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1 Michelle Marchetta Kenyon (SBN 127969) FILING FEE EXEMPT PURSUANT TO
E-mail: mkenyon@bwslaw.com GOVERNMENT CODE § 6103
2 Stephen E. Velyvis (SBN 205064)
E-mail: svelyvis@bwslaw.com
3 Deepa Sharma (SBN 313183)
E-mail: dsharma@bwslaw.com
4 BURKE, WILLIAMS & SORENSEN, LLP
1 California Street, Suite 3050
5 San Francisco, California 94111-5432
Tel: 415.655.8100 Fax: 415.655.8099
6
Attorneys for Respondents/Defendants
7 CITY COUNCIL OF THE CITY OF PACIFICA,
CITY OF PACIFICA
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
12 COALITION OF PACIFICANS FOR AN Case No. 20-CIV-05719
UPDATED PLAN; KRISTIN CRAMER, et
13 al., RESPONDENT CITY OF PACIFICA’S
AND REAL PARTIES IN INTEREST’S
14 Plaintiffs and Petitioners, JOINT RESPONSE TO PETITIONERS’
FEBRUARY 13TH BRIEF REGARDING
15 v. HOUSING ACCOUNTABILITY ACT
ISSUES
16 CITY COUNCIL OF THE CITY OF
PACIFICA, CITY OF PACIFICA, et al., Assigned for All Purposes to:
17 Hon. Nancy L. Fineman
Defendants and Respondents. Department 4
18
Action Filed: December 21, 2020
19 MONTEREY ROAD PACIFICA, LLC, Trial Date: TBD
JAVIER CHAVERRIA VISTA MAR
20 DEVELOPMENT, and DOES 1 through 20,
inclusive
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22 Real Parties in Interest and
Defendants
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1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ................................................................................................................. II
4 II. LEGAL ARGUMENT ...........................................................................................................2
5 A. Gov. Code Section 65589.5(p) Applies to Petitioners’ Pending Fee Motion ............2
6 B. Whether the Vista Mar Project Site has Habitat for Special Status Species is
Not Relevant To Subsection (p)’s General Protection the City and Real
7 Parties Urge the Court to Apply Here. .......................................................................5
8 C. Section 65589.5(p) Applies to All Housing Development Projects,
Including Those With Both Affordable and Market Rate Units like the Vista
9 Mar Project. ................................................................................................................7
10 D. Petitioners’ Pending Fee Motion Should Be Denied As Upon Giving Due
Weight To Subsection (p)(1)’s Factors It Is Clear That The Requisite
11 Significant Benefit Has Not Been Conferred On The General Public Or A
Large Class Of Persons. .............................................................................................8
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1. The City’s Approval of the Vista Mar Project Furthers The HAA
13 Policies Set Forth in Subdivisions (a), (b), and (c) of Section
65589.5. ..........................................................................................................8
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2. The Vista Mar Project Site is Suitable for a Housing Development. .............9
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3. City’s Approval of the Vista Mar Project Was Extremely
16 Reasonable. ..................................................................................................10
17 III. CONCLUSION ....................................................................................................................11
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1 TABLE OF AUTHORITIES
2 Page(s)
3 State Cases
4 City of Clovis v. County of Fresno
5 (2014) 222 Cal. App. 4th 1469 .................................................................................................. 4
6 Coast Bank v. Holmes
(1971) 19 Cal. App. 3d 581 ....................................................................................................... 4
7
Honchariw v. County of Stanislaus
8 (2011) 200 Cal.App.4th 1066 .................................................................................................... 7
9 Leenay v. Superior Court
(2022) 81 Cal.App.5th 553 ........................................................................................................ 3
10
11 Tellez v. Rich Voss Trucking, Inc.
(2015) 240 Cal.App.4th 1052 .................................................................................................... 3
12
Western States Petroleum Ass’n v. Superior Court
13 (1995) 9 Cal.4th 559.................................................................................................................. 9
14 State Statutes
15 Code of Civil Procedure
16 Section 1021.5 .................................................................................................................. passim
Section 1094.5(c) ...................................................................................................................... 9
17 Section 1094.5(e) ...................................................................................................................... 9
18 Gov't Code
Section 65589.5 ................................................................................................................. 1, 4, 8
19 Section 65589.5(b) .................................................................................................................... 8
Section 65589.5(d) ............................................................................................................ 4, 7, 8
20
Section 65589.5(h)(2) ................................................................................................................ 7
21 Section 65589.5(h)(6)(D)(i)(I)(ia) ............................................................................................. 6
Section 65589.5(h)(6)(E)(i)(I) ................................................................................................... 6
22 Section 65589.5(p) ........................................................................................................... passim
Section 65589.5(p)(1) .................................................................................................... 1, 2, 5, 8
23 Section 65589i.5(j)(1) ............................................................................................................... 9
Section 65913.4(a)(6)(K) .......................................................................................................... 6
24
Section 655890.5(p) .................................................................................................................. 4
25
Housing Accountability Act ............................................................................................................ 4
26
Other Authorities
27
California Rules of Court Rule 8.104.............................................................................................. 3
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1 California Rules of Court, Rule 3.1308(a)(1)’s ............................................................................... 3
2 Local Rule 3.403 ............................................................................................................................. 3
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1 I. INTRODUCTION
2 Defendants and Respondents CITY COUNCIL OF THE CITY OF PACIFICA and the
3 CITY OF PACIFICA (collectively, the “City”) and Real Parties in Interest MONTEREY ROAD
4 PACIFICA, LLC, VISTAMAR DEVELOPMENT and JAVIER CHAVARRIA (collectively, the
5 “Real Parties”) submit this joint brief in response to the Petitioners’ February 13th brief in support
6 of their pending motion for attorneys’ fees pursuant to Code of Civil Procedure Section 1021.5.
7 In their February 13th brief, Petitioners’ offer three arguments in support of their
8 preliminary contention that Government Code Section 65589.5(p)(1) doesn’t even apply here in
9 the first place. All three of those arguments completely miss the mark as they are unsupported and
10 unpersuasive. As demonstrated below, the City and Real Parties do not ask this court to
11 retroactively apply Section 65589.5(p)(1) to the Court’s December 2022 Judgment on Petitioners’
12 CEQA claims or any other prior final determination of this Court, but rather, simply ask this Court
13 to apply Section 65589.5(p)(1) to Petitioners’ pending fee motion. Petitioners’ fee motion is still
14 pending because the Court expressly required the preparation of a formal written order and for that
15 order to be signed and entered by the Court before the Court’s decision on the motion is final and
16 the only formal written order signed and entered by the Court to date was the December 5, 2023
17 order denying the fee motion without prejudice and requesting additional briefing and hearing.
18 Petitioners also assert that the presence of habitat for special status species on the project
19 site and the project’s alleged lack of affordability render Section 65589.5 inapplicable. Not so.
20 Section 65589.5(p) sets up two separate and distinct protections for local governments who have
21 been sued by neighbors or interest groups for approving a housing development project, a general
22 protection that applies to all fee motions in cases challenging approval of a housing development
23 project, and a heightened protection for a special class of very dense, transit-oriented infill projects on
24 sites lacking such habitat and other environmental criteria. The fact that the Vista Mar Project doesn’t
25 qualify for subsection (p)’s heightened protection doesn’t mean subsection (p) doesn’t apply at all.
26 And, notwithstanding the fact that the Vista Mar Project must make one of its eight units affordable by
27 offering it for sale below market rate, there is no affordability requirement in subsection (p) as it
28 applies to all housing development projects irrespective of their level of affordability.
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1 Finally, on the merits of the housing factors subsection (p) requires the court to give due
2 weight to, Petitioners ignore the extensive record evidence demonstrating that the Vista Mar
3 Project has long been planned and is suitable for housing and that the City’s project review and
4 approval process was extremely reasonable. Instead, Petitioners impermissibly claim the Project
5 doesn’t satisfy any of the relevant housing factors based on misconceptions about the HAA,
6 inadmissible extra-record evidence, and CEQA impacts the Legislature chose to purposefully omit
7 from the unique balancing required by new subsection (p). Upon giving due weight to the HAA
8 policies, the suitability of the Vista Mar project site for a housing development and the reasonableness
9 of the City’s review and approval of the subject Vista Mar project as required by Section
10 65589.5(p)(1), it is clear that the requisite significant benefit has not been conferred on the general
11 public or a large class of persons here and as a result Petitioners are not entitled to a fee award at all.
12 II. LEGAL ARGUMENT
13 A. Gov. Code Section 65589.5(p) Applies to Petitioners’ Pending Fee Motion
14 Section 65589.5(p) plainly says it applies “[u]pon any motion for an award of attorney’s
15 fees pursuant to Section 1021.5 of the Code of Civil Procedure, in a case challenging a local
16 agency’s approval of a housing development project.” (Emphasis added.) Because Petitioners’ fee
17 motion is still pending and no final, appealable order has been signed and entered on the motion,
18 this is not a question about the retroactive application of a new law as Petitioners’ contend, but
19 rather, the commonplace application of a new law to an open, unresolved motion.
20 Petitioners do not argue that Section 65589.5(p)(1)’s key gatekeeper language is
21 ambiguous or that this case somehow falls outside of the scope of this provision. Instead, they
22 look beyond the unambiguous plain language of the statute and argue that the Court already made
23 a “prior judicial fee determination finding” regarding Code of Civil Procedure Section 1021.5’s
24 “significant benefit” criterion before new Section 65589.5(p) became effective rendering its
25 application now inappropriately retroactive. Even if this “prior judicial fee determination finding”
26 was the applicable standard (it is not, Petitioners created it out of whole cloth, and “upon any
27 motion” is the clear standard ), Petitioners’ entire argument hinges on their claim that the fact “the
28 Court has not signed its formal order has no bearing here.” That claim is not only unsupported, it
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1 is wrong.
2 It is unsupported because the two cases Petitioners rely on, Tellez v. Rich Voss Trucking,
3 Inc. (2015) 240 Cal.App.4th 1052 and Leenay v. Superior Court (2022) 81 Cal.App.5th 553, are
4 inapposite and distinguishable. Tellez and Leenay stand for the unremarkable proposition that in
5 courts that offer tentative rulings on law and motion matters and have local rules making clear
6 they follow the California Rules of Court, rule 3.1308(a)(1)’s “notice of intent to appear required”
7 procedure, a tentative ruling will automatically become the order of the court if the party wishing
8 to contest the tentative ruling does not provide timely notice of the party’s intention to appear to
9 contest the tentative to all other parties and the court before 4 p.m. on the court day before the
10 hearing. (Tellez, supra, 240 Cal.App.4th at 1060 and fn. 10.)
11 But the record here is clear that not only does this Court offer such tentative rulings and
12 require such a notice of intent to appear procedure (see Local Rule 3.403), both the City and Real
13 Parties timely contested both of the tentative rulings issued to date on Petitioners’ pending fee
14 motion (see August 29, 2023 Minute Order [“Defendants City of Pacifica and Real Parties in
15 Interest contested the Court’s Tentative Ruling”]; February 6, 2024 Minute Order [“Respondent
16 contests the Tentative Ruling. Real Parties in Interest contests the Tentative Ruling”].) As such,
17 those tentative rulings on Petitioners’ fee motion did not automatically become the order of the
18 Court and Petitioners’ motion is still pending. There are two additional, equally powerful reasons
19 why neither the Court’s August 28, 2023 Tentative Ruling on Petitioners’ fee motion nor the
20 Court’s August 29, 2023 Minute Order modifying and preliminarily adopting that Tentative
21 Ruling are final.
22 First, per Rule 8.104 of the California Rules of Court, where, like here, the underlying
23 decision at issue is an order granting or denying a motion and the motion was preliminarily
24 granted by way of a minute order directing that a written order be prepared, the entry date of that
25 written order for purposes of determining its finality and for triggering the applicable 60-day
26 appeal period “is the date the signed order is filed.” Both the Court’s August 28, 2023 Tentative
27 Ruling on Petitioners’ pending fee motion and the August 29, 2023 Minute Order modifying and
28 adopting that Tentative Ruling clearly and expressly direct a written order be prepared – the
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1 8.28.23 Tentative Ruling states “Counsel for plaintiffs shall prepare a written order consistent with
2 the Court’s ruling and for the court’s signature” and the 8.29.23 Minute Order states “Party shall
3 prepare formal order consistent w/order herein; Counsel for Plaintiffs.” Second, the court did sign
4 and enter an order on December 5, 2023, denying Petitioners fee motion without prejudice and
5 requesting supplemental briefing and a further hearing, which is continuing now through the
6 instant briefing on these Housing Accountability Act issues.
7 Petitioners’ last argument claiming the City’s and Real Party’s position is “convoluted”
8 and citing to subsection (d) of Section 65589.5 is not only very confusing it is also wrong. On the
9 bottom of page 5 and on to the top of page 6 of their February 13th brief, Petitioners confusingly
10 claim that the City can’t ask the Court to apply new subsection (p) in the context of this fee motion
11 because the City did not itself first comply with subdivision (d) when it approved the Vista Mar
12 housing development project. Further, Petitioners incorrectly claim subdivision (d) only became
13 effective January 1, 2024 and thus did not exist in November 2020 when the City approved the
14 project. This argument is confusing and wrong because not only has subdivision (d) been a part of
15 the HAA since it was first adopted in 1982, but the City had no reason to consider compliance
16 with subsection (d) in November 2020 when it approved the Vista Mar project because that
17 subsection only pertains to local agency decisions to disapprove a housing development project
18 and as the Court is well aware the City approved the Vista Mar project in November 2020.
19 Finally, assuming arguendo that this case concerned the retroactive application of Section
20 655890.5(p), it does not, if a statute is remedial or procedural in nature like subsection (p) here it
21 may be applied in litigation pending when it came into effect, even if the events underlying the
22 cause of action took place before it came into effect, so long as it does not create a new cause of
23 action, deprive a defendant a defense on the merits, or alter a party’s vested rights (City of Clovis
24 v. County of Fresno (2014) 222 Cal. App. 4th 1469, 1471; see also, Coast Bank v. Holmes (1971)
25 19 Cal. App. 3d 581, 594 [“The application of a statute effecting a change in ‘procedure’ or
26 ‘remedy’ to pending litigation is not violative of the principle of nonretroactivity even though the
27 event giving rise to the cause of action antedated the statute.”].)
28 In sum, Petitioners’ motion remains open, unresolved, and is still pending, and as a result
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1 Section 65589.5(p)(1) applies directly (not retroactively) because the motion satisfies every aspect
2 of the key gatekeeper language – “upon any motion for an award of attorneys’ fees pursuant to
3 Section 1021.5 of the Code of Civil Procedure, in a case challenging a local agency’s approval of
4 a housing development project.”
5 B. Whether the Vista Mar Project Site has Habitat for Special Status Species is Not
Relevant To Subsection (p)’s General Protection the City and Real Parties Urge the
6 Court to Apply Here.
7 Petitioners’ claim, that the Vista Mar project does not qualify for the protections afforded
8 by subsection (p) because a biologist they hired opined that the Vista Mar project site contains
9 habitat for special status species, is a classic red herring that is intended to confuse the Court.
10 What Petitioners fail to acknowledge, let alone point out, is that in adopting new subsection (p),
11 the Legislature set up two separate and distinct protections for local governments who have been
12 sued by neighbors or interest groups for approving a housing development project. The first, general
13 or base level of protection is laid out in the first sentence of subsection (p)(1) which requires the court,
14 in weighing whether a significant benefit has been conferred on the general public or a large class of
15 persons, to give due weight to the degree to which the local agency’s approval furthers HAA policies,
16 the suitability of the site for a housing development and the reasonableness of the local agency’s
17 decision to approve the housing development project. It is this first, general protection that the City
18 and Real Parties assert applies here and requires the Court to give due weight to these HAA-focused
19 factors. Nowhere in that first sentence does the Legislature mention the presence or absence of special
20 status species habitat let alone make the absence of such habitat a prerequisite for this first, general
21 protection to apply.
22 The second, heightened level of protection is laid out in the second sentence of subsection
23 (p)(1) which does, through two cross-references to the environmental criteria that projects under SB 35
24 must meet, identify the absence of habitat for special status species as one of a number of prerequisites
25 that must be met before the heightened protection in the second sentence applies. The heightened
26 nature of this second protection is evident by its use of fairly extreme language where the Legislature
27 states “that attorneys’ fees and costs should rarely, if ever, be awarded if a local agency, acting in
28 good faith, approved a housing development project that satisfies conditions established in
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1 [subsections (h)(6)(D)(i)(I-III) and (h)(6)(E)(i-iii)].” (Emphasis added.) This second sentence of
2 subsection (p) and its heightened protection identifies the absence of habitat for special status species
3 as one of the conditions through the cross references to subsection (h)(6)(D)(i)(I)(ia) and subsection
4 (h)(6)(E)(i)(I), which both include cross references to Government Code Section 65913.4(a)(6)(K)
5 which reads “[h]abitat for protected species identified as candidate, sensitive, or species of special
6 status by state or federal agencies, fully protected species, or species protected by the federal
7 Endangered Species Act [], the California Endangered Species Act [], or the Native Plant Protection
8 Act [].” Another condition that must be met in order for the heightened protection in the second
9 sentence of subsection (p) to apply is that the housing development project at issue must have a density
10 that meets or exceeds 15 dwelling units per acre. (See 65589.5(h)(6)(D)(i)(III) and (h)(6)(E)(iii).
11 The Vista Mar housing development project proposes the construction of eight units on the
12 site’s 1.2 acres and, as such, the project fails to meet the heightened protection’s minimum density
13 requirement. But, as counsel for the City explained to the Court at the hearing on February 6th, the fact
14 that a project fails to meet the minimum density requirement or any of the other numerous criteria that
15 are prerequisites for subsection (p)’s heightened protection does not mean the project doesn’t qualify
16 for the general, base protection afforded by subsection (p)’s first sentence. In other words, subsection
17 (p)’s general protections requiring Courts to give due weight to the HAA-centric factors apply upon
18 any CCP Section 1021.5 fee motion in a case challenging a local agencies approval of a housing
19 development project, whereas subsection (p)’s heightened protections apply only to the type of dense,
20 transit-oriented, infill projects on innocuous sites that meet all of the conditions in the second sentence
21 of subsection (p). Not only does the plain language of subsection (p) clearly lay out these separate,
22 distinct protections, so too does the Legislative History, which summarizes the two protections in
23 separate, distinct items listed as AB 1633’s eight “Major Provisions” and, in summarizing subsection
24 (p) the Legislature noted that it “provides some additional protections for local governments who have
25 been sued by neighbors or interest groups for approving a housing development project.” If subsection
26 (p) had but a single protection the Legislature would not have described (p) as providing additional
27 “protections” using the plural form of the word. (See 3d reading analysis of Assem. Bill No. 1633
28 (2022-2023 Reg. Sess.) as amended April 27, 2023, pp. 1-4) which is included as Attachment 1 to
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1 this brief.)
2 C. Section 65589.5(p) Applies to All Housing Development Projects, Including Those
With Both Affordable and Market Rate Units like the Vista Mar Project.
3
4 Petitioners stubbornly repeat their unsupported arguments that Section 65589.5(p) is
5 limited to agency consideration of projects for very low, low- or moderate-income households and
6 that subsection (p) doesn’t apply here because the Vista Mar project is for above-moderate income
7 households. Petitioners continue to get both arguments wrong.
8 First, there is no affordable housing requirement in Section 65589.5(p). Subsection (p)
9 applies without limitation to all “housing development projects” which subsections (d) and (h)(2)
10 combine to define as projects that entail any of the following: residential units only; mixed-use
11 developments consisting of residential and nonresidential uses with at least two-thirds of the
12 square footage designated for residential use; transitional housing or supportive housing,
13 farmworker housing, and emergency shelters. (Gov’t Code § 65589.5(d) and (h)(2).) Accordingly,
14 there simply is no affordable housing requirement here. The HAA applies to both market rate and
15 affordable housing projects alike. (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th
16 1066, 1073 [determining an eight-unit, market rate development was for “[r]esidential units only”
17 and thus was a “housing development project” as defined by section 65589.5(h)(2)].) Like the
18 project at issue in Honchariw, the Vista Mar Project is also an eight-unit development for
19 residential units only and thus qualifies as a “housing development project” subject to the HAA’s
20 provisions, including newly enacted subsection (p) at issue here.
21 Second, while it doesn’t matter for purposes of determining whether the Vista Mar Project
22 qualifies as a “housing development project” and thus is subject to subsection (p)’s protections,
23 the Vista Mar Project is not strictly an “above-moderate income” project as Petitioners assert. To
24 the contrary, one of the eight proposed Vista Mar units will be an affordable/below-market unit
25 with contractual protections to ensure the long-term affordability of the unit for no less than 45
26 years.
27 In sum, Petitioners confuse Section 65589.5(d), which pertains to and severely limits a
28 local agency’s ability to disapprove housing development projects for very low, low-, or
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1 moderate-income households, with subsection (p), which applies evenly to any/all CCP Section
2 1021.5 fee motions brought in cases challenging a local agency’s approval of housing
3 development projects irrespective of their affordability. Section 65589.5(d) does not apply here
4 and subsection (p) does as Petitioners’ underlying challenge was to the City’s approval of the
5 Vista Mar housing development project.
6 D. Petitioners’ Pending Fee Motion Should Be Denied As Upon Giving Due Weight To
Subsection (p)(1)’s Factors It Is Clear That The Requisite Significant Benefit Has Not
7 Been Conferred On The General Public Or A Large Class Of Persons.
8 1. The City’s Approval of the Vista Mar Project Furthers The HAA Policies Set
Forth in Subdivisions (a), (b), and (c) of Section 65589.5.
9
10 As demonstrated in the City’s and Real Parties Further Joint Brief filed on February 13th,
11 subdivision (a) of the HAA declares that California has a housing supply and affordability crisis of
12 historic proportions and aims to combat the crisis through policies geared to significantly increase
13 the approval and construction of new housing for all economic segments. The Vista Mar housing
14 development project is consistent with and furthers all of these policies by providing eight for-sale
15 housing units, including one affordable/below market rate unit. Petitioners’ claims to the contrary
16 are without merit as they ignore the fact that 12.5% of the project’s units will be sold below
17 market rate and impermissibly equate partial success on their CEQA claims with evidence of or a
18 finding that the proposed housing would be unsafe.
19 Petitioners’ focus on and arguments that the Vista Mar Project does not further the policies
20 in subdivision (b) of the HAA are also misplaced. Section 65589.5(b) and subdivision (d) cross-
21 referenced therein include policies strictly limiting an agency’s ability to disapprove housing
22 development projects. But the City approved the Vista Mar Project and mandated it include a
23 below market rate unit and, as such, the City clearly furthered the policy in (b) aimed at limiting
24 decisions to disapprove housing.
25 Finally, the City and Real Parties have demonstrated that because the Vista Mar Project
26 site does not contain any prime agricultural soil and involves infill development in an existing
27 urban area long planned for residential uses it also furthers the policies of subdivision (c).
28 Petitioners, on the other hand, ignore those key facts and introduce and rely on inadmissible,
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1 extra-record evidence in the City’s newly updated General Plan knowing full well: (1) extra-
2 record evidence is not admissible in administrative mandamus proceedings (see CCP § 1094.5(c),
3 (e); Western States Petroleum Ass’n v. Superior Court (1995) 9 Cal.4th 559, 578); and (2) that the
4 HAA makes clear that only the objective general plan, zoning, and subdivision standards and
5 criteria in effect at the time the application was deemed complete are relevant (see Gov’t Code §
6 65589i.5(j)(1)) and the Vista Mar Project application was deemed complete on September 30,
7 2015, well before the City adopted its updated General Plan in July 2022. In sum, the City’s
8 approval of the Vista Mar Project furthered all the applicable HAA policies in subsections (a), (b) and
9 (c) and the Court must give this factor due weight in re-evaluating whether Petitioners have satisfied
10 Section 1021.5’s substantial benefit prong.
11 2. The Vista Mar Project Site is Suitable for a Housing Development.
12 Pursuant to the City’s General Plan, Housing Element and related zoning and design
13 standards applicable at the time the Vista Mar Project application was deemed complete in
14 September 2015, the record before this Court is crystal clear – the Vista Mar Project site is suitable for
15 housing development. Indeed, the Project site consists of Urban and Built-Up Land, has no prime
16 farmland, unique farmland or farmland of statewide importance that will be impacted or converted and
17 has long been planned for residential development. The site is designated Low Density Residential,
18 three to nine dwelling units/acre, zoned Multiple-Family Residential (R-3) and specifically identified
19 as Potential Housing Development Site number 8 and counted on to provide residential units to meet
20 the regional housing production allocated to the City. By all relevant accounts, the Vista Mar Project
21 site is extremely suitable for residential housing development.
22 Petitioners ignore all of those facts and point inappropriately to the project’s potential CEQA
23 impacts and the City’s updated General Plan in asserting that the project site isn’t suitable for housing.
24 But unlike in subsection (k) where the Legislature expressly permits courts to consider CEQA-related
25 factors in assessing whether to award fees in cases involving challenges to a local agency’s
26 disapproval of a housing development project, in subsection (p) at issue here, the Legislature only
27 identified the three HAA-centric factors and did not mention CEQA whatsoever. Had the Legislature
28 intended for courts to consider CEQA-related factors in applying subsection (p) it easily could have by
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ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO
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1 repeating similar language from subsection (k) or otherwise indicating that potential environmental
2 impacts identified during the CEQA process were relevant to the unique balancing subsection (p)
3 requires. Neither Petitioners nor the Court are permitted to add text to subsection (p) that the
4 Legislature chose to omit. And as noted above, Petitioners are out of bounds in relying on
5 inadmissible, extra-record evidence from the City’s new General Plan to assert the site is not suitable
6 for housing knowing full well that the only relevant land use and zoning policies and plans are those
7 that applied in September 2015 when the Vista Mar Project application was deemed complete. In sum,
8 the Vista Mar Project site is suitable for a housing developme
Preview
1 Michelle Marchetta Kenyon (SBN 127969) FILING FEE EXEMPT PURSUANT TO E-mail: mkenyon@bwslaw.com GOVERNMENT CODE § 6103 2 Stephen E. Velyvis (SBN 205064) E-mail: svelyvis@bwslaw.com 3 Deepa Sharma (SBN 313183) E-mail: dsharma@bwslaw.com 4 BURKE, WILLIAMS & SORENSEN, LLP 1 California Street, Suite 3050 5 San Francisco, California 94111-5432 Tel: 415.655.8100 Fax: 415.655.8099 6 Attorneys for Respondents/Defendants 7 CITY COUNCIL OF THE CITY OF PACIFICA, CITY OF PACIFICA 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 COALITION OF PACIFICANS FOR AN Case No. 20-CIV-05719 UPDATED PLAN; KRISTIN CRAMER, et 13 al., RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S 14 Plaintiffs and Petitioners, JOINT RESPONSE TO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING 15 v. HOUSING ACCOUNTABILITY ACT ISSUES 16 CITY COUNCIL OF THE CITY OF PACIFICA, CITY OF PACIFICA, et al., Assigned for All Purposes to: 17 Hon. Nancy L. Fineman Defendants and Respondents. Department 4 18 Action Filed: December 21, 2020 19 MONTEREY ROAD PACIFICA, LLC, Trial Date: TBD JAVIER CHAVERRIA VISTA MAR 20 DEVELOPMENT, and DOES 1 through 20, inclusive 21 22 Real Parties in Interest and Defendants 23 24 25 26 27 28 B URKE , W ILLIAMS & 4874-3110-1094 v2 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ................................................................................................................. II 4 II. LEGAL ARGUMENT ...........................................................................................................2 5 A. Gov. Code Section 65589.5(p) Applies to Petitioners’ Pending Fee Motion ............2 6 B. Whether the Vista Mar Project Site has Habitat for Special Status Species is Not Relevant To Subsection (p)’s General Protection the City and Real 7 Parties Urge the Court to Apply Here. .......................................................................5 8 C. Section 65589.5(p) Applies to All Housing Development Projects, Including Those With Both Affordable and Market Rate Units like the Vista 9 Mar Project. ................................................................................................................7 10 D. Petitioners’ Pending Fee Motion Should Be Denied As Upon Giving Due Weight To Subsection (p)(1)’s Factors It Is Clear That The Requisite 11 Significant Benefit Has Not Been Conferred On The General Public Or A Large Class Of Persons. .............................................................................................8 12 1. The City’s Approval of the Vista Mar Project Furthers The HAA 13 Policies Set Forth in Subdivisions (a), (b), and (c) of Section 65589.5. ..........................................................................................................8 14 2. The Vista Mar Project Site is Suitable for a Housing Development. .............9 15 3. City’s Approval of the Vista Mar Project Was Extremely 16 Reasonable. ..................................................................................................10 17 III. CONCLUSION ....................................................................................................................11 18 19 20 21 22 23 24 25 26 27 28 B URKE , W ILLIAMS & 4874-3110-1094 v2 i S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 TABLE OF AUTHORITIES 2 Page(s) 3 State Cases 4 City of Clovis v. County of Fresno 5 (2014) 222 Cal. App. 4th 1469 .................................................................................................. 4 6 Coast Bank v. Holmes (1971) 19 Cal. App. 3d 581 ....................................................................................................... 4 7 Honchariw v. County of Stanislaus 8 (2011) 200 Cal.App.4th 1066 .................................................................................................... 7 9 Leenay v. Superior Court (2022) 81 Cal.App.5th 553 ........................................................................................................ 3 10 11 Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052 .................................................................................................... 3 12 Western States Petroleum Ass’n v. Superior Court 13 (1995) 9 Cal.4th 559.................................................................................................................. 9 14 State Statutes 15 Code of Civil Procedure 16 Section 1021.5 .................................................................................................................. passim Section 1094.5(c) ...................................................................................................................... 9 17 Section 1094.5(e) ...................................................................................................................... 9 18 Gov't Code Section 65589.5 ................................................................................................................. 1, 4, 8 19 Section 65589.5(b) .................................................................................................................... 8 Section 65589.5(d) ............................................................................................................ 4, 7, 8 20 Section 65589.5(h)(2) ................................................................................................................ 7 21 Section 65589.5(h)(6)(D)(i)(I)(ia) ............................................................................................. 6 Section 65589.5(h)(6)(E)(i)(I) ................................................................................................... 6 22 Section 65589.5(p) ........................................................................................................... passim Section 65589.5(p)(1) .................................................................................................... 1, 2, 5, 8 23 Section 65589i.5(j)(1) ............................................................................................................... 9 Section 65913.4(a)(6)(K) .......................................................................................................... 6 24 Section 655890.5(p) .................................................................................................................. 4 25 Housing Accountability Act ............................................................................................................ 4 26 Other Authorities 27 California Rules of Court Rule 8.104.............................................................................................. 3 28 B URKE , W ILLIAMS & 4874-3110-1094 v2 ii S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 California Rules of Court, Rule 3.1308(a)(1)’s ............................................................................... 3 2 Local Rule 3.403 ............................................................................................................................. 3 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B URKE , W ILLIAMS & 4874-3110-1094 v2 iii S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 I. INTRODUCTION 2 Defendants and Respondents CITY COUNCIL OF THE CITY OF PACIFICA and the 3 CITY OF PACIFICA (collectively, the “City”) and Real Parties in Interest MONTEREY ROAD 4 PACIFICA, LLC, VISTAMAR DEVELOPMENT and JAVIER CHAVARRIA (collectively, the 5 “Real Parties”) submit this joint brief in response to the Petitioners’ February 13th brief in support 6 of their pending motion for attorneys’ fees pursuant to Code of Civil Procedure Section 1021.5. 7 In their February 13th brief, Petitioners’ offer three arguments in support of their 8 preliminary contention that Government Code Section 65589.5(p)(1) doesn’t even apply here in 9 the first place. All three of those arguments completely miss the mark as they are unsupported and 10 unpersuasive. As demonstrated below, the City and Real Parties do not ask this court to 11 retroactively apply Section 65589.5(p)(1) to the Court’s December 2022 Judgment on Petitioners’ 12 CEQA claims or any other prior final determination of this Court, but rather, simply ask this Court 13 to apply Section 65589.5(p)(1) to Petitioners’ pending fee motion. Petitioners’ fee motion is still 14 pending because the Court expressly required the preparation of a formal written order and for that 15 order to be signed and entered by the Court before the Court’s decision on the motion is final and 16 the only formal written order signed and entered by the Court to date was the December 5, 2023 17 order denying the fee motion without prejudice and requesting additional briefing and hearing. 18 Petitioners also assert that the presence of habitat for special status species on the project 19 site and the project’s alleged lack of affordability render Section 65589.5 inapplicable. Not so. 20 Section 65589.5(p) sets up two separate and distinct protections for local governments who have 21 been sued by neighbors or interest groups for approving a housing development project, a general 22 protection that applies to all fee motions in cases challenging approval of a housing development 23 project, and a heightened protection for a special class of very dense, transit-oriented infill projects on 24 sites lacking such habitat and other environmental criteria. The fact that the Vista Mar Project doesn’t 25 qualify for subsection (p)’s heightened protection doesn’t mean subsection (p) doesn’t apply at all. 26 And, notwithstanding the fact that the Vista Mar Project must make one of its eight units affordable by 27 offering it for sale below market rate, there is no affordability requirement in subsection (p) as it 28 applies to all housing development projects irrespective of their level of affordability. B URKE , W ILLIAMS & 4874-3110-1094 v2 1 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 Finally, on the merits of the housing factors subsection (p) requires the court to give due 2 weight to, Petitioners ignore the extensive record evidence demonstrating that the Vista Mar 3 Project has long been planned and is suitable for housing and that the City’s project review and 4 approval process was extremely reasonable. Instead, Petitioners impermissibly claim the Project 5 doesn’t satisfy any of the relevant housing factors based on misconceptions about the HAA, 6 inadmissible extra-record evidence, and CEQA impacts the Legislature chose to purposefully omit 7 from the unique balancing required by new subsection (p). Upon giving due weight to the HAA 8 policies, the suitability of the Vista Mar project site for a housing development and the reasonableness 9 of the City’s review and approval of the subject Vista Mar project as required by Section 10 65589.5(p)(1), it is clear that the requisite significant benefit has not been conferred on the general 11 public or a large class of persons here and as a result Petitioners are not entitled to a fee award at all. 12 II. LEGAL ARGUMENT 13 A. Gov. Code Section 65589.5(p) Applies to Petitioners’ Pending Fee Motion 14 Section 65589.5(p) plainly says it applies “[u]pon any motion for an award of attorney’s 15 fees pursuant to Section 1021.5 of the Code of Civil Procedure, in a case challenging a local 16 agency’s approval of a housing development project.” (Emphasis added.) Because Petitioners’ fee 17 motion is still pending and no final, appealable order has been signed and entered on the motion, 18 this is not a question about the retroactive application of a new law as Petitioners’ contend, but 19 rather, the commonplace application of a new law to an open, unresolved motion. 20 Petitioners do not argue that Section 65589.5(p)(1)’s key gatekeeper language is 21 ambiguous or that this case somehow falls outside of the scope of this provision. Instead, they 22 look beyond the unambiguous plain language of the statute and argue that the Court already made 23 a “prior judicial fee determination finding” regarding Code of Civil Procedure Section 1021.5’s 24 “significant benefit” criterion before new Section 65589.5(p) became effective rendering its 25 application now inappropriately retroactive. Even if this “prior judicial fee determination finding” 26 was the applicable standard (it is not, Petitioners created it out of whole cloth, and “upon any 27 motion” is the clear standard ), Petitioners’ entire argument hinges on their claim that the fact “the 28 Court has not signed its formal order has no bearing here.” That claim is not only unsupported, it B URKE , W ILLIAMS & 4874-3110-1094 v2 2 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 is wrong. 2 It is unsupported because the two cases Petitioners rely on, Tellez v. Rich Voss Trucking, 3 Inc. (2015) 240 Cal.App.4th 1052 and Leenay v. Superior Court (2022) 81 Cal.App.5th 553, are 4 inapposite and distinguishable. Tellez and Leenay stand for the unremarkable proposition that in 5 courts that offer tentative rulings on law and motion matters and have local rules making clear 6 they follow the California Rules of Court, rule 3.1308(a)(1)’s “notice of intent to appear required” 7 procedure, a tentative ruling will automatically become the order of the court if the party wishing 8 to contest the tentative ruling does not provide timely notice of the party’s intention to appear to 9 contest the tentative to all other parties and the court before 4 p.m. on the court day before the 10 hearing. (Tellez, supra, 240 Cal.App.4th at 1060 and fn. 10.) 11 But the record here is clear that not only does this Court offer such tentative rulings and 12 require such a notice of intent to appear procedure (see Local Rule 3.403), both the City and Real 13 Parties timely contested both of the tentative rulings issued to date on Petitioners’ pending fee 14 motion (see August 29, 2023 Minute Order [“Defendants City of Pacifica and Real Parties in 15 Interest contested the Court’s Tentative Ruling”]; February 6, 2024 Minute Order [“Respondent 16 contests the Tentative Ruling. Real Parties in Interest contests the Tentative Ruling”].) As such, 17 those tentative rulings on Petitioners’ fee motion did not automatically become the order of the 18 Court and Petitioners’ motion is still pending. There are two additional, equally powerful reasons 19 why neither the Court’s August 28, 2023 Tentative Ruling on Petitioners’ fee motion nor the 20 Court’s August 29, 2023 Minute Order modifying and preliminarily adopting that Tentative 21 Ruling are final. 22 First, per Rule 8.104 of the California Rules of Court, where, like here, the underlying 23 decision at issue is an order granting or denying a motion and the motion was preliminarily 24 granted by way of a minute order directing that a written order be prepared, the entry date of that 25 written order for purposes of determining its finality and for triggering the applicable 60-day 26 appeal period “is the date the signed order is filed.” Both the Court’s August 28, 2023 Tentative 27 Ruling on Petitioners’ pending fee motion and the August 29, 2023 Minute Order modifying and 28 adopting that Tentative Ruling clearly and expressly direct a written order be prepared – the B URKE , W ILLIAMS & 4874-3110-1094 v2 3 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 8.28.23 Tentative Ruling states “Counsel for plaintiffs shall prepare a written order consistent with 2 the Court’s ruling and for the court’s signature” and the 8.29.23 Minute Order states “Party shall 3 prepare formal order consistent w/order herein; Counsel for Plaintiffs.” Second, the court did sign 4 and enter an order on December 5, 2023, denying Petitioners fee motion without prejudice and 5 requesting supplemental briefing and a further hearing, which is continuing now through the 6 instant briefing on these Housing Accountability Act issues. 7 Petitioners’ last argument claiming the City’s and Real Party’s position is “convoluted” 8 and citing to subsection (d) of Section 65589.5 is not only very confusing it is also wrong. On the 9 bottom of page 5 and on to the top of page 6 of their February 13th brief, Petitioners confusingly 10 claim that the City can’t ask the Court to apply new subsection (p) in the context of this fee motion 11 because the City did not itself first comply with subdivision (d) when it approved the Vista Mar 12 housing development project. Further, Petitioners incorrectly claim subdivision (d) only became 13 effective January 1, 2024 and thus did not exist in November 2020 when the City approved the 14 project. This argument is confusing and wrong because not only has subdivision (d) been a part of 15 the HAA since it was first adopted in 1982, but the City had no reason to consider compliance 16 with subsection (d) in November 2020 when it approved the Vista Mar project because that 17 subsection only pertains to local agency decisions to disapprove a housing development project 18 and as the Court is well aware the City approved the Vista Mar project in November 2020. 19 Finally, assuming arguendo that this case concerned the retroactive application of Section 20 655890.5(p), it does not, if a statute is remedial or procedural in nature like subsection (p) here it 21 may be applied in litigation pending when it came into effect, even if the events underlying the 22 cause of action took place before it came into effect, so long as it does not create a new cause of 23 action, deprive a defendant a defense on the merits, or alter a party’s vested rights (City of Clovis 24 v. County of Fresno (2014) 222 Cal. App. 4th 1469, 1471; see also, Coast Bank v. Holmes (1971) 25 19 Cal. App. 3d 581, 594 [“The application of a statute effecting a change in ‘procedure’ or 26 ‘remedy’ to pending litigation is not violative of the principle of nonretroactivity even though the 27 event giving rise to the cause of action antedated the statute.”].) 28 In sum, Petitioners’ motion remains open, unresolved, and is still pending, and as a result B URKE , W ILLIAMS & 4874-3110-1094 v2 4 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 Section 65589.5(p)(1) applies directly (not retroactively) because the motion satisfies every aspect 2 of the key gatekeeper language – “upon any motion for an award of attorneys’ fees pursuant to 3 Section 1021.5 of the Code of Civil Procedure, in a case challenging a local agency’s approval of 4 a housing development project.” 5 B. Whether the Vista Mar Project Site has Habitat for Special Status Species is Not Relevant To Subsection (p)’s General Protection the City and Real Parties Urge the 6 Court to Apply Here. 7 Petitioners’ claim, that the Vista Mar project does not qualify for the protections afforded 8 by subsection (p) because a biologist they hired opined that the Vista Mar project site contains 9 habitat for special status species, is a classic red herring that is intended to confuse the Court. 10 What Petitioners fail to acknowledge, let alone point out, is that in adopting new subsection (p), 11 the Legislature set up two separate and distinct protections for local governments who have been 12 sued by neighbors or interest groups for approving a housing development project. The first, general 13 or base level of protection is laid out in the first sentence of subsection (p)(1) which requires the court, 14 in weighing whether a significant benefit has been conferred on the general public or a large class of 15 persons, to give due weight to the degree to which the local agency’s approval furthers HAA policies, 16 the suitability of the site for a housing development and the reasonableness of the local agency’s 17 decision to approve the housing development project. It is this first, general protection that the City 18 and Real Parties assert applies here and requires the Court to give due weight to these HAA-focused 19 factors. Nowhere in that first sentence does the Legislature mention the presence or absence of special 20 status species habitat let alone make the absence of such habitat a prerequisite for this first, general 21 protection to apply. 22 The second, heightened level of protection is laid out in the second sentence of subsection 23 (p)(1) which does, through two cross-references to the environmental criteria that projects under SB 35 24 must meet, identify the absence of habitat for special status species as one of a number of prerequisites 25 that must be met before the heightened protection in the second sentence applies. The heightened 26 nature of this second protection is evident by its use of fairly extreme language where the Legislature 27 states “that attorneys’ fees and costs should rarely, if ever, be awarded if a local agency, acting in 28 good faith, approved a housing development project that satisfies conditions established in B URKE , W ILLIAMS & 4874-3110-1094 v2 5 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 [subsections (h)(6)(D)(i)(I-III) and (h)(6)(E)(i-iii)].” (Emphasis added.) This second sentence of 2 subsection (p) and its heightened protection identifies the absence of habitat for special status species 3 as one of the conditions through the cross references to subsection (h)(6)(D)(i)(I)(ia) and subsection 4 (h)(6)(E)(i)(I), which both include cross references to Government Code Section 65913.4(a)(6)(K) 5 which reads “[h]abitat for protected species identified as candidate, sensitive, or species of special 6 status by state or federal agencies, fully protected species, or species protected by the federal 7 Endangered Species Act [], the California Endangered Species Act [], or the Native Plant Protection 8 Act [].” Another condition that must be met in order for the heightened protection in the second 9 sentence of subsection (p) to apply is that the housing development project at issue must have a density 10 that meets or exceeds 15 dwelling units per acre. (See 65589.5(h)(6)(D)(i)(III) and (h)(6)(E)(iii). 11 The Vista Mar housing development project proposes the construction of eight units on the 12 site’s 1.2 acres and, as such, the project fails to meet the heightened protection’s minimum density 13 requirement. But, as counsel for the City explained to the Court at the hearing on February 6th, the fact 14 that a project fails to meet the minimum density requirement or any of the other numerous criteria that 15 are prerequisites for subsection (p)’s heightened protection does not mean the project doesn’t qualify 16 for the general, base protection afforded by subsection (p)’s first sentence. In other words, subsection 17 (p)’s general protections requiring Courts to give due weight to the HAA-centric factors apply upon 18 any CCP Section 1021.5 fee motion in a case challenging a local agencies approval of a housing 19 development project, whereas subsection (p)’s heightened protections apply only to the type of dense, 20 transit-oriented, infill projects on innocuous sites that meet all of the conditions in the second sentence 21 of subsection (p). Not only does the plain language of subsection (p) clearly lay out these separate, 22 distinct protections, so too does the Legislative History, which summarizes the two protections in 23 separate, distinct items listed as AB 1633’s eight “Major Provisions” and, in summarizing subsection 24 (p) the Legislature noted that it “provides some additional protections for local governments who have 25 been sued by neighbors or interest groups for approving a housing development project.” If subsection 26 (p) had but a single protection the Legislature would not have described (p) as providing additional 27 “protections” using the plural form of the word. (See 3d reading analysis of Assem. Bill No. 1633 28 (2022-2023 Reg. Sess.) as amended April 27, 2023, pp. 1-4) which is included as Attachment 1 to B URKE , W ILLIAMS & 4874-3110-1094 v2 6 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 this brief.) 2 C. Section 65589.5(p) Applies to All Housing Development Projects, Including Those With Both Affordable and Market Rate Units like the Vista Mar Project. 3 4 Petitioners stubbornly repeat their unsupported arguments that Section 65589.5(p) is 5 limited to agency consideration of projects for very low, low- or moderate-income households and 6 that subsection (p) doesn’t apply here because the Vista Mar project is for above-moderate income 7 households. Petitioners continue to get both arguments wrong. 8 First, there is no affordable housing requirement in Section 65589.5(p). Subsection (p) 9 applies without limitation to all “housing development projects” which subsections (d) and (h)(2) 10 combine to define as projects that entail any of the following: residential units only; mixed-use 11 developments consisting of residential and nonresidential uses with at least two-thirds of the 12 square footage designated for residential use; transitional housing or supportive housing, 13 farmworker housing, and emergency shelters. (Gov’t Code § 65589.5(d) and (h)(2).) Accordingly, 14 there simply is no affordable housing requirement here. The HAA applies to both market rate and 15 affordable housing projects alike. (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 16 1066, 1073 [determining an eight-unit, market rate development was for “[r]esidential units only” 17 and thus was a “housing development project” as defined by section 65589.5(h)(2)].) Like the 18 project at issue in Honchariw, the Vista Mar Project is also an eight-unit development for 19 residential units only and thus qualifies as a “housing development project” subject to the HAA’s 20 provisions, including newly enacted subsection (p) at issue here. 21 Second, while it doesn’t matter for purposes of determining whether the Vista Mar Project 22 qualifies as a “housing development project” and thus is subject to subsection (p)’s protections, 23 the Vista Mar Project is not strictly an “above-moderate income” project as Petitioners assert. To 24 the contrary, one of the eight proposed Vista Mar units will be an affordable/below-market unit 25 with contractual protections to ensure the long-term affordability of the unit for no less than 45 26 years. 27 In sum, Petitioners confuse Section 65589.5(d), which pertains to and severely limits a 28 local agency’s ability to disapprove housing development projects for very low, low-, or B URKE , W ILLIAMS & 4874-3110-1094 v2 7 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 moderate-income households, with subsection (p), which applies evenly to any/all CCP Section 2 1021.5 fee motions brought in cases challenging a local agency’s approval of housing 3 development projects irrespective of their affordability. Section 65589.5(d) does not apply here 4 and subsection (p) does as Petitioners’ underlying challenge was to the City’s approval of the 5 Vista Mar housing development project. 6 D. Petitioners’ Pending Fee Motion Should Be Denied As Upon Giving Due Weight To Subsection (p)(1)’s Factors It Is Clear That The Requisite Significant Benefit Has Not 7 Been Conferred On The General Public Or A Large Class Of Persons. 8 1. The City’s Approval of the Vista Mar Project Furthers The HAA Policies Set Forth in Subdivisions (a), (b), and (c) of Section 65589.5. 9 10 As demonstrated in the City’s and Real Parties Further Joint Brief filed on February 13th, 11 subdivision (a) of the HAA declares that California has a housing supply and affordability crisis of 12 historic proportions and aims to combat the crisis through policies geared to significantly increase 13 the approval and construction of new housing for all economic segments. The Vista Mar housing 14 development project is consistent with and furthers all of these policies by providing eight for-sale 15 housing units, including one affordable/below market rate unit. Petitioners’ claims to the contrary 16 are without merit as they ignore the fact that 12.5% of the project’s units will be sold below 17 market rate and impermissibly equate partial success on their CEQA claims with evidence of or a 18 finding that the proposed housing would be unsafe. 19 Petitioners’ focus on and arguments that the Vista Mar Project does not further the policies 20 in subdivision (b) of the HAA are also misplaced. Section 65589.5(b) and subdivision (d) cross- 21 referenced therein include policies strictly limiting an agency’s ability to disapprove housing 22 development projects. But the City approved the Vista Mar Project and mandated it include a 23 below market rate unit and, as such, the City clearly furthered the policy in (b) aimed at limiting 24 decisions to disapprove housing. 25 Finally, the City and Real Parties have demonstrated that because the Vista Mar Project 26 site does not contain any prime agricultural soil and involves infill development in an existing 27 urban area long planned for residential uses it also furthers the policies of subdivision (c). 28 Petitioners, on the other hand, ignore those key facts and introduce and rely on inadmissible, B URKE , W ILLIAMS & 4874-3110-1094 v2 8 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 extra-record evidence in the City’s newly updated General Plan knowing full well: (1) extra- 2 record evidence is not admissible in administrative mandamus proceedings (see CCP § 1094.5(c), 3 (e); Western States Petroleum Ass’n v. Superior Court (1995) 9 Cal.4th 559, 578); and (2) that the 4 HAA makes clear that only the objective general plan, zoning, and subdivision standards and 5 criteria in effect at the time the application was deemed complete are relevant (see Gov’t Code § 6 65589i.5(j)(1)) and the Vista Mar Project application was deemed complete on September 30, 7 2015, well before the City adopted its updated General Plan in July 2022. In sum, the City’s 8 approval of the Vista Mar Project furthered all the applicable HAA policies in subsections (a), (b) and 9 (c) and the Court must give this factor due weight in re-evaluating whether Petitioners have satisfied 10 Section 1021.5’s substantial benefit prong. 11 2. The Vista Mar Project Site is Suitable for a Housing Development. 12 Pursuant to the City’s General Plan, Housing Element and related zoning and design 13 standards applicable at the time the Vista Mar Project application was deemed complete in 14 September 2015, the record before this Court is crystal clear – the Vista Mar Project site is suitable for 15 housing development. Indeed, the Project site consists of Urban and Built-Up Land, has no prime 16 farmland, unique farmland or farmland of statewide importance that will be impacted or converted and 17 has long been planned for residential development. The site is designated Low Density Residential, 18 three to nine dwelling units/acre, zoned Multiple-Family Residential (R-3) and specifically identified 19 as Potential Housing Development Site number 8 and counted on to provide residential units to meet 20 the regional housing production allocated to the City. By all relevant accounts, the Vista Mar Project 21 site is extremely suitable for residential housing development. 22 Petitioners ignore all of those facts and point inappropriately to the project’s potential CEQA 23 impacts and the City’s updated General Plan in asserting that the project site isn’t suitable for housing. 24 But unlike in subsection (k) where the Legislature expressly permits courts to consider CEQA-related 25 factors in assessing whether to award fees in cases involving challenges to a local agency’s 26 disapproval of a housing development project, in subsection (p) at issue here, the Legislature only 27 identified the three HAA-centric factors and did not mention CEQA whatsoever. Had the Legislature 28 intended for courts to consider CEQA-related factors in applying subsection (p) it easily could have by B URKE , W ILLIAMS & 4874-3110-1094 v2 9 S ORENS EN , LLP ATTO RNEY S AT LAW RESPONDENT CITY OF PACIFICA’S AND REAL PARTIES IN INTEREST’S JOINT RESPONSE TO SAN FRA NCI S CO PETITIONERS’ FEBRUARY 13TH BRIEF REGARDING HOUSING ACCOUNTABILITY ACT ISSUES 1 repeating similar language from subsection (k) or otherwise indicating that potential environmental 2 impacts identified during the CEQA process were relevant to the unique balancing subsection (p) 3 requires. Neither Petitioners nor the Court are permitted to add text to subsection (p) that the 4 Legislature chose to omit. And as noted above, Petitioners are out of bounds in relying on 5 inadmissible, extra-record evidence from the City’s new General Plan to assert the site is not suitable 6 for housing knowing full well that the only relevant land use and zoning policies and plans are those 7 that applied in September 2015 when the Vista Mar Project application was deemed complete. In sum, 8 the Vista Mar Project site is suitable for a housing developme