Preview
11/14/2019
I BARBARA E. KAUTZ, sate Bar# 231050
bkautz@goldfarblipman.com
2 DOLORES BASTIAN DALTON, stateBar#94931
ddalton@goldfarblipman.com
3 JUSTIN D. BIGELOW, State Bar # 306761
jbigelow@goldfarblipman.com
4 GOLDFARB & LIPMAN LLP
1300 Clay Street, Eleventh Floor
5 Oakland, California 94612
Telephone: (510) 836-6336
6 Facsimile: (510) 836-1035
[Exempt from Filing Fee (Gov. Code§ 6103)]
7
SHAWN MASON, State Bar#
115996
8 City of San Mateo
City Attorney's Office
9 330 West 20th Avenue
1o San Mateo, CA 94403
11 Attorneys for Respondents
CITY OF SAN MATEO, SAN MATEO CITY
12 COUNCIL, and CITY OF SAN MATEO
PLANNING COMMISSION
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF SAN MATEO, UNLIMITED JURISDICTION
15
16 SAN FRANCISCO BAY AREA RENTERS Case No.: 18-CIV-02105
FEDERATION, CALIFORNIA RENTERS LEGAL
17 ADVOCACY AND EDUCATION FUND,
VICTORIA FIERCE AND JOHN MOON,
18
Goldfarb & Petitioner, NOTICE OF ENTRY OF ORDER
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Lipman LLP vs.
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1300 Clay Street CITY OF SAN MATEO, SAN MATEO CITY Action Filed: April 26, 2017
21 COUNCIL, AND CITY OF SAN MATEO
Eleventh Floor PLANNING COMMISSION,
22
Oakland Respondents.
23
California
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TONY MEHMET GUNDOGDU and A YNUR V.
94612
25 GUNDOGDU,
510 8366336
26 Real Parties in Interest.
$10 836-1035FAX 97
28
1
NOTICE OF ENTRY OF ORDER
660\07\2709197. l
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that an Order Denying Petition for Writ of Administrative
3 Mandate was filed in this action on November 7, 2019. A copy of the Order is attached as
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Exhibit A.
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6 DATED: November 13, 2019 GOLDFARB & LIPMAN LLP
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By:
De /B a _
9 DOLORES BASTIAN DALTON
Attorneys for Respondents
10 CITY OF SAN MATEO, SAN MATEO CITY
COUNCIL, AND CITY OF SAN MATEO
11
PLANNING COMMISSION
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Goldfarb &
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lipman (LP
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I 3 00 Clay Street
Eleventh Floor
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Oakland
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California
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94612
510 836-6336
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510 836-1035 FAX
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2
NOTICE OF ENTRY OF ORDER
660\07\2709197. I
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EXHIBIT A
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Goldfarb &
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ipman LLP
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I 3 00 Clay Street
Eleventh Floor
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Oakland
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California
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94612
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510 836-6336
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510 836-1035 FAX
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NOTICE OF ENTRY OF ORDER
660\07\2709197. I
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FILED
SAN MATEO COUNTY
aka
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""":\
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN MATEO
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10 Case No.: 18-CIV-02105
San Francisco Bay Area Renters
11
Federation, California Renters Legal Order Denying Petition for Writ of
Administrative Mandate
12
Advocacy and Education Fund, Victoria
13
Fierce and John Moon
14
Petitioners
Date: October 24, 2019
15
V. Time: 2:00 P.M.
Dept: 28
16 City of San Mateo and City of San Hon. George A. Miram
17
Mateo Planning Commission
18 Respondents
19
20
The Petition for Writ of Administrative Mandate brought by San Francisc
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Bay Area Renters Federation, California Renters Legal Advocacy and Educatio
22
Fund, Victoria Fierce and John Moon came on regularly for hearing at 2:00 P.M.
23
on October 24, 2019 in Department 28 of the San Mateo Superior Court, the Hon.
24
George A. Miram presiding.
25
Ryan J. Patterson, Esq. and James B. Kraus, Esq. of Zacks, Freedman
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Patterson, PC appeared on behalf of Petitioners. Barbara E. Kautz, Esq. an
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Dolores Bastian Dalton, Esq. appeared on behalf of the City of San Mateo Cit
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Council and the City of San Mateo Planning Commission.
-1-
1
After receiving the papers filed by the parties, hearing the oral arguments o
2
counsel, and after the court granted all requests for judicial notice, the matter wa
3
submitted.
4 The City of San Mateo bases its opposition to the Petition for Writ o
5
Mandate on two grounds: (1) a finding that the project violated the City's Multi
6
Family Design Guidelines requiring upper floors of a project that exceeds th
7
height of neighboring structures be stepped back to avoid changes in buildin
8
height greater than one story, a finding that was expressly included in the City's
9
denial resolution; and (2) the failure of the project to comply with City's parkin
10
standards, a grounds for denial that was not addressed in the denial resolution.
11
Since the denial resolution did not include any findings concerning the allege
12 failure to comply with parking standards, the matter must be remanded to the Cit
13 so that such findings can be made unless this court finds that the findings that th
14 project violated the City's Multi-Family Design Guidelines comply with th
15 enforceable provisions of the Housing Accountability Act, Government Code §
16 65589.5 et seq. (hereafter "HAA"), and is, by itself, an appropriate grounds fo
17 Denial of the project by the San Mateo Planning Commission, Denial of th
18 Appeal of such denial by the City of San Mateo City Council, and Denial of thi
19 Petition for Writ of Administrative Mandate by this court.
20 Thus, the issue before this court is whether the finding that the projec
21 violated the City's Multi-Family Design Guidelines requiring upper floors of
22 project that exceeds the height of neighboring structures be stepped back to avoi
23 changes in building height greater than one story satisfies the HAA, and if not,
24 whether any provisions of the HAA that are not satisfied are enforceable.
25 Petitioner contends that "the City bears the burden of proving
26 Project failed to comply with "applicable, objective general plan and zonin
27 standards and criteria, including design review standards, in effect at the time tha
28 the housing development project's application was determined to be complete."
-2-
1
(Petitioner's Opening Brief at 6: 11-14 [ quoting Honchariw v. County of Stanis lau
° (2011) 200 Cal.App.4 1066, 1081.].) Petitioner contends that the Multi-Famil
3
Design Guidelines (hereafter "MFDGs") are not applicable objective general plan,
4
zoning or subdivision standards or criteria, and therefore denial of a project due t
5
any failure of the project to satisfy the guidelines violates the HAA. (Petitioner'
6
Opening Brief at 10: 18-11: 14.) Respondent contends that "The City Counci
7
interpreted the standard to mean that all floors of a proposed building tha
8
exceeded the height of a neighboring structure needed to be stepped back" an
9
"Because the project did not comply, the Council denied the project.'
10 (Respondent's Supplemental Brief at 13:2-4 [citing Administrative Record at 28
11
31].) Respondent contends that the interpretation of MFDGs standard is an issu
12 of pure law and that the city's interpretation of its own ordinance is entitled t
13 great weight. (Respondent's Supplemental Brief at 13:5-8 [quoting Harrington v.
14 City of Davis (2017) 16 Cal.App.5 420, 434 and citing Ocean Park Associates v.
15 Santa Monica Rent Control Bd. (2004) 114 Cal.App.4 1050, 1062; Yamaha Corp.
16 y. State Bd. Of Equilzation (1998) 19 Cal.4 1].) Respondent contends that suc
17 threshold legal issues should be decided by this court under the independen
18,judgment standard. (Respondent's Supplemental Brief at 11:9-10.)
19 Exercising its independent judgment, and giving difference to the city's
20 interpretation of its own Multi-Family Design Guidelines, this court finds that th
21 Multi-Family Design Guidelines qualify as "applicable, objective general plan an
22 zoning standards and criteria, including design review standards, in effect at th
23 time that the housing development project's application was determined to b
24 complete." (Honchariw v. County of Sanislaus (2011) 200 Cal.App.4 1066,
25 1081.) This court finds this issue to be an issue of pure law and that th
26 reasonable interpretation/substantial evidence standard provided in Govemmen
27 Code § 65589.5(f)(4) does not apply to this court's determination of this specifi
28 legal issue.
-3-
1
Accordingly, the Petition for Writ of Mandate is DENIED because the cit
2
did not violate the HAA when it denied approval of the project because the projec
3
failed to satisfy the Multi-Family Design Guidelines, as interpreted by the city an
4
confirmed by this court in the exercise of its independent judgment.
5
Petitioners contend that the HAA effectively precludes the use o
6
discretionary guidelines to deny residential housing development project permits,
7
because such guidelines are not objective standards. (Petitioners Supplementa
8
Brief at page 2:24-26 [citing Government Code $ 65589.5(j1); Honchariw v.
° County of Sanislaus (2011) 200 Cal.App.4 1066, 1076 [HAA takes "away a
10
agencies ability to use what might be called a 'subjective' development 'policy'
11
(for example 'suitability' to exempt a proposed housing project from the reach o
12
subdivision (j)"].]) Petitioners note that in January 2000, subdivision (j) wa
13
changed from"[ w]hen a proposed housing development project complies with th
14
applicable general plan, zoning and development polices in effect" to includ
15 "objective ... standards and criteria." (Petitioners Supplemental brief at 11: 16-22.)
16 Petitioners contend that the MFDGs are not applicable objective general
17 plan, zoning or subdivision standards. First, Petitioners contend that a desig
18 review standard can only be used to deny a project if it is included in an applicabl
19 General Plan, zoning code or subdivision code and the MFDGs are no
20 incorporated into San Mateo's General Plan or Codes, but were adopted as separat
21 guidelines. (Petitioners Opening Brief at page 10:23-11 :03 .) Second, Petitioner
22 contend that the MFDGs are discretionary, and as discussed above, argue tha
23 discretionary guidelines may not be used to deny a project to which the HA
24 applies. (Id. at 11 :04-07.) Petitioners note that the City's Urban Design Polic
25 simply recommends that projects "substantially conform" to the MFDGS; they ar
26 not a mandatory checklist. (Id. at 11 :09-14 [citing U.D. 2.1].)
27 Respondents contend that such a sweeping negation of local agenc
28 discretion interferes with core municipal decision-making ability and violates th
4
1
home rule doctrine contained in Article XI. § 5(a) of the California Constitution.
2
(Respondent's Supplemental Brief at page 14:25-27.) While Honchariw v. Coun
° of Sanislaus (2011) 200 Cal.App.4 1066, 1076 held that the HAA takes "away a
4
agency's ability to use what might be called a 'subjective' development 'policy,'
5
that court did not address the argument raised here that the HAA is a legislativ
6
attempt to interfere with core municipal decision-making ability that violates th
7
California Constitution.
8
While this court expressly ordered the parties to brief the enforceability o
9
the HAA and specifically Government Code $ 65589.5(f)(4), Petitioners provide
10
no such briefing and provided no argument or citation to authority during ora
11
argument. Thus, the contentions concerning the enforceability of the HAA i
12 general and Government Code § 65589.5(£)(4) in particular proffered b
13 Respondent City of San Mateo are uncontroverted.
14 This court finds that the City of San Mateo is a charter city whose charte
15 fully incorporates the home rule doctrine and that the approval of the instan
16 residential housing project is an appropriate exercise of municipal affairs.
17 Furthermore, this court finds that to the HAA is unenforceable to the extent th
18 HAA conflicts with or purports to disregard otherwise enforceable portions of th
19 city's Municipal Code regarding review of housing development projects. (Se
20 State Building & Construction Trades Council of California v. City of Vista (2012
21 54 Cal.4 547, 555 [charter cities are specifically authorized by our stat
22 Constitution to govern themselves, free of state legislative intrusion, as to thos
23 matters deemed municipal affairs"].)
24 This court finds that planning and zoning activities of local government are
25 classic municipal affair. "Land use regulation in California has historically been
26 function of local government under the grant of police power contained i
27 California Constitution article XI, section 7." De Vita v. County of Napa (1995) 9
28 Cal.4 763, 782 [quoting Bownds v. City of Glendale (1980) 113 Cal.App.3d 875,
-5-
879].) "We have recognized that a city's or county's power to control its own lan
2
use decisions derives from this inherent police power, not from the delegation o
3
authority by the state." (Id. [Candid Enterprises, Inc. v. Grossmont Union Hig
4
Dist. (1985) 39 Cal.3d 878, 885-886].)
5
Although the HAA states in Government Code § 65589.5(g) that it applies t
6
charter cities, the Legislature's view of whether its enactment should apply t
7
charter cities does not control. State Building & Construction Trades Council o
® California v. City of Vista (2012) 54 Cal.4 547, 565 [citing Bishop v. City of Sa
9
Jose (1969) 1 Cal.3d 56, 63 ["The legislature is empowered neither to determin
10
what constitutes a municipal affair nor to change such an affair into a matter o
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statewide concern"].)
12 Petitioner contends that "In an HAA case, the Petitioners are afforded th
13 benefit of the doubt, and the Court cannot independently weigh the evidence o
14 engage in a balancing exercise. Rather any conflicts must be resolved in favor o
15 the Petitioners and if there is any substantial evidence in the record that woul
16 enable a reasonable person to conclude the Project is code compliant, it must b
17 deemed compliant and approved. Substantial evidence can and must include th
18 findings of the City's expert consultants, the reports prepared by City staff, and th
19 evidence submitted by the project applicant." (Petitioner's Reply Brief at 4:12-17.
20 Petitioner contends: "it is absurd for the City to suggest that the City Council is th
21 final arbiter of code compliance and that nothing that occurred before the City'
22 final decision can be cited in an HAA action." (Id. at 4:20-24.)
23 Assuming without finding that the above quoted language correctl
24 interprets the plain language of the HAA, this court finds that, in addition t
25 violating the home rule doctrine discussed above, such interpretation would effec
26 an unlawful delegation of municipal functions to private parties in violation o
27 California Constitution Article XI, § 11 (a) ["Legislature may not delegate to
28 private person or body power ... to perform municipal functions"] and, therefore
- 6-
1
that the interpretation of the HAA proffered by Petitioner would be unenforceable.
2
Here, Petitioners argue that the opinions of the City's design consultant and Cit
3
Staff-prepared and submitted prior to any public hearing by persons no
4
designated by the Municipal to make decisions-constitute "substantial evidence"
5
and compels approval of the project regardless of the views of the City Council t
6
the contrary. Petitioners suggest that the comments by one Councilmember ma
7
compel the entire Council to approve the project thereby nullifying the idea o
8
majority decision making. (See Petitioner's Opening Brief at page 8: 19-24.) Thi
9
court finds that such limitations on the ability of a Charter City Council to approv
10 or deny an action by majority vote constitutes an unlawful delegation of authorit
11
and is, therefore, unenforceable.
12 As noted above, California court have "recognized that a city's or county's
13 power to control its own land use decisions derives from this inherent polic
14 power, not from the delegation of authority by the state." (Id. [Candid Enterprises,
15 Inc. v. Grossmont Union High Dist. (1985) 39 Cal.3d 878, 885-886].) Thus, whil
16 authority delegated by statute can be revoked by statute, limitations on the inheren
17 police power of a city narrowly tailored to avoid unnecessary interference i
18 municipal governance. (Johnson v. Bradley (1992) 4 Cal.4 389, 476-477;
19 Lippman v, City of Oakland (2017) 19 Cal.App.5" 750, 765; Jauregui v. City o
20 Palmdale (2014) 226 Cal.App.4 781, 802.)
21 Respondent contends that even assuming arguendo that Government Code §
22 65589.5(£)(4) addresses a matter of statewide concern, nothing about the HAA i
23 "narrowly tailored" to avoid unnecessary interference in municipal governance.
24 The HAA is not limited to cities and counties that have a history of denyin
25 housing developments. The HAA does not apply to larger projects that may have
26 significant effect on housing availability but instead applies to any housin
27 development projected containing two units or more and even applies to project
28 having a substantial commercial component. (Respondent's Supplemental Brief a
.7.
10
1
19: 1-6 [ citing Government Code § 65589.5(h)(2).].) Respondents contend that th
2
HAA effectively replaces all findings related to housing development approval
3
with one related to consistency with objective standards. (Id.) As noted above, thi
4
court expressly ordered the parties to brief the enforceability of the HAA an
5
specifically Government Code $ 65589.5(f9(4), Petitioners provided no sue
6
briefing and provided no argument or citation to authority concerning this issu
7
during oral argument. Thus, the concerning the failure of Government Code §
8
65589.5(£)(4) to qualify as a narrowly tailored to avoid unnecessary interference i
9
municipal governance proffered by Respondent City of San Mateo ar
10
uncontroverted.
11
This court finds that the HAA in general and Government Code §
12 65589.5(£)( 4) in particular constitute a significant and unnecessary interference i
13 municipal governance and that cannot possibly be construed as "narrowly tailored"
14 and, therefore, is unenforceable. For example, a narrowly tailored version of th
15 HAA would limit the statute's application to cases in which the administrativ
16 record contained objective evidence of bad faith by the municipal authority. Here,
17 there is no evidence that the City of San Mateo has ever acted in bad faith and th
18 fact that city employees and city council members recognized the positive aspect
19 of a project, as well as its defects, does not mean that their ultimate decision t
20 deny the application was made in bad faith.
21 Project criteria contained in city ordinances enacted when the exercise o
22 discretion was permitted must necessarily be reevaluated and modified if sweepin
23 changes to the law that prohibit all discretion are enacted and become enforceable.
24 It is not bad faith for a city to attempt to retain the standards it has applied in th
25 past if there is no evidence of prior bad faith. Accordingly, the Petition for Writ o
26 Mandate is DENIED.
27 Dated:
28
NOV 0 7 2019
Preview
11/14/2019 I BARBARA E. KAUTZ, sate Bar# 231050 bkautz@goldfarblipman.com 2 DOLORES BASTIAN DALTON, stateBar#94931 ddalton@goldfarblipman.com 3 JUSTIN D. BIGELOW, State Bar # 306761 jbigelow@goldfarblipman.com 4 GOLDFARB & LIPMAN LLP 1300 Clay Street, Eleventh Floor 5 Oakland, California 94612 Telephone: (510) 836-6336 6 Facsimile: (510) 836-1035 [Exempt from Filing Fee (Gov. Code§ 6103)] 7 SHAWN MASON, State Bar# 115996 8 City of San Mateo City Attorney's Office 9 330 West 20th Avenue 1o San Mateo, CA 94403 11 Attorneys for Respondents CITY OF SAN MATEO, SAN MATEO CITY 12 COUNCIL, and CITY OF SAN MATEO PLANNING COMMISSION 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SAN MATEO, UNLIMITED JURISDICTION 15 16 SAN FRANCISCO BAY AREA RENTERS Case No.: 18-CIV-02105 FEDERATION, CALIFORNIA RENTERS LEGAL 17 ADVOCACY AND EDUCATION FUND, VICTORIA FIERCE AND JOHN MOON, 18 Goldfarb & Petitioner, NOTICE OF ENTRY OF ORDER 19 Lipman LLP vs. 20 1300 Clay Street CITY OF SAN MATEO, SAN MATEO CITY Action Filed: April 26, 2017 21 COUNCIL, AND CITY OF SAN MATEO Eleventh Floor PLANNING COMMISSION, 22 Oakland Respondents. 23 California 24 TONY MEHMET GUNDOGDU and A YNUR V. 94612 25 GUNDOGDU, 510 8366336 26 Real Parties in Interest. $10 836-1035FAX 97 28 1 NOTICE OF ENTRY OF ORDER 660\07\2709197. l 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that an Order Denying Petition for Writ of Administrative 3 Mandate was filed in this action on November 7, 2019. A copy of the Order is attached as 4 Exhibit A. 5 6 DATED: November 13, 2019 GOLDFARB & LIPMAN LLP 7 8 By: De /B a _ 9 DOLORES BASTIAN DALTON Attorneys for Respondents 10 CITY OF SAN MATEO, SAN MATEO CITY COUNCIL, AND CITY OF SAN MATEO 11 PLANNING COMMISSION 12 13 14 15 16 17 18 19 Goldfarb & 20 lipman (LP 21 I 3 00 Clay Street Eleventh Floor 22 23 Oakland 24 California 25 94612 510 836-6336 26 510 836-1035 FAX 27 28 2 NOTICE OF ENTRY OF ORDER 660\07\2709197. I 1 2 3 4 5 6 7 8 9 10 11 EXHIBIT A 12 13 14 15 16 17 18 Goldfarb & 19 ipman LLP 20 21 I 3 00 Clay Street Eleventh Floor 22 Oakland 23 California 24 94612 25 510 836-6336 26 510 836-1035 FAX 27 28 3 NOTICE OF ENTRY OF ORDER 660\07\2709197. I 2 1 FILED SAN MATEO COUNTY aka 3 4 5 6 """:\ 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SAN MATEO 9 10 Case No.: 18-CIV-02105 San Francisco Bay Area Renters 11 Federation, California Renters Legal Order Denying Petition for Writ of Administrative Mandate 12 Advocacy and Education Fund, Victoria 13 Fierce and John Moon 14 Petitioners Date: October 24, 2019 15 V. Time: 2:00 P.M. Dept: 28 16 City of San Mateo and City of San Hon. George A. Miram 17 Mateo Planning Commission 18 Respondents 19 20 The Petition for Writ of Administrative Mandate brought by San Francisc 21 Bay Area Renters Federation, California Renters Legal Advocacy and Educatio 22 Fund, Victoria Fierce and John Moon came on regularly for hearing at 2:00 P.M. 23 on October 24, 2019 in Department 28 of the San Mateo Superior Court, the Hon. 24 George A. Miram presiding. 25 Ryan J. Patterson, Esq. and James B. Kraus, Esq. of Zacks, Freedman 26 Patterson, PC appeared on behalf of Petitioners. Barbara E. Kautz, Esq. an 27 Dolores Bastian Dalton, Esq. appeared on behalf of the City of San Mateo Cit 28 Council and the City of San Mateo Planning Commission. -1- 1 After receiving the papers filed by the parties, hearing the oral arguments o 2 counsel, and after the court granted all requests for judicial notice, the matter wa 3 submitted. 4 The City of San Mateo bases its opposition to the Petition for Writ o 5 Mandate on two grounds: (1) a finding that the project violated the City's Multi 6 Family Design Guidelines requiring upper floors of a project that exceeds th 7 height of neighboring structures be stepped back to avoid changes in buildin 8 height greater than one story, a finding that was expressly included in the City's 9 denial resolution; and (2) the failure of the project to comply with City's parkin 10 standards, a grounds for denial that was not addressed in the denial resolution. 11 Since the denial resolution did not include any findings concerning the allege 12 failure to comply with parking standards, the matter must be remanded to the Cit 13 so that such findings can be made unless this court finds that the findings that th 14 project violated the City's Multi-Family Design Guidelines comply with th 15 enforceable provisions of the Housing Accountability Act, Government Code § 16 65589.5 et seq. (hereafter "HAA"), and is, by itself, an appropriate grounds fo 17 Denial of the project by the San Mateo Planning Commission, Denial of th 18 Appeal of such denial by the City of San Mateo City Council, and Denial of thi 19 Petition for Writ of Administrative Mandate by this court. 20 Thus, the issue before this court is whether the finding that the projec 21 violated the City's Multi-Family Design Guidelines requiring upper floors of 22 project that exceeds the height of neighboring structures be stepped back to avoi 23 changes in building height greater than one story satisfies the HAA, and if not, 24 whether any provisions of the HAA that are not satisfied are enforceable. 25 Petitioner contends that "the City bears the burden of proving 26 Project failed to comply with "applicable, objective general plan and zonin 27 standards and criteria, including design review standards, in effect at the time tha 28 the housing development project's application was determined to be complete." -2- 1 (Petitioner's Opening Brief at 6: 11-14 [ quoting Honchariw v. County of Stanis lau ° (2011) 200 Cal.App.4 1066, 1081.].) Petitioner contends that the Multi-Famil 3 Design Guidelines (hereafter "MFDGs") are not applicable objective general plan, 4 zoning or subdivision standards or criteria, and therefore denial of a project due t 5 any failure of the project to satisfy the guidelines violates the HAA. (Petitioner' 6 Opening Brief at 10: 18-11: 14.) Respondent contends that "The City Counci 7 interpreted the standard to mean that all floors of a proposed building tha 8 exceeded the height of a neighboring structure needed to be stepped back" an 9 "Because the project did not comply, the Council denied the project.' 10 (Respondent's Supplemental Brief at 13:2-4 [citing Administrative Record at 28 11 31].) Respondent contends that the interpretation of MFDGs standard is an issu 12 of pure law and that the city's interpretation of its own ordinance is entitled t 13 great weight. (Respondent's Supplemental Brief at 13:5-8 [quoting Harrington v. 14 City of Davis (2017) 16 Cal.App.5 420, 434 and citing Ocean Park Associates v. 15 Santa Monica Rent Control Bd. (2004) 114 Cal.App.4 1050, 1062; Yamaha Corp. 16 y. State Bd. Of Equilzation (1998) 19 Cal.4 1].) Respondent contends that suc 17 threshold legal issues should be decided by this court under the independen 18,judgment standard. (Respondent's Supplemental Brief at 11:9-10.) 19 Exercising its independent judgment, and giving difference to the city's 20 interpretation of its own Multi-Family Design Guidelines, this court finds that th 21 Multi-Family Design Guidelines qualify as "applicable, objective general plan an 22 zoning standards and criteria, including design review standards, in effect at th 23 time that the housing development project's application was determined to b 24 complete." (Honchariw v. County of Sanislaus (2011) 200 Cal.App.4 1066, 25 1081.) This court finds this issue to be an issue of pure law and that th 26 reasonable interpretation/substantial evidence standard provided in Govemmen 27 Code § 65589.5(f)(4) does not apply to this court's determination of this specifi 28 legal issue. -3- 1 Accordingly, the Petition for Writ of Mandate is DENIED because the cit 2 did not violate the HAA when it denied approval of the project because the projec 3 failed to satisfy the Multi-Family Design Guidelines, as interpreted by the city an 4 confirmed by this court in the exercise of its independent judgment. 5 Petitioners contend that the HAA effectively precludes the use o 6 discretionary guidelines to deny residential housing development project permits, 7 because such guidelines are not objective standards. (Petitioners Supplementa 8 Brief at page 2:24-26 [citing Government Code $ 65589.5(j1); Honchariw v. ° County of Sanislaus (2011) 200 Cal.App.4 1066, 1076 [HAA takes "away a 10 agencies ability to use what might be called a 'subjective' development 'policy' 11 (for example 'suitability' to exempt a proposed housing project from the reach o 12 subdivision (j)"].]) Petitioners note that in January 2000, subdivision (j) wa 13 changed from"[ w]hen a proposed housing development project complies with th 14 applicable general plan, zoning and development polices in effect" to includ 15 "objective ... standards and criteria." (Petitioners Supplemental brief at 11: 16-22.) 16 Petitioners contend that the MFDGs are not applicable objective general 17 plan, zoning or subdivision standards. First, Petitioners contend that a desig 18 review standard can only be used to deny a project if it is included in an applicabl 19 General Plan, zoning code or subdivision code and the MFDGs are no 20 incorporated into San Mateo's General Plan or Codes, but were adopted as separat 21 guidelines. (Petitioners Opening Brief at page 10:23-11 :03 .) Second, Petitioner 22 contend that the MFDGs are discretionary, and as discussed above, argue tha 23 discretionary guidelines may not be used to deny a project to which the HA 24 applies. (Id. at 11 :04-07.) Petitioners note that the City's Urban Design Polic 25 simply recommends that projects "substantially conform" to the MFDGS; they ar 26 not a mandatory checklist. (Id. at 11 :09-14 [citing U.D. 2.1].) 27 Respondents contend that such a sweeping negation of local agenc 28 discretion interferes with core municipal decision-making ability and violates th 4 1 home rule doctrine contained in Article XI. § 5(a) of the California Constitution. 2 (Respondent's Supplemental Brief at page 14:25-27.) While Honchariw v. Coun ° of Sanislaus (2011) 200 Cal.App.4 1066, 1076 held that the HAA takes "away a 4 agency's ability to use what might be called a 'subjective' development 'policy,' 5 that court did not address the argument raised here that the HAA is a legislativ 6 attempt to interfere with core municipal decision-making ability that violates th 7 California Constitution. 8 While this court expressly ordered the parties to brief the enforceability o 9 the HAA and specifically Government Code $ 65589.5(f)(4), Petitioners provide 10 no such briefing and provided no argument or citation to authority during ora 11 argument. Thus, the contentions concerning the enforceability of the HAA i 12 general and Government Code § 65589.5(£)(4) in particular proffered b 13 Respondent City of San Mateo are uncontroverted. 14 This court finds that the City of San Mateo is a charter city whose charte 15 fully incorporates the home rule doctrine and that the approval of the instan 16 residential housing project is an appropriate exercise of municipal affairs. 17 Furthermore, this court finds that to the HAA is unenforceable to the extent th 18 HAA conflicts with or purports to disregard otherwise enforceable portions of th 19 city's Municipal Code regarding review of housing development projects. (Se 20 State Building & Construction Trades Council of California v. City of Vista (2012 21 54 Cal.4 547, 555 [charter cities are specifically authorized by our stat 22 Constitution to govern themselves, free of state legislative intrusion, as to thos 23 matters deemed municipal affairs"].) 24 This court finds that planning and zoning activities of local government are 25 classic municipal affair. "Land use regulation in California has historically been 26 function of local government under the grant of police power contained i 27 California Constitution article XI, section 7." De Vita v. County of Napa (1995) 9 28 Cal.4 763, 782 [quoting Bownds v. City of Glendale (1980) 113 Cal.App.3d 875, -5- 879].) "We have recognized that a city's or county's power to control its own lan 2 use decisions derives from this inherent police power, not from the delegation o 3 authority by the state." (Id. [Candid Enterprises, Inc. v. Grossmont Union Hig 4 Dist. (1985) 39 Cal.3d 878, 885-886].) 5 Although the HAA states in Government Code § 65589.5(g) that it applies t 6 charter cities, the Legislature's view of whether its enactment should apply t 7 charter cities does not control. State Building & Construction Trades Council o ® California v. City of Vista (2012) 54 Cal.4 547, 565 [citing Bishop v. City of Sa 9 Jose (1969) 1 Cal.3d 56, 63 ["The legislature is empowered neither to determin 10 what constitutes a municipal affair nor to change such an affair into a matter o 11 statewide concern"].) 12 Petitioner contends that "In an HAA case, the Petitioners are afforded th 13 benefit of the doubt, and the Court cannot independently weigh the evidence o 14 engage in a balancing exercise. Rather any conflicts must be resolved in favor o 15 the Petitioners and if there is any substantial evidence in the record that woul 16 enable a reasonable person to conclude the Project is code compliant, it must b 17 deemed compliant and approved. Substantial evidence can and must include th 18 findings of the City's expert consultants, the reports prepared by City staff, and th 19 evidence submitted by the project applicant." (Petitioner's Reply Brief at 4:12-17. 20 Petitioner contends: "it is absurd for the City to suggest that the City Council is th 21 final arbiter of code compliance and that nothing that occurred before the City' 22 final decision can be cited in an HAA action." (Id. at 4:20-24.) 23 Assuming without finding that the above quoted language correctl 24 interprets the plain language of the HAA, this court finds that, in addition t 25 violating the home rule doctrine discussed above, such interpretation would effec 26 an unlawful delegation of municipal functions to private parties in violation o 27 California Constitution Article XI, § 11 (a) ["Legislature may not delegate to 28 private person or body power ... to perform municipal functions"] and, therefore - 6- 1 that the interpretation of the HAA proffered by Petitioner would be unenforceable. 2 Here, Petitioners argue that the opinions of the City's design consultant and Cit 3 Staff-prepared and submitted prior to any public hearing by persons no 4 designated by the Municipal to make decisions-constitute "substantial evidence" 5 and compels approval of the project regardless of the views of the City Council t 6 the contrary. Petitioners suggest that the comments by one Councilmember ma 7 compel the entire Council to approve the project thereby nullifying the idea o 8 majority decision making. (See Petitioner's Opening Brief at page 8: 19-24.) Thi 9 court finds that such limitations on the ability of a Charter City Council to approv 10 or deny an action by majority vote constitutes an unlawful delegation of authorit 11 and is, therefore, unenforceable. 12 As noted above, California court have "recognized that a city's or county's 13 power to control its own land use decisions derives from this inherent polic 14 power, not from the delegation of authority by the state." (Id. [Candid Enterprises, 15 Inc. v. Grossmont Union High Dist. (1985) 39 Cal.3d 878, 885-886].) Thus, whil 16 authority delegated by statute can be revoked by statute, limitations on the inheren 17 police power of a city narrowly tailored to avoid unnecessary interference i 18 municipal governance. (Johnson v. Bradley (1992) 4 Cal.4 389, 476-477; 19 Lippman v, City of Oakland (2017) 19 Cal.App.5" 750, 765; Jauregui v. City o 20 Palmdale (2014) 226 Cal.App.4 781, 802.) 21 Respondent contends that even assuming arguendo that Government Code § 22 65589.5(£)(4) addresses a matter of statewide concern, nothing about the HAA i 23 "narrowly tailored" to avoid unnecessary interference in municipal governance. 24 The HAA is not limited to cities and counties that have a history of denyin 25 housing developments. The HAA does not apply to larger projects that may have 26 significant effect on housing availability but instead applies to any housin 27 development projected containing two units or more and even applies to project 28 having a substantial commercial component. (Respondent's Supplemental Brief a .7. 10 1 19: 1-6 [ citing Government Code § 65589.5(h)(2).].) Respondents contend that th 2 HAA effectively replaces all findings related to housing development approval 3 with one related to consistency with objective standards. (Id.) As noted above, thi 4 court expressly ordered the parties to brief the enforceability of the HAA an 5 specifically Government Code $ 65589.5(f9(4), Petitioners provided no sue 6 briefing and provided no argument or citation to authority concerning this issu 7 during oral argument. Thus, the concerning the failure of Government Code § 8 65589.5(£)(4) to qualify as a narrowly tailored to avoid unnecessary interference i 9 municipal governance proffered by Respondent City of San Mateo ar 10 uncontroverted. 11 This court finds that the HAA in general and Government Code § 12 65589.5(£)( 4) in particular constitute a significant and unnecessary interference i 13 municipal governance and that cannot possibly be construed as "narrowly tailored" 14 and, therefore, is unenforceable. For example, a narrowly tailored version of th 15 HAA would limit the statute's application to cases in which the administrativ 16 record contained objective evidence of bad faith by the municipal authority. Here, 17 there is no evidence that the City of San Mateo has ever acted in bad faith and th 18 fact that city employees and city council members recognized the positive aspect 19 of a project, as well as its defects, does not mean that their ultimate decision t 20 deny the application was made in bad faith. 21 Project criteria contained in city ordinances enacted when the exercise o 22 discretion was permitted must necessarily be reevaluated and modified if sweepin 23 changes to the law that prohibit all discretion are enacted and become enforceable. 24 It is not bad faith for a city to attempt to retain the standards it has applied in th 25 past if there is no evidence of prior bad faith. Accordingly, the Petition for Writ o 26 Mandate is DENIED. 27 Dated: 28 NOV 0 7 2019