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ZACKS, FREEDMAN & PATTERSON, PC
235 MONTGOMERY STREET, SUITE 400
SAN FRANCISCO, CALIFORNIA 94104
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RYAN J. PATTERSON (SBN 277971)
EMILY L. BROUGH (SBN 284943)
ZACKS, FREEDMAN & PATTERSON, PC
235 Montgomery Street, Suite 400
San Francisco, CA 94104
Tel: (415) 956-8100
Fax: (415) 288-9755
ryan@zfplaw.com
emily@zpflaw.com
Attorneys for Petitioners and Plaintiffs
CALIFORNIA RENTERS LEGAL
ADVOCACY AND EDUCATION FUND;
SAN FRANCISCO BAY AREA
RENTERS FEDERATION;
VICTORIA FIERCE; SONJA TRAUSS
SUPERIOR COURT — STATE OF CALIFORNIA
COUNTY OF SANTA CLARA — UNLIMITED CIVIL JURISDICTION
CALIFORNIA RENTERS LEGAL
ADVOCACY AND EDUCATION FUND,
SAN FRANCISCO BAY AREA RENTERS
FEDERATION, VICTORIA FIERCE, and
SONJA TRAUSS,
Petitioners and Plaintiffs,
vs.
CITY OF LOS ALTOS; LOS ALTOS CITY
COUNCIL; CITY OF LOS ALTOS
COMMUNITY DEVELOPMENT
DEPARTMENT; and DOES 1-25,
Respondents and Defendants,
40 MAIN STREET OFFICES LLC, a limited
liability company,
Real Party in Interest.
Case Number:
PETITION FOR WRITS OF
ADMINISTRATIVE MANDAMUS OR
MANDATE (CCP § 1094.5 or § 1085; GOV,
CODE § 65913.4; GOV. CODE § 65589.5);
COMPLAINT FOR DECLARATORY
RELIEF (CCP § 1060); AND IMMEDIATE
REQUEST FOR STAY
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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Petitioners and plaintiffs CALIFORNIA RENTERS LEGAL ADVOCACY AND
EDUCATION FUND, SAN FRANCISCO BAY AREA RENTERS FEDERATION,
VICTORIA FIERCE, and SONJA TRAUSS (collectively, “Petitioners”), by and through their
attorneys, Zacks, Freedman & Patterson, PC, file this petition for writs of administrative
mandamus and/or mandate and complaint for declaratory relief against respondents and
defendants CITY OF LOS ALTOS, LOS ALTOS CITY COUNCIL, CITY OF LOS ALTOS
COMMUNITY DEVELOPMENT DEPARTMENT, and DOES 1-25 (collectively,
“Respondents”), to set aside and void Respondents’ decision denying ministerial permit
applications nos. 18-D-07 and 18-UP-10 (collectively, “Application”) for the 40 Main Street
Project (“Project”), located at 40 Main Street, Los Altos, CA (“Property”), and to compel
Respondents to approve the Application and Project. In addition to the aforesaid writs of
mandate/mandamus and declaratory relief, Petitioners also seek issuance of an immediate stay.
Petitioners allege as follows:
PARTIES TO THE ACTION
1. Petitioner and Plaintiff California Renters Legal Advocacy and Education Fund
(“CaRLA”) is a California nonprofit corporation in good standing in this state, and lawfully
allowed to bring and maintain this Petition and Complaint. CaRLA was formed, in part, to
advocate for the construction of housing throughout the state, including in Los Altos, to meet
the needs of California residents. This advocacy includes litigation under certain state laws that
limit the ability of local governments to limit housing production, including California’s
Housing Accountability Act, Government Code § 65589.5 et seq. (“HAA”), Government Code
section 65913.4 (“SB 35”), and the State Density Bonus Law, Government Code section 65915,
et seq. (the “State Density Bonus Law”). CaRLA has a direct and substantial interest in
ensuring that Los Altos complies with state laws requiring that it participate in addressing the
housing needs of California residents. It acts on behalf of its members, though its actions
benefit all similarly-situated residents and intended residents. CaRLA has a substantial interest
in ensuring that Los Altos’ decisions are in conformity with the requirements of law, and in
having those requirements properly executed and its public duties enforced. On April 8, 2019,
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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CaRLA submitted written objections to the Los Altos City Council in support of the Project
sponsor’s appeal of Application denial. CaRLA brings this Petition on its own behalf and on
behalf of others affected by Respondents’ failure to comply with state law as alleged herein.
The Property is located within Santa Clara County and Judicial District.
2. Petitioner and Plaintiff San Francisco Bay Area Renters Federation (the
“Federation”) is an unincorporated association of renters whose mission includes advocating
for the construction of housing to meet the needs of California residents, including in Los
Altos, through the HAA, SB 35, and State Density Bonus Law. Its members are residents of
the State of California and cut across socioeconomic lines, including members with very low,
low, moderate, middle, and higher incomes. The Federation has a direct and substantial
interest in ensuring that Los Altos complies with state laws requiring that it participate in
addressing the housing needs of California residents. The Federation actively supports housing
development projects and opposes efforts to disapprove or reduce the density of housing
development projects. It acts on behalf of its members, though its actions benefit all similarly-
situated residents and intended residents. Members of the Federation were, are, will be, and
would be eligible to apply for residency in the Project at issue in this petition. As potential
residents of the Project, members of the Federation are affected by Los Altos’ actions
challenged herein. The Federation has a substantial interest in ensuring that Los Altos’
decisions are in conformity with the requirements of law, and in having those requirements
properly executed and its public duties enforced. Its members, as well as the general public,
will be adversely affected by impacts resulting from the acts described herein and are
aggrieved by the acts, decisions, and omissions of Los Altos as alleged in this petition. The
Federation is suing on its own behalf, on behalf of its members, and on behalf of others
affected by Los Altos’ acts pertaining to the Project, as well as all potential applicants and
residents of the Project.
3. Petitioner and Plaintiff Victoria Fierce is a natural person and a resident of the
State of California, and a co-executive director of CaRLA. Fierce was, is, and will be “a person
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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who would be eligible to apply for residency in the development,” i.e., the Project. Fierce has a
substantial interest in ensuring that Respondents’ decisions are in conformity with the
requirements of law, that those requirements are properly executed, and that the public duties of
Los Altos are enforced.
4. Petitioner and Plaintiff Sonja Trauss is a natural person and a resident of the
State of California, a co-executive director of CaRLA, and the founder of the Federation.
Trauss was, is, and will be “a person who would be eligible to apply for residency in the
development,” i.e., the Project. Trauss has.a substantial interest in ensuring that Respondents’
decisions are in conformity with the requirements of law, that those requirements are properly
executed, and that the public duties of Respondents are enforced.
5. Respondent and Defendant City of Los Altos (the “City”) is a municipality of the
State of California.
6. Respondent and Defendant Los Altos City Council (the “Council”) is a quasi-
judicial, policy making and supervisory body, which hears appeals and determines City
policies and service standards.
7. Respondent and Defendant City of Los Altos Community Development
Department (“CDD”) is an agency integral to the City of Los Altos.
8. Real Party in Interest 40 Main Street Offices LLC is a California limited
liability company that is and was at all times mentioned herein qualified to do business in
California. Real Party in Interest owns the Property and is the Project applicant.
9. Petitioners are not aware of the identities of respondent/defendants DOES 1-25,
who are responsible for the acts and omissions alleged herein and that caused damage to
Petitioners; therefore Petitioners will amend this Petition and Complaint when the true
identities of DOES 1-25 are ascertained.
10. Petitioners are informed and believe that at all times mentioned in this Petition
and Complaint, all respondent/defendants were the agents or employees of their co-
Respondent/Defendant, and in doing the things alleged in this Complaint, were acting within
the course and scope of that agency and employment.
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BACKGROUND FACTS
11. The Property sits within a Commercial Retail Sales/Office-Administrative
District of Los Altos, which permits a full range of retail, office, mixed-use residential, and
commercial services, and is within the City’s public parking plaza system. The Project
proposes a five-story mixed-use building with two levels of underground parking. The
proposed uses include a first-level office space and fifteen (15) residential rental units on levels
two though five. Two of the fifteen (15) residential rental units are proposed as below market
rate (BMR) units. A total of eighteen (18) parking spaces and storage areas are provided
between the two underground parking levels. The Project includes the removal of existing
structures, site improvements, plants, and landscaping.
12. The Project sponsor initially submitted an application for a 3-story office project
in 2010 and resubmitted it again in 2013. The City denied the 2010 application, and initially
denied the 2013 application based on a claim the application was incomplete, even after the
Project sponsor supplemented the application with the additional materials requested by the
City. After finally acknowledging that the application was “complete” in 2016, the City
refused to approve it and instead demanded additional reports, third party review processes,
and numerous design changes. After the Project sponsor redesigned the prior project to meet
the City’s demands, the Planning Commission again rejected that project in June of 2018,
indicating that it would oppose any future attempts to build any project on the Property that
was not completely redesigned and reduced in size.
13. On November 8, 2018, after nine years of attempts to build an office on the
Property had failed, the Project sponsor redesigned the Project to provide housing to comply
with SB 35, and submitted the Application under SB 35, SB 35 provides a streamlined
ministerial approval process for development projects that provide for at least 10% BMR
residential units. Recognizing California’s dire need for more affordable housing, the
Legislature enacted SB 35 to accelerate the permitting process for such housing development
projects.
14. To qualify for SB 35 approval, the proposed project must be planned for a site
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whose general plan and zoning allow for residential use or mixed-use, and if a mixed-use
project is proposed, at least two-thirds of the development must be for residential use. SB 35
also requires that, on non-public works projects, the project applicant certify that all
construction workers employed thereon shall be paid the prevailing wage. (Gov. Code
§65913.4(a)(8)(5)) The project must also comply with “objective” — rather than subjective —
general plan, zoning, and design review standards. Specifically, these are “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(a)(5)) As part of the Application, the Project sponsor submitted detailed materials to
the City demonstrating that the Project is zoning compliant, general plan compliant, and fully
complies with SB 35.
15. SB 35 also provides that project applicants are entitled to utilize the State
Density Bonus Law when preparing and submitting SB 35 Projects. Among other things, the
State Density Bonus Law encourages construction of additional housing by allowing project
applicants to add additional units beyond the local jurisdiction’s limits, in exchange for
building affordable or senior units. The State Density Bonus Law is specifically intended to
help make the development of such housing economically feasible. The Project sponsor here
included a request for a density bonus in the Application. Because the Project was fully
compliant with SB 35, Respondents were required to grant the density bonus under the State
Density Bonus Law.
16. The Project is also subject to and was submitted under the HAA, Under the
HAA, municipalities are prohibited from imposing any conditions that have the same effect on
the ability of the project to provide housing. Municipalities are only permitted to deny a
project that meets HAA criteria if it can make findings, based on a preponderance of the
evidence, that the project would have a specific, adverse impact upon public health or safety
standards. (Gov. Code §65589.5(i), (j).)
17. “The Legislature’s intent in enacting [the HAA] in 1982 and in expanding its
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
-6-1 || provisions since then was to significantly increase the approval and construction of new
2 ||housing for all economic ‘segments of California’s communities by meaningfully and
3 || effectively curbing the capability of local governments to deny, reduce the density for, or
4 ||render infeasible housing development projects and emergency shelters. That intent has not
5 || been fulfilled.” (Gov’t Code § 65589.5(a)(2)(K).)
6 18. The HAA requires, inter alia:
7 When a proposed housing development project complies with
8 applicable, objective general plan and zoning standards and
criteria, including design review standards, in effect at the time
9 that the housing development project’s application is determined
10 to be complete, but the local agency proposes to disapprove the
9 project or to approve it upon the condition that the project be
Ze 11 developed at a lower density, the local agency shall base its
9 ss decision regarding the proposed housing development project
ae 3 12 upon written findings supported by substantial evidence on the
Bo Z 13 record that both.of the following conditions exist:
<6
aoe
&B E 2 14 (1) The housing development project would have a specific,
E z S adverse impact upon the public health or safety unless the project
Sg 15 is disapproved or approved upon the condition that the project be
agg loped : in thi aph
go Z 16 developed at a lower density. As used in this paragraph, a
Sea specific, adverse impact” means a significant, quantifiable,
z g “specific, ad i ” ignifi ifiabl
ae 17 direct,
8 ae and unavoidable impact, based on objective, identified written
a 18 public health or safety standards, policies, or conditions as they
19 existed on the date the application was deemed complete.
20 (2) There is no feasible method to satisfactorily mitigate or avoid
1 the adverse impact identified pursuant to paragraph (1), other
than the disapproval of the housing development project or the
22 approval of the project upon the condition that it be developed at
a lower density.
23
24 (Gov. Code § 65589.5(j).)
25 19, The HAA provides that a housing development project shall
be:
26
deemed consistent, compliant, and in conformity with an
27 . . .
applicable plan, program, policy, ordinance, standard,
28 requirement, or other similar provision if there is substantial
evidence that would allow a reasonable person to conclude that
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the housing development project... is consistent, compliant, or
in conformity.
(Gov’t Code § 65889.5(£)(4).)
20. Further, the HAA must be construed broadly and “consistent with, and in
promotion of, the statewide goal of a sufficient supply of decent housing to meet the needs of
all Californians.” (Gov’t Code § 65589(d).) In order to deny a housing development project,
Los Altos has the burden of either proving that the “proposed project in some manner fails to
comply with ‘applicable, objective general plan and zoning standards and criteria, including
design review standards. . .” ” or making the findings required by the HAA. (Honchariw v.
County of Stanislaus (2011) 200 Cal.App.4th 1066, 1081.)
21. SB 35 and the HAA impose strict statutory deadlines for municipal review. For
proposed projects of 150 residential units or fewer, SB 35 requires that the municipality decide
whether the project conflicts with any of its objective standards, along with an explanation of
that conflict, within 60 days after the submission of an application. (Gov. Code
§65913.4(b)(1).) And, if a city does not do so, “the development shall be deemed to satisfy the
objective planning standards.” (Gov. Code §65913.4(b)(2).) If the project is eligible, the
municipality’s review of the project must be completed and the permit issued or denied within
90 days after the submission of the application. (Gov. Code §65913.4(c)(1)(A).) That review
“shall be objective and be 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” and “shall
not in any way inhibit, chill, or preclude the ministerial approval” as provided for under SB
35. (Gov. Code §65913.4(c)(1).) Under the HAA, if the municipality determines that a
proposed project (with 150 units or less) is not consistent with the HAA, it “shall provide the
applicant with written documentation identifying the provision or provisions, and an
explanation of the reason or reasons” used to make that determination within 30 days of the
completion of the application. (Gov. Code § 65589.5(j)(2)(A)(i).) Like under SB 35, the
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
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proposed project shall be deemed consistent with the HAA if the municipality does not meet
the statutory deadline. (Gov. Code § 65589.5(j)(2)(B).)
22. On December 7, 2018, Respondents responded to the Application, erroneously
stating that their “review of the [P]roject indicates that it is not subject to the provisions of SB
35” (the “Determination”). In the Determination, the City made the following findings as to
why the Project allegedly did not meet SB 35: (1) The Project purportedly did not provide the
requisite percentage of BMR units under SB 35; and (2) The Project was purportedly
inconsistent with the City’s objective zoning standards because it did not “provide the required
number of off-street residential and visitor parking spaces nor adequate access/egress” to the
proposed off street parking. The first finding was wrong, which the City later admitted. The
second finding was not “objective”, as required under SB 35 and the HAA, nor did the City
give any further explanation for this finding. Along with its Determination, the City also sent a
separate “Notice of Incomplete Application,” stating that if the Project sponsor “elect{s] to
pursue other approval/permits avenues for the project that is the subject of this notice, the
applications, fees, deposits, studies, and information contained in the attached Notice of
Incomplete Application are required to continue an evaluation of the [P]roject.”
23. on January 9, 2018, the Project sponsor submitted a letter to the City
challenging the City’s Determination on its face: First, because the Project legally met the
BMR requirements under SB 35; second, because the Determination failed to identify any
noncompliance with any objective standard of SB 35, and further failed to provide an
‘explanation or specific code section reference for any purported noncompliance. Indeed,
because the City failed to identify any such noncompliance under SB 35 and the HAA, the
Application has been deemed compliant with all objective standards under those sections.
24. On February 6, 2019, the City responded, conceding that the Project had met
the applicable requirements for BMR units under SB 35. But the City nevertheless now
required further information about the parking, prior to approval of the Project under SB 35 or
approval of the Project under the HAA, or the request for a density bonus under the State
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Density Bonus Law. The City further responded that because the Application was
“incomplete,” SB 35 purportedly did not apply. This statement was contrary to the findings
provided in the City’s Determination, whereby the City expressly determined that the Project
was not subject to SB 35, and only directed the Project sponsor to submit the materials listed
on the Notice of Incomplete Application if the Project sponsor “elect[ed] fo pursue other
approval/permits avenues for the project.” That is, approvals/permits outside of this SB 35
Application.
25. Thereafter, on February 21, 2019, the City erroneously notified the Project
sponsor that the denial of the Application was subject to an appeal under Los Altos Municipal
Code, even though that Code specifically provides that there is no right to appeal to the
Council for ministerial acts. (Los Altos Municipal Code section 1.12.020) The Project sponsor
filed an appeal in response that day, under protest (the “Appeal”). The Appeal hearing was
thereafter scheduled for April 9, 2019.
26. On March 15, 2019, the Project sponsor provided to Respondents a
memorandum from the California Department of Housing and Community Development
(“HCD”), dated March 11, 2019. In this memorandum, the HCD explained that: (1) a 60-day
determination (such as the Determination) was required to include references to the specific
objective standards with which the Project purportedly conflicts, (2) that merely raising
concerns about “adequate” access to parking, with no citation to any specific code section, was
an insufficient basis for denial and impermissibly implied a “subjective” determination which
is prohibited by SB 35, (3) when a city fails to meet its obligation to identify a specific
standard, the Project is deemed to comply with the standards, and (4) a locality cannot demand
that an SB 35 applicant submit all of the material the locality requires for discretionary permit
applications as a precondition to granting an SB 35 permit.
27. Prior to the Appeal hearing, the City published a Staff Report. In an apparent
attempt to retroactively legitimize its rejection of the Application, the Staff Report identified a
handful of new standards — none of which were included in the Determination — with which the
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Project allegedly conflicted. The Staff Report did not include, or describe, or indicate that it
had considered the HCD memorandum that the Project sponsor had provided to the City on
March 15.
28. Petitioners submitted written objections to the Council in support of the Appeal
on April 8, 2019.
29. A hearing was held on the Appeal on April 9, 2019, where the Council voted to
deny the Appeal for wholly separate reasons than those listed in the Determination. On April
23, 2019, the Council adopted Resolution No. 2019-13, denying the Appeal, and affirming the
denial of the Application.
FIRST CAUSE OF ACTION
(Writ of Mandate CCP § 1094.5 and/or § 1085; Gov. Code § 65913.4; Gov. Code § 65589.5
— Against All Respondents)
30. Petitioners incorporate here by reference the allegations contained in Paragraphs
1 through 29 of this Petition and Complaint.
31. Santa Clara County Superior Court has initial jurisdiction of the matters alleged
herein pursuant to Code of Civil Procedure §§ 1094.5 or 1085, which authorize Petitioners to
seek a writ of mandate/mandamus, and which authorize the Court to review and set aside
public agency decisions involving a prejudicial abuse of discretion and/or to compel
Respondents’ performance of their ministerial and/or legal duties. Venue is proper pursuant
to Code of Civil Procedure § 394(a), which provides that “[a]n action... against a. . . city and
county... may be tried in [that] .. . city and county... .”
32. Petitioners request the Court issue a writ of mandate or mandamus, setting aside
and voiding Respondents’ Determination and denial of the Appeal and to instead direct
Respondents to approve the Application as required under SB 35, the HAA, and the State
Density Bonus Law. Petitioners seek an immediate stay to enjoin Respondents from denying
the Application.
33. Respondents’ Determination and denial of the Appeal was a prejudicial abuse of
discretion in that Respondents did not proceed as required by law, their decision is not
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supported by the findings, and/or the findings are not supported by the evidence, because: The
Project complies with SB 35, the HAA, and the State Density Bonus Law, and Respondents
failed to identify any legally sufficient grounds to deny the Application under either SB 35, the
HAA, or the State Density Bonus Law; Respondents’ Determination failed to identify any such
grounds for denial of the Application within the permissible timeframes of SB 35 and the
HAA; Respondents violated SB 35 by denying the Application on incompleteness grounds;
Respondents violated SB 35 by denying the Application on bases for discretionary permit
applications and/or other reasons not specially set forth in SB 35.
34. Further, in denying the Application on the aforesaid bases, Respondents
exceeded their jurisdiction and failed to comply with their ministerial duty to approve the
Application under SB 35 and act in accordance with the HAA.
35. Because Respondents’ findings are not supported by the evidence and their
decision is contrary to well established law, the standard of review is substantial evidence
and/or preponderance of the evidence, and Respondents have not met their burden.
36. Petitioners exhausted the available administrative remedies required to be
pursued by them by submitting written comments to the Council during its consideration of the
Determination during the Appeal on April 8, 2019.
37. Petitioners have a beneficial interest in ensuring the Application is granted, so
that Petitioners’ and its members’ statutory rights are not infringed upon. Petitioners have a
direct and substantial interest in ensuring that Los Altos complies with state laws requiring that
it participate in addressing the housing needs of California residents, and in ensuring that Los
Altos’ decisions are in conformity with the requirements of law, and in having those
requirements properly executed and its public duties enforced. Petitioners have a clear,
present, and legal right to Respondents’ performance of its legal duties as described herein, and
Respondents have failed and refused to perform their duties and/or abused its discretion in
doing so. Petitioners do not have a plain, speedy, or adequate remedy in the ordinary course of
law, and therefore writ relief is necessary to compel Respondents to correct their actions,
which are unlawful and in excess of their authority.
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38. Because Respondents’ decision to deny the Application was illegal, Petitioners
are entitled to attorneys’ fees under CCP § 1021.5, Govt. Code § 800(a), and/or 65589.5.
SECOND CAUSE OF ACTION
(Declaratory Relief - Code Civ. Proc. § 1060 — Against All Respondents)
39. Petitioners incorporate here by reference the allegations contained in Paragraphs
1 through 38 of this Petition and Complaint.
40. An actual controversy has arisen and now exists between Petitioners and
Respondents concerning the obligations and duties of Respondents under California statutory
law. As set forth herein, Petitioner contends that SB 35, the HAA, and the State Density Bonus
Law require Respondents to approve the Application. Petitioners are informed and believe,
and on that basis allege, that Respondents contend in all respects to the contrary. A judicial
determination and declaration as to the applicability of SB 35, the HAA, and the State Density
Bonus Law and of the resulting legal obligations of Respondents is therefore necessary and
appropriate.
WHEREFORE, Petitioners demand judgment against Respondents for the following:
1. For alternative and/or peremptory writs of mandamus or mandate, or other
appropriate relief, including a declaration or injunction, setting aside and voiding Respondents’
Decision to deny the Application and compelling Respondents to grant the Application for all
of the reasons alleged above;
2. For a declaratory judgment pursuant to Code Civ. Proc. § 1060, declaring that
SB 35, the HAA, or both, require the City to issue the streamlined ministerial permit for which
Petitioner applied, and a finding that a density bonus is applicable under the State Density
Bonus Law;
3. For a stay enjoining Respondents from denying the Application;
4, For costs of suit herein;
5. For reasonable attorneys’ fees under Code of Civil Procedure section 1021.5,
Government Code section 800 and/or 65589.5;
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
-13-ZACKS, FREEDMAN & PATTERSON, PC
235 MONTGOMERY STREET, SUITE 400
SAN FRANCISCO, CALIFORNIA 94104
COM NIN DAH BF wWwN
NHN NY NY NY NY NN NY Bee Be Be Be Re Re Be
oN AA KF BHF SO mM IR AHA BR WH
6. For any other relief that the Court deems just and proper.
Dated: June 12, 2019 ZACKS, FREEDMAN & PATTERSON, P.C.
AC
By: Ryan J. Patterson
Emily L. Brough
Attorneys for Petitioners
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
-14-“ “Vietor ia Pies, declete as follows
ewed. the administrative Sisiacy of the Project.
id penalty of: perjury under the laws of the State of California that the:
Brecited on JUNL | “2019
in, is true and correct.
~ Victoria Fierce235 MONTGOMERY STREET, SUITE 400
SAN FRANCISCO, CALIFORNIA 94104
ZACKS, FREEDMAN & PATTERSON, PC
Ce ADAH RW DY eE
> em me
BRRRBRERBBRESGESUIAGESSeS
VERIFICATION
- I, Sonja Trauss, declare as follows:
1, Iam a natural person and a resident of the State of California. Iam the founder
of the San Francisco Bay Area Renters-Federation.. | am authorized to verify this Petition for
Writs of Administrative Mandamus or Mandate and Complaint for Declaratory Relief on
behalf of this entity,
2. J have read the foregoing Petition for Writs of Administrative Mandamus and’
Mandate and Complaint for Declaratory Relief and know its contents, The matters stated in
the Petition for Writs of Administrative Mandamus and Mandate and Complaint for
Declaratory Relief are true of my own knowledge from having reviewed the administrative
history of the Project.
I declare under penalty of perjury under the laws of the State of California that the
Executed on, fue. (a » 2019
foregoing is true and correct.
onja Trauss
PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF
=16=
Preview
ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 CO we NI DAN BF WN NN NY NY KN NY DN DN NO eee oN AwA RB HBNH KF DO we ADAH BF wWwNYH eK SC RYAN J. PATTERSON (SBN 277971) EMILY L. BROUGH (SBN 284943) ZACKS, FREEDMAN & PATTERSON, PC 235 Montgomery Street, Suite 400 San Francisco, CA 94104 Tel: (415) 956-8100 Fax: (415) 288-9755 ryan@zfplaw.com emily@zpflaw.com Attorneys for Petitioners and Plaintiffs CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND; SAN FRANCISCO BAY AREA RENTERS FEDERATION; VICTORIA FIERCE; SONJA TRAUSS SUPERIOR COURT — STATE OF CALIFORNIA COUNTY OF SANTA CLARA — UNLIMITED CIVIL JURISDICTION CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND, SAN FRANCISCO BAY AREA RENTERS FEDERATION, VICTORIA FIERCE, and SONJA TRAUSS, Petitioners and Plaintiffs, vs. CITY OF LOS ALTOS; LOS ALTOS CITY COUNCIL; CITY OF LOS ALTOS COMMUNITY DEVELOPMENT DEPARTMENT; and DOES 1-25, Respondents and Defendants, 40 MAIN STREET OFFICES LLC, a limited liability company, Real Party in Interest. Case Number: PETITION FOR WRITS OF ADMINISTRATIVE MANDAMUS OR MANDATE (CCP § 1094.5 or § 1085; GOV, CODE § 65913.4; GOV. CODE § 65589.5); COMPLAINT FOR DECLARATORY RELIEF (CCP § 1060); AND IMMEDIATE REQUEST FOR STAY PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF «leEET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY S' SCO mem NIDA BR WN NY NY NY NY NN NY YN NO ee ee a sR CIDA A KROHN KF DO we AIDA BF WH & Petitioners and plaintiffs CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND, SAN FRANCISCO BAY AREA RENTERS FEDERATION, VICTORIA FIERCE, and SONJA TRAUSS (collectively, “Petitioners”), by and through their attorneys, Zacks, Freedman & Patterson, PC, file this petition for writs of administrative mandamus and/or mandate and complaint for declaratory relief against respondents and defendants CITY OF LOS ALTOS, LOS ALTOS CITY COUNCIL, CITY OF LOS ALTOS COMMUNITY DEVELOPMENT DEPARTMENT, and DOES 1-25 (collectively, “Respondents”), to set aside and void Respondents’ decision denying ministerial permit applications nos. 18-D-07 and 18-UP-10 (collectively, “Application”) for the 40 Main Street Project (“Project”), located at 40 Main Street, Los Altos, CA (“Property”), and to compel Respondents to approve the Application and Project. In addition to the aforesaid writs of mandate/mandamus and declaratory relief, Petitioners also seek issuance of an immediate stay. Petitioners allege as follows: PARTIES TO THE ACTION 1. Petitioner and Plaintiff California Renters Legal Advocacy and Education Fund (“CaRLA”) is a California nonprofit corporation in good standing in this state, and lawfully allowed to bring and maintain this Petition and Complaint. CaRLA was formed, in part, to advocate for the construction of housing throughout the state, including in Los Altos, to meet the needs of California residents. This advocacy includes litigation under certain state laws that limit the ability of local governments to limit housing production, including California’s Housing Accountability Act, Government Code § 65589.5 et seq. (“HAA”), Government Code section 65913.4 (“SB 35”), and the State Density Bonus Law, Government Code section 65915, et seq. (the “State Density Bonus Law”). CaRLA has a direct and substantial interest in ensuring that Los Altos complies with state laws requiring that it participate in addressing the housing needs of California residents. It acts on behalf of its members, though its actions benefit all similarly-situated residents and intended residents. CaRLA has a substantial interest in ensuring that Los Altos’ decisions are in conformity with the requirements of law, and in having those requirements properly executed and its public duties enforced. On April 8, 2019, PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -2-ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 Do eI DAW FF WN NN YN YN NNN SY eee ee ee ee CN DAA RB HNH KF SCO we ADA BF WN KH SS CaRLA submitted written objections to the Los Altos City Council in support of the Project sponsor’s appeal of Application denial. CaRLA brings this Petition on its own behalf and on behalf of others affected by Respondents’ failure to comply with state law as alleged herein. The Property is located within Santa Clara County and Judicial District. 2. Petitioner and Plaintiff San Francisco Bay Area Renters Federation (the “Federation”) is an unincorporated association of renters whose mission includes advocating for the construction of housing to meet the needs of California residents, including in Los Altos, through the HAA, SB 35, and State Density Bonus Law. Its members are residents of the State of California and cut across socioeconomic lines, including members with very low, low, moderate, middle, and higher incomes. The Federation has a direct and substantial interest in ensuring that Los Altos complies with state laws requiring that it participate in addressing the housing needs of California residents. The Federation actively supports housing development projects and opposes efforts to disapprove or reduce the density of housing development projects. It acts on behalf of its members, though its actions benefit all similarly- situated residents and intended residents. Members of the Federation were, are, will be, and would be eligible to apply for residency in the Project at issue in this petition. As potential residents of the Project, members of the Federation are affected by Los Altos’ actions challenged herein. The Federation has a substantial interest in ensuring that Los Altos’ decisions are in conformity with the requirements of law, and in having those requirements properly executed and its public duties enforced. Its members, as well as the general public, will be adversely affected by impacts resulting from the acts described herein and are aggrieved by the acts, decisions, and omissions of Los Altos as alleged in this petition. The Federation is suing on its own behalf, on behalf of its members, and on behalf of others affected by Los Altos’ acts pertaining to the Project, as well as all potential applicants and residents of the Project. 3. Petitioner and Plaintiff Victoria Fierce is a natural person and a resident of the State of California, and a co-executive director of CaRLA. Fierce was, is, and will be “a person PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 3+ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 CSOD Ome NIN DHA BW NY NY NY NY NY KN NN YN YN Be He BeBe Be Be Be Be Be SIA AKRON FEF SO ww NIA NHN BF WN ES who would be eligible to apply for residency in the development,” i.e., the Project. Fierce has a substantial interest in ensuring that Respondents’ decisions are in conformity with the requirements of law, that those requirements are properly executed, and that the public duties of Los Altos are enforced. 4. Petitioner and Plaintiff Sonja Trauss is a natural person and a resident of the State of California, a co-executive director of CaRLA, and the founder of the Federation. Trauss was, is, and will be “a person who would be eligible to apply for residency in the development,” i.e., the Project. Trauss has.a substantial interest in ensuring that Respondents’ decisions are in conformity with the requirements of law, that those requirements are properly executed, and that the public duties of Respondents are enforced. 5. Respondent and Defendant City of Los Altos (the “City”) is a municipality of the State of California. 6. Respondent and Defendant Los Altos City Council (the “Council”) is a quasi- judicial, policy making and supervisory body, which hears appeals and determines City policies and service standards. 7. Respondent and Defendant City of Los Altos Community Development Department (“CDD”) is an agency integral to the City of Los Altos. 8. Real Party in Interest 40 Main Street Offices LLC is a California limited liability company that is and was at all times mentioned herein qualified to do business in California. Real Party in Interest owns the Property and is the Project applicant. 9. Petitioners are not aware of the identities of respondent/defendants DOES 1-25, who are responsible for the acts and omissions alleged herein and that caused damage to Petitioners; therefore Petitioners will amend this Petition and Complaint when the true identities of DOES 1-25 are ascertained. 10. Petitioners are informed and believe that at all times mentioned in this Petition and Complaint, all respondent/defendants were the agents or employees of their co- Respondent/Defendant, and in doing the things alleged in this Complaint, were acting within the course and scope of that agency and employment. PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 4.ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 Oo Om IY DA BW NY YVR YK NK NH NKNNN Bee es Be ee Be eB CIDA KR BONS SF SOMA AAA RH NH SS BACKGROUND FACTS 11. The Property sits within a Commercial Retail Sales/Office-Administrative District of Los Altos, which permits a full range of retail, office, mixed-use residential, and commercial services, and is within the City’s public parking plaza system. The Project proposes a five-story mixed-use building with two levels of underground parking. The proposed uses include a first-level office space and fifteen (15) residential rental units on levels two though five. Two of the fifteen (15) residential rental units are proposed as below market rate (BMR) units. A total of eighteen (18) parking spaces and storage areas are provided between the two underground parking levels. The Project includes the removal of existing structures, site improvements, plants, and landscaping. 12. The Project sponsor initially submitted an application for a 3-story office project in 2010 and resubmitted it again in 2013. The City denied the 2010 application, and initially denied the 2013 application based on a claim the application was incomplete, even after the Project sponsor supplemented the application with the additional materials requested by the City. After finally acknowledging that the application was “complete” in 2016, the City refused to approve it and instead demanded additional reports, third party review processes, and numerous design changes. After the Project sponsor redesigned the prior project to meet the City’s demands, the Planning Commission again rejected that project in June of 2018, indicating that it would oppose any future attempts to build any project on the Property that was not completely redesigned and reduced in size. 13. On November 8, 2018, after nine years of attempts to build an office on the Property had failed, the Project sponsor redesigned the Project to provide housing to comply with SB 35, and submitted the Application under SB 35, SB 35 provides a streamlined ministerial approval process for development projects that provide for at least 10% BMR residential units. Recognizing California’s dire need for more affordable housing, the Legislature enacted SB 35 to accelerate the permitting process for such housing development projects. 14. To qualify for SB 35 approval, the proposed project must be planned for a site PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF SeZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 oO IN DH BRB WN NN NY NY YN NNN HY Bee ee ee ee Crd AA FB HN KF DO eA DA BwWNH eH SS whose general plan and zoning allow for residential use or mixed-use, and if a mixed-use project is proposed, at least two-thirds of the development must be for residential use. SB 35 also requires that, on non-public works projects, the project applicant certify that all construction workers employed thereon shall be paid the prevailing wage. (Gov. Code §65913.4(a)(8)(5)) The project must also comply with “objective” — rather than subjective — general plan, zoning, and design review standards. Specifically, these are “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(a)(5)) As part of the Application, the Project sponsor submitted detailed materials to the City demonstrating that the Project is zoning compliant, general plan compliant, and fully complies with SB 35. 15. SB 35 also provides that project applicants are entitled to utilize the State Density Bonus Law when preparing and submitting SB 35 Projects. Among other things, the State Density Bonus Law encourages construction of additional housing by allowing project applicants to add additional units beyond the local jurisdiction’s limits, in exchange for building affordable or senior units. The State Density Bonus Law is specifically intended to help make the development of such housing economically feasible. The Project sponsor here included a request for a density bonus in the Application. Because the Project was fully compliant with SB 35, Respondents were required to grant the density bonus under the State Density Bonus Law. 16. The Project is also subject to and was submitted under the HAA, Under the HAA, municipalities are prohibited from imposing any conditions that have the same effect on the ability of the project to provide housing. Municipalities are only permitted to deny a project that meets HAA criteria if it can make findings, based on a preponderance of the evidence, that the project would have a specific, adverse impact upon public health or safety standards. (Gov. Code §65589.5(i), (j).) 17. “The Legislature’s intent in enacting [the HAA] in 1982 and in expanding its PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -6-1 || provisions since then was to significantly increase the approval and construction of new 2 ||housing for all economic ‘segments of California’s communities by meaningfully and 3 || effectively curbing the capability of local governments to deny, reduce the density for, or 4 ||render infeasible housing development projects and emergency shelters. That intent has not 5 || been fulfilled.” (Gov’t Code § 65589.5(a)(2)(K).) 6 18. The HAA requires, inter alia: 7 When a proposed housing development project complies with 8 applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time 9 that the housing development project’s application is determined 10 to be complete, but the local agency proposes to disapprove the 9 project or to approve it upon the condition that the project be Ze 11 developed at a lower density, the local agency shall base its 9 ss decision regarding the proposed housing development project ae 3 12 upon written findings supported by substantial evidence on the Bo Z 13 record that both.of the following conditions exist: <6 aoe &B E 2 14 (1) The housing development project would have a specific, E z S adverse impact upon the public health or safety unless the project Sg 15 is disapproved or approved upon the condition that the project be agg loped : in thi aph go Z 16 developed at a lower density. As used in this paragraph, a Sea specific, adverse impact” means a significant, quantifiable, z g “specific, ad i ” ignifi ifiabl ae 17 direct, 8 ae and unavoidable impact, based on objective, identified written a 18 public health or safety standards, policies, or conditions as they 19 existed on the date the application was deemed complete. 20 (2) There is no feasible method to satisfactorily mitigate or avoid 1 the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the 22 approval of the project upon the condition that it be developed at a lower density. 23 24 (Gov. Code § 65589.5(j).) 25 19, The HAA provides that a housing development project shall be: 26 deemed consistent, compliant, and in conformity with an 27 . . . applicable plan, program, policy, ordinance, standard, 28 requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF ~7-ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104. wo eo NIN DAH BF WN NN YY NY NY NNN S&S HS ee Be Be eB eB eB ond AA RB HBNH KF DBO eI DA BRB wWNH SS the housing development project... is consistent, compliant, or in conformity. (Gov’t Code § 65889.5(£)(4).) 20. Further, the HAA must be construed broadly and “consistent with, and in promotion of, the statewide goal of a sufficient supply of decent housing to meet the needs of all Californians.” (Gov’t Code § 65589(d).) In order to deny a housing development project, Los Altos has the burden of either proving that the “proposed project in some manner fails to comply with ‘applicable, objective general plan and zoning standards and criteria, including design review standards. . .” ” or making the findings required by the HAA. (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1081.) 21. SB 35 and the HAA impose strict statutory deadlines for municipal review. For proposed projects of 150 residential units or fewer, SB 35 requires that the municipality decide whether the project conflicts with any of its objective standards, along with an explanation of that conflict, within 60 days after the submission of an application. (Gov. Code §65913.4(b)(1).) And, if a city does not do so, “the development shall be deemed to satisfy the objective planning standards.” (Gov. Code §65913.4(b)(2).) If the project is eligible, the municipality’s review of the project must be completed and the permit issued or denied within 90 days after the submission of the application. (Gov. Code §65913.4(c)(1)(A).) That review “shall be objective and be 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” and “shall not in any way inhibit, chill, or preclude the ministerial approval” as provided for under SB 35. (Gov. Code §65913.4(c)(1).) Under the HAA, if the municipality determines that a proposed project (with 150 units or less) is not consistent with the HAA, it “shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons” used to make that determination within 30 days of the completion of the application. (Gov. Code § 65589.5(j)(2)(A)(i).) Like under SB 35, the PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF 8.ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 0 ONAN BR WN NN NY NY NY NY NY NN NO BeBe Be Be Be Be Be Be Bee CoIA AKRON HE SO eH NIN DAA BRB wWNH HE TD proposed project shall be deemed consistent with the HAA if the municipality does not meet the statutory deadline. (Gov. Code § 65589.5(j)(2)(B).) 22. On December 7, 2018, Respondents responded to the Application, erroneously stating that their “review of the [P]roject indicates that it is not subject to the provisions of SB 35” (the “Determination”). In the Determination, the City made the following findings as to why the Project allegedly did not meet SB 35: (1) The Project purportedly did not provide the requisite percentage of BMR units under SB 35; and (2) The Project was purportedly inconsistent with the City’s objective zoning standards because it did not “provide the required number of off-street residential and visitor parking spaces nor adequate access/egress” to the proposed off street parking. The first finding was wrong, which the City later admitted. The second finding was not “objective”, as required under SB 35 and the HAA, nor did the City give any further explanation for this finding. Along with its Determination, the City also sent a separate “Notice of Incomplete Application,” stating that if the Project sponsor “elect{s] to pursue other approval/permits avenues for the project that is the subject of this notice, the applications, fees, deposits, studies, and information contained in the attached Notice of Incomplete Application are required to continue an evaluation of the [P]roject.” 23. on January 9, 2018, the Project sponsor submitted a letter to the City challenging the City’s Determination on its face: First, because the Project legally met the BMR requirements under SB 35; second, because the Determination failed to identify any noncompliance with any objective standard of SB 35, and further failed to provide an ‘explanation or specific code section reference for any purported noncompliance. Indeed, because the City failed to identify any such noncompliance under SB 35 and the HAA, the Application has been deemed compliant with all objective standards under those sections. 24. On February 6, 2019, the City responded, conceding that the Project had met the applicable requirements for BMR units under SB 35. But the City nevertheless now required further information about the parking, prior to approval of the Project under SB 35 or approval of the Project under the HAA, or the request for a density bonus under the State PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -9-235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 ZACKS, FREEDMAN & PATTERSON, PC SOU mI DH BF WN | NN YN NY NY NNN SB Bee Be we eB Be ee oN AA KR BON KF SO we NI DAH BP WN Density Bonus Law. The City further responded that because the Application was “incomplete,” SB 35 purportedly did not apply. This statement was contrary to the findings provided in the City’s Determination, whereby the City expressly determined that the Project was not subject to SB 35, and only directed the Project sponsor to submit the materials listed on the Notice of Incomplete Application if the Project sponsor “elect[ed] fo pursue other approval/permits avenues for the project.” That is, approvals/permits outside of this SB 35 Application. 25. Thereafter, on February 21, 2019, the City erroneously notified the Project sponsor that the denial of the Application was subject to an appeal under Los Altos Municipal Code, even though that Code specifically provides that there is no right to appeal to the Council for ministerial acts. (Los Altos Municipal Code section 1.12.020) The Project sponsor filed an appeal in response that day, under protest (the “Appeal”). The Appeal hearing was thereafter scheduled for April 9, 2019. 26. On March 15, 2019, the Project sponsor provided to Respondents a memorandum from the California Department of Housing and Community Development (“HCD”), dated March 11, 2019. In this memorandum, the HCD explained that: (1) a 60-day determination (such as the Determination) was required to include references to the specific objective standards with which the Project purportedly conflicts, (2) that merely raising concerns about “adequate” access to parking, with no citation to any specific code section, was an insufficient basis for denial and impermissibly implied a “subjective” determination which is prohibited by SB 35, (3) when a city fails to meet its obligation to identify a specific standard, the Project is deemed to comply with the standards, and (4) a locality cannot demand that an SB 35 applicant submit all of the material the locality requires for discretionary permit applications as a precondition to granting an SB 35 permit. 27. Prior to the Appeal hearing, the City published a Staff Report. In an apparent attempt to retroactively legitimize its rejection of the Application, the Staff Report identified a handful of new standards — none of which were included in the Determination — with which the PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -10-SAN FRANCISCO, CALIFORNIA 94104 ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 Co em D A BRB WN NN KY NY YN NNN SY Se BP Be ee eB Be eB eI AA RF HN KF SOHN DAN BF wWwNH KE OD Project allegedly conflicted. The Staff Report did not include, or describe, or indicate that it had considered the HCD memorandum that the Project sponsor had provided to the City on March 15. 28. Petitioners submitted written objections to the Council in support of the Appeal on April 8, 2019. 29. A hearing was held on the Appeal on April 9, 2019, where the Council voted to deny the Appeal for wholly separate reasons than those listed in the Determination. On April 23, 2019, the Council adopted Resolution No. 2019-13, denying the Appeal, and affirming the denial of the Application. FIRST CAUSE OF ACTION (Writ of Mandate CCP § 1094.5 and/or § 1085; Gov. Code § 65913.4; Gov. Code § 65589.5 — Against All Respondents) 30. Petitioners incorporate here by reference the allegations contained in Paragraphs 1 through 29 of this Petition and Complaint. 31. Santa Clara County Superior Court has initial jurisdiction of the matters alleged herein pursuant to Code of Civil Procedure §§ 1094.5 or 1085, which authorize Petitioners to seek a writ of mandate/mandamus, and which authorize the Court to review and set aside public agency decisions involving a prejudicial abuse of discretion and/or to compel Respondents’ performance of their ministerial and/or legal duties. Venue is proper pursuant to Code of Civil Procedure § 394(a), which provides that “[a]n action... against a. . . city and county... may be tried in [that] .. . city and county... .” 32. Petitioners request the Court issue a writ of mandate or mandamus, setting aside and voiding Respondents’ Determination and denial of the Appeal and to instead direct Respondents to approve the Application as required under SB 35, the HAA, and the State Density Bonus Law. Petitioners seek an immediate stay to enjoin Respondents from denying the Application. 33. Respondents’ Determination and denial of the Appeal was a prejudicial abuse of discretion in that Respondents did not proceed as required by law, their decision is not PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -l-ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 oem IN DAN BR WN HE NN YN NHN NNN eee e eB eB eB ee oN Aan BNH EF Se we AI AA BR WH HE TS supported by the findings, and/or the findings are not supported by the evidence, because: The Project complies with SB 35, the HAA, and the State Density Bonus Law, and Respondents failed to identify any legally sufficient grounds to deny the Application under either SB 35, the HAA, or the State Density Bonus Law; Respondents’ Determination failed to identify any such grounds for denial of the Application within the permissible timeframes of SB 35 and the HAA; Respondents violated SB 35 by denying the Application on incompleteness grounds; Respondents violated SB 35 by denying the Application on bases for discretionary permit applications and/or other reasons not specially set forth in SB 35. 34. Further, in denying the Application on the aforesaid bases, Respondents exceeded their jurisdiction and failed to comply with their ministerial duty to approve the Application under SB 35 and act in accordance with the HAA. 35. Because Respondents’ findings are not supported by the evidence and their decision is contrary to well established law, the standard of review is substantial evidence and/or preponderance of the evidence, and Respondents have not met their burden. 36. Petitioners exhausted the available administrative remedies required to be pursued by them by submitting written comments to the Council during its consideration of the Determination during the Appeal on April 8, 2019. 37. Petitioners have a beneficial interest in ensuring the Application is granted, so that Petitioners’ and its members’ statutory rights are not infringed upon. Petitioners have a direct and substantial interest in ensuring that Los Altos complies with state laws requiring that it participate in addressing the housing needs of California residents, and in ensuring that Los Altos’ decisions are in conformity with the requirements of law, and in having those requirements properly executed and its public duties enforced. Petitioners have a clear, present, and legal right to Respondents’ performance of its legal duties as described herein, and Respondents have failed and refused to perform their duties and/or abused its discretion in doing so. Petitioners do not have a plain, speedy, or adequate remedy in the ordinary course of law, and therefore writ relief is necessary to compel Respondents to correct their actions, which are unlawful and in excess of their authority. PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -12-ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 CU m NIN DHA BF WN RR NYY NH NNN NS Fee ee ee ew cr AAR ONS SF SOMA AA RWHNH 38. Because Respondents’ decision to deny the Application was illegal, Petitioners are entitled to attorneys’ fees under CCP § 1021.5, Govt. Code § 800(a), and/or 65589.5. SECOND CAUSE OF ACTION (Declaratory Relief - Code Civ. Proc. § 1060 — Against All Respondents) 39. Petitioners incorporate here by reference the allegations contained in Paragraphs 1 through 38 of this Petition and Complaint. 40. An actual controversy has arisen and now exists between Petitioners and Respondents concerning the obligations and duties of Respondents under California statutory law. As set forth herein, Petitioner contends that SB 35, the HAA, and the State Density Bonus Law require Respondents to approve the Application. Petitioners are informed and believe, and on that basis allege, that Respondents contend in all respects to the contrary. A judicial determination and declaration as to the applicability of SB 35, the HAA, and the State Density Bonus Law and of the resulting legal obligations of Respondents is therefore necessary and appropriate. WHEREFORE, Petitioners demand judgment against Respondents for the following: 1. For alternative and/or peremptory writs of mandamus or mandate, or other appropriate relief, including a declaration or injunction, setting aside and voiding Respondents’ Decision to deny the Application and compelling Respondents to grant the Application for all of the reasons alleged above; 2. For a declaratory judgment pursuant to Code Civ. Proc. § 1060, declaring that SB 35, the HAA, or both, require the City to issue the streamlined ministerial permit for which Petitioner applied, and a finding that a density bonus is applicable under the State Density Bonus Law; 3. For a stay enjoining Respondents from denying the Application; 4, For costs of suit herein; 5. For reasonable attorneys’ fees under Code of Civil Procedure section 1021.5, Government Code section 800 and/or 65589.5; PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -13-ZACKS, FREEDMAN & PATTERSON, PC 235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 COM NIN DAH BF wWwN NHN NY NY NY NY NN NY Bee Be Be Be Re Re Be oN AA KF BHF SO mM IR AHA BR WH 6. For any other relief that the Court deems just and proper. Dated: June 12, 2019 ZACKS, FREEDMAN & PATTERSON, P.C. AC By: Ryan J. Patterson Emily L. Brough Attorneys for Petitioners PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF -14-“ “Vietor ia Pies, declete as follows ewed. the administrative Sisiacy of the Project. id penalty of: perjury under the laws of the State of California that the: Brecited on JUNL | “2019 in, is true and correct. ~ Victoria Fierce235 MONTGOMERY STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94104 ZACKS, FREEDMAN & PATTERSON, PC Ce ADAH RW DY eE > em me BRRRBRERBBRESGESUIAGESSeS VERIFICATION - I, Sonja Trauss, declare as follows: 1, Iam a natural person and a resident of the State of California. Iam the founder of the San Francisco Bay Area Renters-Federation.. | am authorized to verify this Petition for Writs of Administrative Mandamus or Mandate and Complaint for Declaratory Relief on behalf of this entity, 2. J have read the foregoing Petition for Writs of Administrative Mandamus and’ Mandate and Complaint for Declaratory Relief and know its contents, The matters stated in the Petition for Writs of Administrative Mandamus and Mandate and Complaint for Declaratory Relief are true of my own knowledge from having reviewed the administrative history of the Project. I declare under penalty of perjury under the laws of the State of California that the Executed on, fue. (a » 2019 foregoing is true and correct. onja Trauss PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS AND/OR MANDATE AND COMPLAINT FOR DECLARATORY RELIEF =16=