not altered to “increase the degree of the existing nonconformity.”
 Austin rejected an Reagan’s applications to digitize several pre-
existing offsite signs.
 Reagan sued, alleging a First Amendment violation
 Fifth Circuit reversed trial court decision upholding City holding that
regulation fails strict scrutiny.
 Supreme Court reverses on 6-3 vote
✓ Regulation not subject to strict scrutiny
✓ City’s on-/off-premises distinction is facially content neutral
 The Cases
 California Renters Legal Advocacy & Education Fund v. City of San Mateo v. City
of San Mateo, Cal: Court of Appeal, 68 Cal.App.5th 820 (1st Appellate Dist., 4th
Div.), 2021
https://law.justia.com/cases/california/court-of-appeal/2021/a159320.html
 City of Austin, Texas v. Reagan National Advertising of Austin
https://www.supremecourt.gov/opinions/21pdf/20-1029_i42k.pdf
 Old East Davis Neighborhood Association v. City of Davis, 43 Cal.App.5th 895
(2022) https://law.justia.com/cases/california/court-of-appeal/2022/c090117.html
 Aleksandr Reznitskiy v. County of Marin, 79 Cal.App.5th 1016 (2022)
https://law.justia.com/cases/california/court-of-appeal/2022/a161813.html
 New Harvest Christian Fellowship v. City of Salinas, Court of Appeals, 9th Circuit,
2022
https://scholar.google.com/scholar_case?case=4373550564989899678&hl=en&
as_sdt=6&as_vis=1&oi=scholar

 Ruegg & Ellsworth v. City of Berkeley, 63 Cal.App.5th 277 (2021)

https://law.justia.com/cases/california/court-of-appeal/2021/a159218.html
 APA California Amicus Committee
 Members: 
 Bill Abbott
 Al Herson
 Tom Jacobson
 Barb Kautz
 Steve Preston
 David Snow
 Eric Phillips
 Vivian Kahn, Chair