Motion-Secondary: SAN FRANCISCO BAY AREA RENTERS FEDERATION, et al vs. CITY OF SAN MATEO, et al

On April 26, 2018 a Motion-Secondary was filed involving a dispute between California Renters Legal Advocacy And Education Fund, Fierce, Victoria, Moon, John, San Francisco Bay Area Renters Federation, and City Of San Mateo, City Of San Mateo Planning Commission, San Mateo City Council, for (43) Unlimited Other Petition (Not Spec) in the District Court of San Mateo County.

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9/19/2019

RYAN J. PATTERSON (SBN 277971)
SARAH M. K. I-IOFFMAN (SBN 308568)
ZACKS, FRFFDMAN k PATTERSON, PC
235 Montgomery Street, Suite 400
San Francisco, CA 94104
Tel; (415) 956-8100
Fax: (415) 288-9755
Attorneys for Petitioners
San Francisco Bay Area Renters Federation,
California Renters I.egal Advocacy and
Education Fund, Victoria Fierce, and John Moon

SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SAN MATEO — UNI.IMITED JURISDICTION

10 SAN FRANCISCO BAY AREA RENTERS CASE NO. 18CIV02105
FEDERATION, CALIFORNIA RENTERS
11 LEGAL ADVOCACY AND EDUCATION PFTITIONERS'UPPLEMENTAl. BRIEF
FUND, VICTORIA FIERCE, and JOIIN MOON,
12
Petitioners, (CCP 1094.5; Govt.
I'I Code IJ65589.5)
13
vs. Date: October 24, 2019
14 Time: 2:00 p.m.
C11 Y OF SAN MATEO, SAN MA'fEO CITY Dept.: Courtroom 2G
15
COUNCIL, and CITY OF SAN MATEO Judge: Hon. Joseph C. Scott
16 PLANNING COMMISSION,

17 Respondents,
18
TONY MEHMET GUNDOGDU and AYNUR V.
19 GUNDOGDU,

20 Real Parties in Interest.

28
PETITIONERS'UPPLEMENTAL BRIEF
TABLE OF CONTENTS
I. INTRODUCTION

11. SUMMARY.

A. Issue I:The Burden of Proof and Standard of Review

1. What is the burden of proof applicable to this matter? .....

2. Is Gov. Code Ij65589.5(t)(4) applicable to this matter? ...

3. Does Gov. Code PI 65589.5(fl(4) eliminate the power of a government entity to
exercise discretion in determining which "plan, program, policy, ordinance,
standards, or other similar requirement" is applicable? .......................................2

10 4. Does Gov. Code Ij 65589.5(f)(4) eliminate the power of a government entity to
deny a project if there is a some substantial evidence that would allow a
reasonable person to conclude it is code-compliant? .......................................... 2
12 Must a Superior Court ruling on a Petition for Writ of Mandate Alleging a
5.
13
violation of Gov, Code Ij 65589.5(fl(4) give deference to the government
entity's findings? .2
14
B. Issue 2: Does the HAA Preclude the Use of Discretionary Guidelines?
15
C. Issue 3: What is the Appropriate Remedy if a Writ of Mandate Should Issue? ...........3
16

17 III. ARGUMENT

18 A. The Burden of Proof and Standard of Review „,

19 1.The HAA Cases, the Public Agency Bears the Burden of Proving there is No
20 Substantial Evidence that Would Enable a Reasonable Person to Conclude the
Project is Code-Compliant..
21
2. The Plain Language of thc HAA Sets Out the Burden of Proof and Standard of
22 Review .5

23
3. To the Extent the HAA is Inconsistent with CCP II1094.5, the HAA Prevails
24 Because Specific Statutory Provisions Displace the General ................................7

25 4. The Purpose of the HAA is to Promote I-lousing Creation ... .... I 0

26
B. The HAA Precludes the Use of Discretionary Guidelines to Deny a Project............ 1 I
27
C. Where an Agency has Acted in Bad Faith in Denying a Project, the Appropriate
Remedy if a Writ of Mandate Should Issue is an Order Approving the Project ....... 14
PFTITIONERS'UPPLEMENTAL BRIEF
SION ..
I
IV. CONCI
IU. IJ
CONCLUSION..... .... ...15

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PETITIONERS'UPPLEMENTAL
PETITIONERS’ SUPPLEMENTAL BRIFF BRIEF
ii
TAIILK OF AUTHORITIKS
Cases
Bailey v. Superior Court ofXern County (1977) 19 Cal.3d 970..

Bixhy v. Pierno (1971) 4 Cal.3d 130.. ..4,7
Califovnia Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15 ... 7

6 California Teachevs Assn. v, Governing Bd. ofRialto Unified School Dist., (1997)
14 Cal.4th 627. 7, 10
7
Chandis Securities Co. v.City of Dana Point, 52 Cal.App.4th 475 ............................................
13
8
Cvoss v. Superior Court (App. 2 Dist. 2017) 217 Cahkptr.3d 569. 7
9
Davis v. Riversow"ce Life insurance Company (2017) 240 F.Supp.3d 1011 ................................ 4
10
Desmond v County of Contra Costa (1993) 21 Cal.App.4th 330 3
U 11
East West Bank. v. Rio School District (Cal. App. 2d Dist. 2015) 235 Cal.App.4th 742 ............ 9
cx 12
iewg Garcia v. McCutchen (1997) 6 Cal.4th 469 . 4
13
c 11onchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066.............................. 5,
10, 11, 14
P,

v:
14
Mahdavi v. Fair Fmployment Practice Com'n (App. 1 Dist. 1977)136 Cal.App.3d 326 ............ 4
15
Maricela C. v. Superior Court (1008) 66 Cal.App.4th 1138 ...4,5
G '- 16
Northcross v. Boai"d of Fducation, 412 U.S. 427 (1973) ., 13
1G
17
N North PaciJica, LLC v. City of Paci fica (2002) 234 F.Supp.2d 1053 ...................................... 5,
10
18
Nor.th Pacifica LLC v. City of Pacifica (2008) 526 F.3d 478 . 5
19
Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366 .. 7
20
Schafer v City of Los Angeles (2015) 237 Cal.4th 1250.. 4
21
Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206. 3
22
Securities di Exchange Comm'n v. Chenery Corp., (1947) 332 U, S. 194.................................. 13
23
Slatkin v. White (2002) 102 Cal.App.4th 963. 5 6
24
Songstad v. Superior Court (2001) 93 Cal.App.4th 1202. .7
25
Tuolumne Jobs d'cSmall Business Alliance v, Superior Court (2014) 59 Cal.4th 1029 .............
10
26

PETITIONERS'UPPLEMFNTAL BRIEF
Statutes
Code Civ. Proc. Ij1094.5.. 3,6
Code Civ. Proc. $ 1094.5(b).

Code Civ. Proc. II1094.5(c) . I, 4, 6
Code Civ. Proc, fg1858.

Gov. Code Ij65589.5 .. 1, 5, 6

7 Gov. Code $ 65589.5(a)(1)(B) . 9

8 Gov. Code Ij65589.5(a)(I)(K). 9

9 Gov. Code Ij65589.5(a)(1)(L).. 1,9
10 Gov. Code PI65589.5(I)(4) . I, 2, 4, 5, 6, 7, 8, 9,I0

11
Gov. Code Ij65589.5(j)(1).. 2,5,10
12 Gov. Code 5,9,15
Ij65589.5(j)(2)..
13
Gov. Code I)65589.5(k)(I)(A). 3,13
14
Gov. Code Ij65589.5(k)(])(B). 3, 14
15
Gov. Code $ 65589.5(k)(1)(C) . 3,14
16
Gov. Code Ij65589.6. . I, 3, 5, 6. 7
17
Gov. Code II65913.4. 12, 13
18
Other Authorities
19
13lack'sLaw Dictionary (10'" ed. 2014)................. . 12
20
League of California Cities, The California Municipal law Handbook (2018), Ij10.176 .......... 8
21

PETITIONERS'UPPLFMENTAL BRIEF
I I. INTRODUCTION
Faced with a drastic housing crisis, the California legislature responded with a dramatic

solution. The I lousing Accountability Act (Gov. Code II65889.5 et seq., "HAA") represents a sea

change in how local agencies are required to review and approve proposed housing development

projects. The HAA eliminated the broad discretion that was traditionally afforded to local agencies,
instead imposing a mandatory duty to approve code-compliant projects. In short, the HAA severely

limits agencies'ubjective discretion. It also eliminates the judicial deference that is usually

afforded to local agencies, reversing the burden of proof so that an agency must affirmatively justify

its decision to deny a housing development project.

10 Although there are few published cases that interpret the HAA, the legislative history, relevant

treatises, and canons of statutory construction lead to an inexorable conclusion that the IIAA must
Z u 12 be interpreted broadly to promote housing creation. The plain language of the HAA itself says this is
I

13 the case. (Gov. Code II65589.5(a)(1)(L).)
0
4 v;
14 The Court's Minute Order raises important questions regarding the application of the HAA,
p.C
y 88 15 some of which have not yet been answered by the courts. I-lowever, as set out in the following
a 0 z
C m 16 discussion, the plain wording and legislative history of the IIAA provide clear answers.

U 17 IL SUMMARY
N Petitioners'esponses to the questions raised by the Court are briefly smnmarized as follows.
18

19 A. Issue 1: The Burden of Proof and Standard of Review.

20 The Minute Order asks five questions related to the burden of proof and standard of review:

21 1. What is the burden ofproof applicable to this matter?

22 The burden of proof is on local agencies to justify their denial of a code-compliant housing

23 development project. (Gov. Code $ 65589.6.) If an agency contends a project is not code-compliant,

24 it must show there is no "substantial evidence that would enable a reasonable person to conclude" it

25 is compliant. (Gov. Code 65589.5(I)(4).) As a specific provision that applies to HAA cases,
I'I

26 ) 65589.5(f)(4) prevails over the general applicability of ( 1094.5(c).

PETITIONERS'UPPLEMENT&. BRIEF
2. Is Gov. Code g 65589.5(f}(4) applicable to this matter?

Yes. Gov. Code Ij65589.5(f}(4) applies to this Project because it is a "housing development pmject"
3 as defined by the HAA. (Gov. Code Ij65589.5(h)(2).)
3. Does Gov. Code tJ 65589.5(()(4) eliminate tlie power of a government entity to
exercise discretion in determining wliich "plan, program, policy, ordinance, standards, or
other similar requirement" is applicable?
Yes. The questions of applicability and compliance are two sides of the same coin. If a

standard is not "applicable," a project effectively complies with it. Accordingly, if there is
substantial evidence that standards are not "applicable" to a project, it is the same as the project

complying with all applicable standards. As a result, the agency cannot apply that standard to deny
10 the project.

V 4. Does Gov. Code g 65589.5(f)(4) eliminate the power of a government entity to
v
deny a project if there is some substantial evidence that would allow a reasonable person to
0U) Ow~ 12 conclude it is code-compliant?
13 Yes. By its plain language, Gov. Code Ij65589.5(f)(4) eliminates the power of a government
4',:C
48 14 entity to exercise discretion to deny a project if there is "substantial evidence that would allow a
z 8
15 reasonable person to conclude it is consistent, compliant, or in conformity." The legislative history
6
16 confirms that this was the legislature's intent.
IJ2z
'z
V
17 5. Must a Superior Court ruling on a Petition for Writ of Mandate alleging a
N
18 violation of Gov. Code g 65589.5N(4) give deference to the government entity's findings?
19 Yes. A Superior Court ruling on a Petition for Writ of Mandate alleging a violation of the
20 HAA must not give deference to the government entity's findings, because the HAA reverses the
21 "substantial evidence" standard of review in favor of Petitioners, as the legislative history explicitly
22 confirms.
23 B. Issue 2: Does the HAA Preclude the Use of Discretionary Guidelines?
24 Yes. The PIAA precludes the use of discretionary guidelines to deny residential housing
25 development project permits, because such guidelines are not "objective" standards. (Gov. Code Ij

26 65589.5(j)(I).) If a project complies with "applicable, objective general plan, zoning, and
27 subdivision standards and criteria, including design review standards" it must be approved. (Id.)

PETITIONERS'UPPLEMENTAL BIUEF
While local agencies can exercise discretion to apply limited design-related conditions to an

approved project, the HAA does not allow local agencies to use discretionary guidelines to deny a
project or reduce its density.
C. Issue 3: What is the Appropriate Remedy if a Writ of Mandate Should Issue?
If an agency has acted in bad faith in denying a project, the appropriate remedy is for the court
to "issue an order or judgment directing the local agency to approve the housing development
project." (Gov. Code FI65589.5(k)(1)(A).) Alternatively, if the agency has not acted in bad faith, the

court shall remand the project to the agency and order it to comply with the HAA within 60 days.

(Id.) If a local agency fails to comply with an order or judgment compelling compliance with the
10 HAA within 60 days, the court may "issue further orders as provided by law... including, but not

limited to, an order to vacate the decision of the local agency and to approve the housing
12 development project...." and "impose fines on a local agency that has violated this section" of at

least $ 10,000 per housing unit in the proposed project. (Gov. Code Ij65589.5(k)(1)(B)-(C).)

14 III. ARGUMENT

15
A. The Burden of Proof and Standard of Review
1. In HAA Cases. the Public APencv Bears the Burden of Provinu there is No Substantial
16 Evidence that Would Enable a Reasonable Person to Conclude the Proiect is Codc-
17 ~Cli t.

The HAA modifies both the traditional burden of proof and the standard of review under CCP
18
Ij1094.5. In ordinary mandamus cases, the burden is on the petitioner to prove that the respondent
19
agency abused its discretion or did not proceed in the manner required by law, so that its action
20
should be overturned. (CCP Ij1094.5(b).) The HAA shifts this burden of proof to the local agency,
21
providing that in any action challenging the denial of a project, the local agency "shall bear the
22
burden of proof that its decision has conformed to all of the conditions specified in [the HAA]."
23

24
(Gov. Code ) 65589.6.)
That is, the burden is on the local agency to justify its denial of a housing development

project, rather than on the petitioner to prove abuse of discretion. (Gov. Code ) 65589.6.) This is

very different from most land use litigation, where the petitioner must prove that the agency's
27

28
PETITIONERS'UPPLEMENTAI. BRIEF
decision should be overturned. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330,

336; Saad v. City of 8erkeley (1994) 24 Cal.App.4th 1206, 1212.)

Similarly, the HAA flips the standard of review in favor of petitioners. The 1-lAA reverses the
traditional application of the "substantial evidence" test, in that a housing development project must

be "deemed consistent, compliant, and in conformity" with an applicable code provision if there is
"substantial evidence that would allow a reasonable person to conclude" it is compliant. (Gov. Code

7 ( 6SS89.5(f)(4).)

Conversely, in non-HAA cases, a petitioner must ordinarily prove that the agency's findings
"are not supported by substantial evidence." (CCP II1094.5(c).) A judge in an administrative

10 mandamus proceeding does not aci as a trier of fact, but "reviews the administrative record to
determine whether substantial evidence in the record supports the agency's factual
12 findings." (Schafer v City of I os Angeles (2015) 237 Cal.4th 1250, 1260.) lf an agency's decision
13 "enjoys the support of substantial evidence, thai resolution should end the matter."( 8ixby v. Pierno

14 (1971) 4 Cal.3d 130, 148.) Even if a petitioner can advance counter-arguments or evidence that

15 challenges the agency's findings, the court cannot overturn an administrative finding simply
16 because a contrary finding would have been more reasonable. (Mahdavi v.Fair Fmployment
17 Practice Com'n (1997) 67 Cal.App.3d 326.) The opposite is true in an HAA case.
18 Gov. Code II65589.5(f)(4) applies to this Project because it proposes a "housing development
19 project" as defined by the HAA. (Gov. Code $ 65589.5(h)(2).) Because the HAA reverses this
20 "substantial evidence" test in favor of petitioners, if there is any substantial evidence supporting
21 approval of the housing development project, the Project must be approved. Accordingly, the
22 question here is not whether Respondents'enial of the Project is supported by substantial evidence.
23 Rather, the Court must determine whether there is any substantial evidence in the record that would
24 "enable a reasonable person to conclude" the project is code-compliant. lf the answer to this
25 question is "yes," the Petitioners must prevail.

28
PETITIONERS'UPPI.EMENTAL BRIEF
2. The Plain Lanuuaue of the EIAA Sets Out the Burden of Proof and Standard of
Review.
The first step in statutory interpretation is to look at the actual words of statute, giving them a

plain and commonsense meaning. (Garcia v.McCutche&t (1997) 6 Cal.4th 469.) The court looks

first to the "plain language of the statute, construing the provisions of the entire law, including its

object and policy, to ascertain the intent" of the legislature. (Davis v. Ri versouree Life Insurance

Company (2017) 240 F.Supp.3d 1011, citing Maricela C. v.Superior Court (1008) 66 Cal.App.4th

1138; Code Civ. Proc., Ij1858.) If a statute's language is clear and unambiguous, the court will give
effect to its plain meaning. (Slatkin v. IVhite (2002) 102 Cal.App.4th 963.)

The plain language of the HAA explicitly places the burden of proof on local agencies to
10 Section 65589.6 states:
justify any decision denying a housing development project.
U 11 In any action taken to challenge the validity of a decision by a city,
or and county to disapprove a project or approve a project
z=.
0
W'
VK 12
county,
upon the
city
condition that itbe developed at a lower density pursuant to
13 Section 65589.5, the city, county, or city and county shall bear the
burden of proof that its decision has conformed to all of the conditions
4.~ '„ 14 specified in Section 65589.5.
g 15 (Emph. added.)
8
v Ez
'z The courts have applied this provision in a straightforward way. For example, in Honchariiv v.
W 5 16
u )Cz
5A 17 County of Stanislaus, the Court of Appeal noted that the respondent agency had attempted to "meet
U
this burden by arguing that the applicant's project did not. comply with certain standards."

(Hancharitv v. County of Stanislaus, (2011) 200 Cal.App.4th 1066, 1079.) Ilowever, the agency had

20 "failed to demonstrate that appellant's proposed project does not comply with 'applicable, objective

21 general plan and zoning standards and criteria, including design review standards.'" (Honchariw,

22 supra, 200 Cal.App.4th 1077.) It should be noted that this case was decided under a prior iteration

23 of the HAA, which has since been strengthened through the addition of the "deemed compliance"

24 language in Gov. Code Ij65589.5(f)(4).

25 In Atorth Pacifiea, ILC v. City of Pacifica, the U.S. District Court (Cal. N.D.) cited Ij 65589.6,

26 noting that the HAA "imposes mandatory conditions limiting [a] City's discretion to deny the

permit." (North Pacifica, I I C v. City ofPacifica (2002) 234 F.Supp.2d 1053, disapproved on other

28
PEI'ITIONERS'UPPI.EMENTAL BRIEF
I grounds in North Pacifica LLC v. City of Pactfica (2008) 526 F.3d 478.) The particular conditions

2 specified in $ 65589.5, with which an agency must comply, include:
o the requirement that written "specific, adverse impact" findings, supported
by a preponderance of the evidence, be made to deny a code-compliant
housing development project (tj 65589.5(j)(1));
~ the requirement to provide an applicant with written documentation
identifying any areas of code noncompliance within thirty or sixty days,
depending on the size of the project 8 65589.5(j)(2); and
~ the requirement that a housing development project be "deemed consistent,
compliant, and in conformity" with an applicable code provision if there is
"substantial evidence that would allow a reasonable person to conclude'* that
it is consistent. (Ij 65589.5(f)(4).)
The HAA clearly shifts the burden to local agencies to prove that they have complied with all
10
such conditions set out in the HAA. (Ij65589.6.) For example, this means that the onus is on an

agency to prove that it has made the required "adverse impact" findings to deny a code-compliant

project and that such findings are supported by a preponderance of the evidence. Similarly, the

"deemed compliance" language in ) 65589.5(f)(4) is a condition of the HAA with which local
14
agencies must comply. And the burden is on local agencies to prove such compliance. (Gov. Code

16 $ 65589.6.)

It follows that, if a local agency wants to defend an HAA lawsuit on the basis that the project
is not code-compliant, the agency must show there is no "substantial evidence that would allow a

reasonable person to conclude" the project is compliant. This is the plain language used in the I IAA,
I9
and must be given effect. Similarly, if a standard is not "applicable," a project effectively complies

with it. The HAA does not draw a distinction between the standard of review for whether a standard
is applicable, as opposed to whether it is met — the test is the same. Accordingly, if there is

substantial evidence that a standard is not "applicable" to a project, it is the same as the project
23

24 complying with it. As a result, the agency cannot apply that standard to deny the project.
It does not follow from this, as Respondents contend, that an agency could never make a
25
finding of code non-compliance. If a project. proponent cannot advance "substantial evidence"
showing that a project is code-compliant, the I IAA would likely not apply to compel its approval.
27
However, if substantial evidence exists that would enable a reasonable person to conclude a project

PEI ITIONFRS'UPPLEMENTAL BRIEF
is code-compliant, an agency cannot justify its denial by combing through its codes to identify some

area of debatable, technical non-compliance at the end stages of the approval process.

Because the plain words of the statute are clear, it is not necessary for the Court's analysis to

go any further. (Slatkin v. N%ite (2002) 102 Cal.App.4th 963.) However, the rules of statutory

construction and legislative history of the HAA, addressed below, confirm that this is the correct

approach.
3. To the Extent the HAA is Inconsistent with CCP ti1094.5. the IIAA Prevails Because
Snecific Statutorv Provisions Disnlace the General.
The Court's Minute Order directed the parties to address "the extent, if any, to which" Gov.

Code II65589.5(f)(4) modifies or replaces Code Civ. Proc, 1094.5(c), which provides:
10 Where it is claimed that the findings are not supported by the evidence, in
cases in which the court is authorized by law to exercise its independent
V
c judgment on the evidence, abuse of discretion is established if the court
G 12 determines that the findings are not supported by the weight of the
0W~.—.
evidence. In all other cases, abuse of discretion is established if the court
13 determines that the findings are not supported by substantial evidence in
i ~ x
I 4 the light of the whole record.
n
14
This language represents the usual standard of review in non-HAA land use decisions, under
15
which local agencies are afforded considerable deference. If an agency can point to substantial
0 a 16
u ) x evidence supporting its decision, it will prevail. (Bixby v. Pierno, supra, 4 Cal.3d 148.) However,
lG
V 17
N the HAA's burden-shifting provision (tt 65589.6), combined with the "deemed compliant" language
18
in Gov. Code $ 65589.5(f)(4), sets out a different burden of proof and standard of review in HAA
19
cases.
20
It is a well-established principle of statutory construction that if a specific statutory provision
21
relating to a particular subject is inconsistent with a more general provision, the specific provision
22
controls. (Bailey v. Superior Court of Kern County (1977) 19 Cal.3d 970; Cross v. Superior Court
23
(App. 2 Dist. 2017) 217 Cal.Rptr.3d 569„Songstad v. Superior Court (2001) 93 Cal.App.4th 1202.)
24
As Code of Civil Procedure, $ 1859 provides:
25
In the construction of a statute the intention of the I,egislature, and in the
26 construction of the instrument the intention of the parties, is to be pursued, if
possible; and when a general and particular provision are inconsistent, the
27 latter is paramount to the former. So a particular intent will control a
28 general one that is inconsistent with it.
PEPtTIONERS'UPPLEMENTAL BRlEF
(Emphasis added.)
Here, because Ij65589.5(t)(4) specifically addresses the standard of review in HAA cases

regarding whether a project is code-compliant, it prevails over the more general language in II 1094.5

regarding the sufficiency of agency findings. The legislative history reveals that this is precisely
what Ij65589.5(f)(4) is intended to do. The key trend that emerges from the legislative history of the
IIAA is a continual narrowing of the scope of public agencies'iscretion, in favor of a stronger

HAA, to promote housing creation.
Section 65589.5(t)(4) was added to the HAA by Stats.2017, c. 378 (A.B.1515), and took
8
effect on January I, 2019. According to the author of AB 1515, the bill was intended to "strengthen
9
the provisions of the I-IAA and provide the court with clear standards for interpreting the Act in favor
10
of building housing." (Petitioners'upplemental RJN, Exh I, p. 3.) Such statements "by the sponsor
11
of legislation may be instructive... as are legislative committee reports." (Quarterman v. Eefauver
12
(1997) 55 Cal.App.4th 1366, 1373, citing California Court Reporters Assn. v. Judicial Council of
13
California (1995) 39 Cal.App.4th 15, 30 — 31, and California Teachers Assn, v.Governing IJd. of
14
Rialto Unified School Dist., (1997) 14 Cal.4th 627, 646-647.)
15
The problem identified by the author of the bill was that "NIMBY forces" often mobilize anti-
16
housing sentiment, so that "local governments then refuse to extend [the] HAA*s protections to
17
projects that could reasonably be found to be consistent with the local planning rules."
18 (Petitioners'upplemental
RJN, Exh I, p. 3.) For example, expert agency staff may find that a project is code-
19
compliant, only for the project to be denied at the eleventh hour by a politically-motivated body. AB
20
1515 aimed to fix the issue by drastically changing the standard of review for HAA cases. An
21
Assembly Committee Report for AB 1515 noted that in land use cases, "a local government's
22
decision will be upheld unless no reasonable person could have made the same decision." (Jd., p. 4.)
23
The Report went on to note thai AB 1515:
24
... would require courts to give less deference to a local government's
25 consistency determination. It would chanae the standard of review bv
providina that a nroiect is consistent if there is substantial evidence that
26
would allow a reasonable nerson to find it consistent. As zoning and
27 planning consistency is a threshold requirement for the HAA, this bill would
potentially expand the number of housing developments that are afforded the
28 protections of the HAA.
PETITIONERS'UPPI.EMFNTAL BRIEF
(Petitioners'upplemental RJN, Exh I, p. 4, emphasis added.)
The American Planning Association ("APA") opposed AB 1515, arguing that it would take

away the ability of local agencies "to decide that a project is inconsistent with its own plans based on
substantial evidence." (Jri.) The APA requested that the "substantial evidence" test instead be

construed in agencies'avor, so that a denial would be upheld if supported by substantial evidence.

(Id.) The fact that the Legislature passed AB 1515 over these objections evinces that it intended AB

1515 to have the effect feared by the APA.'ndeed, a leading municipal law treatise confirms that

the HAA "modifj'ies] the standard of review for local decisions denying housing projects...."
(League of California Cities, The California Municipal Law Handbook (2018), at tj10.176.)

The legislative history for other bills amending the HAA confirms that the legislature
10
intended to reduce the deference afforded to local agencies and narrow the grounds upon which a
U 11

o housing development project can be denied. For example, SB 167 introduced the requirement that
z 12
0 WK
i" 0
local agencies provide notice of any areas of code-noncompliance within thirty or sixty days of a
13
2, t
Z
project application being deemed complete. (Ch. 368, Stats. 2017, enacting Gov. Code
14
65589.5(j)(2).) The Senate Floor Report for SB 167 noted that "State courts are often too deferential
15
fl'
to localities in accepting any justification to deny a good housing project that otherwise meets all
0 Aa 16
a za C development requirements." (Petitioners'upplemental RJN, Exh 3.)
&n

V 17
There is no ambiguity as to the I.egislature's intent when it enacted FJ65589.5(f)(4), adding
18
the "deemed compliant" language to the HAA. The Legislature intended to address the problem of
19
NIMBY groups mobilizing opposition to proposed housing in order to pressure local agencies to
20
deny it.This is what happened in this case. There is ample evidence, including evidence from the
21
City's own staff and expert consultants, that would allow a reasonable person to conclude the Project
22
is code-compliant. Yet the Planning Commission and City Council caved to public opposition to the
23

26 'he legislative materials for a subsequent HAA amendment confirm that ( 65589.5(f)(4) changed the
standard of review. In the 2018 legislative session, Stats.2018, c. 243 (AB 3194) was enacted to further
27 strengthen the HAA. The author of AB 3194 noted that "AB 1515... changed the standard the court must
use in reviewing the denial of a housing development." (Petitioners'upplemental RJN, Fxh 2, p. 2.)
28
PETITIONERS'IJPPLEMENTAL BRIEF
I Project and clutched at a flimsy pretext to deny it. It is this very situation that the Legislature sought

2 to prevent in enacting $ 65589

Case Info

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Miram, George A. Track Judge’s New Case

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Document Filed Date

September 19, 2019

Case Filing Date

April 26, 2018

County

Parties

CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND Petitioner
CITY OF SAN MATEO Respondent
CITY OF SAN MATEO PLANNING COMMISSION Respondent
FIERCE, VICTORIA Petitioner
GUNDOGDU, AYNUR V. Real Party In Interest
GUNDOGDU, TONY MEHMET Real Party In Interest
KAUTZ, BARBARA E. Attorneys for Defendants
MOON, JOHN Petitioner
PATTERSON, RYAN J. Attorneys for Plaintiffs
SAN FRANCISCO BAY AREA RENTERS FEDERATION Petitioner
SAN MATEO CITY COUNCIL Respondent
Sarah Hoffman Attorneys for Plaintiffs
Vanneeruk Tungpagasit Attorneys for Plaintiffs
David Finkelstein Attorneys for Plaintiffs
Dolores Dalton Attorneys for Defendants
Justin Bigelow Attorneys for Defendants
Emily Brough Attorneys for Plaintiffs
James Kraus Attorneys for Plaintiffs
George Miram Attorney

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Motion-Secondary: SAN FRANCISCO BAY AREA RENTERS FEDERATION, et al vs. CITY OF SAN MATEO, et al

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