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COURT OF APPEAL, FIRST APPELLATE DISTRICT
350 MCALLISTER STREET
SAN MATEQ GOUWV
E
SAN FRANCISCO, CA 94102
' NOV'l 6 2021
DIVISION 4
Ofce of the County Clerk
San Mateo County Superior Court —
Main (Redwood City)
ByjClerk tthe suparlor calm
oepuwdEHK
Attention: Appeals Section
400 County Center
’Redwood City, CA 94063
CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND, et a1.,
and Appellants,
v.
CITY OF SAN MATEO, et al.,
and Respondents;
TONY MEHMET GUNDOGDU et al.,
Palties in Interest;
ROB BONTA, as Attorney General, etc.,
and Respondent.
A159320, A159658
San Mateo County Super. Ct. No. 18CIV02105
* * REMITTITUR * *
I, Charles D. Johnson, Clerk of the Court of Appeal of the’State of California, for the First Appellate
District, do hereby certify that the attached is a true and correct copy ofthe original opinion or decision entered in
the above—entitled cause on September 10, 2021 and that this opinion has now become nal.
_Appellant _Respondent to recover costs
_Each party to bear own costs
_Costs are not awarded in this proceeding
iSee decision for costs determination
Witness my hand and the Seal of the Court afxed at my ofce this November 10, 2021.
h Very truly your s,
.
I
CharlesD Johnson
_3“”_~v\\ VI:'
Clerk of Court
V L
‘7 Deputy Clerk
P. O. Report:
Marsden T anscript:
Boxed Tr
Exhibits:
None o the above:
I
reml
Court of Appeal. First Appellate District
Charles D. Johnson. Clerk/Executive Ofcer
Electronically FILED on 9/10/2021 by C. Hoo. Deputy Clerk
Filed 09/10/2021
CERTIFIED FOR PUBLICATION
\
i
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CALIFORNIA RENTERS LEGAL
ADVOCACY AND EDUCATION
FUND, et a1.,
Plaintiffs and Appellants, A159320, A159658
V. (San Mateo County
CITY OF SAN MATEO, et a1., Super. Ct. No. 18-CIV-02105)
Defendants and Respondents;
TONY MEHMET GUNDOGDU et a1.,
Real Parties in Interest;
ROB BONTA, as Attorney General,
etc.,
Intervener and Respondent.
“California has a housing supply and affordability crisis of historic
proportions.” (Gov. Code, § 65589.5, subd. (a)(2)(A).)1 This “despite the fact
that, for decades, the Legislature has enacted numerous statutes intended to
significantly increase the approval, development, and affordability of housing
for all income levels.” (§ 65589.5, subd. (a)(2)(J).) Among these statutes is
the Housing Accountability Act (HAA) (Gov. Code, § 65589.5), enacted in
1982 With the goal of “meaningfully and effectively curbing the capability of
1
All undesignated statutory references are to the Government Code.
1
4L
C1
local governments to deny, reduce the density for, or render infeasible
housing development projects.” (§ 65589.5, subd. (a)(2)(K).) In this, the HAA
'
has historically failed. (11nd)
These were the ndings of the Legislature in 2017, when it amended
the HAA to strengthen the statute. (Stats. 2017, ch. 378, § 1.5.) In relevant
part, the HAA restricts the ability of local governments to deny an
application to build housing if the proposed project complies with general
plan, zoning, and design review standards that are “objective.” (§ 65589.5,
subd. (j)(1).) A 2017 amendment adds teeth to this restriction by defining
what it means to comply with such standards: a housing development project
is deemed to comply if “substantial evidence . ...would allow a reasonable
person to conclude” that it does. (§ 65589.5, subd. (6(4) (subdivision (i)(4)).)
This case raises questions about how to apply the HAA as amended and
whether the statute, especially subdivision (6(4), violates the California
Constitution. _
After the City of San Mateo (the City) denied an application to build a
ten-unit apartment building, petitioners California Renters Legal Advocacy
and Education Fund, Victoria Fierce, and John Moon (collectively, CARLA)
sought a writ of administrative mandamus seeking to compel the project’s
approval? The trial court denied the petition, ruling that the project did not
satisfy the City’s design guidelines for multifamily homes and that, to the
extent the HAA required the City to ignore its own guidelines, it was an
unconstitutional infringement on the City’s right to home rule and an
unconstitutional delegation of municipal powers.
2
The petition was also brought on behalf of San Francisco Bay Area
Renters ASSOCiation, which is not a party to this appeal.
2
I
‘4)“
We'conclude otherwise. The design guideline the City invoked as part
of its reason for rejecting this housing development is not “objective.” for
purposes of the HAA, and s0 cannotsupport the City’s decision to reject the
project. And because the HAA checks municipal authority only as necessary
t0 further the statewide interest in new housing development, the HAA- does
not infringe on the City’s right to home rule. Rejecting the City’s other
constitutional arguments as well, we reverse.
I
FACTUAL AND PROCEDURAL BACKGROUND
Tony Gundogdu submitted an application to build a four-story, ten-unit
multifamily residential building (the building 0r the project) in San Mateo in
2015. As proposed, the building would stretch the length of a block on North
El Camino Real, bounded by El Camino Real on the east, West Santa Inez
Avenue at the south, and Engle Road atthe north. West Santa Inez Avenue
and Engle Road are both in residential neighborhoods of single-family
houses. Immediately to the west of the project are a two-story house on West
Santa Inez Avenue and a single-story houSe on Engle Road. The project site
is designated in the City’s general plan—and zoned—for high-density
multifamily dwellings, “R4” Zoning.
Staff to the City’s Planning Commission (the Commission) reviewed
Gundogdu’s application and, after securing minor changes to the proposal,
concluded it was consistent with the City’s general plan and its Multi-Family
Design Guidelines (the Guidelines). Staff recommended the Commission
approve the project. They reported that “[V]ariations in the roof forms help to
create a transition” between the building and the single—family homes to the
north and west, and that “[p]roposed landscaping helps to soften the
structure and provide buffers to the adj acent single-family residences.”
Alterations made at the behest of Commission staff included adding trellises
to facades “to create more articulation and add horizontal elements,” thus
“reduc[ing] the appearance of height.”
The application came before the Commission in August 2017. At the
hearing, a number of City residents opposed the project, on grounds including
concerns that it was out of scale with the adjacent single-family residential
area. The Commission continued the hearing. Before the next hearing,
planning staff again recommended apprOval, subject to revised conditions.
The staff again proposed the Commission find the project is “in scale and
harmonious with the character of the neighborhood” and “meets all
applicable standards,” including that it “complies with the City’s Multi-
Family Dwelling Design Guidelines.”
On September 26, 2017, commissioners nonetheless expressed concern
that the proposed building was out of scale with the houses in the
neighborhood, and the Commission voted to disapprove the project, directing
staff to prepare findings for denial. So directed, the staff next proposed
findings that the project is “n_ot in scale and .. . n_ot harmonious with the
character of the neighborhood.” The building is “too tall,” “too large and
bulky for the subject site due to [its] four-story height,” and “not in keeping
with the smaller one and two story dwellings in the area.” Key to this case,
the proposed findings noted that on the Engle Road side there is a two-story
differential between the project and adj acent single-family dwellings
(ignoring the fourth story, which is stepped back). Thus, “[t]he project is not
in substantial compliance with” the Guidelines’ limitations on building scale,
which direct that if there is more than a one-story variation in height
between adjacent buildings, “a transition or step in height is necessary,”
including that a project should “step back upper oors to ease the transition.”
Adopting these proposed findings in full, the Commission denied the
project Without prejudice on October 10, 2017. The City Council considered
the appeal on February 5, 2018, and upheld the Commission’s decision, also
denying the application without prejudice. Appellants then brought this
action seeking a writ of administrative mandamus (Code CiV. Proc., § 1094.5)
on the ground the denial violated the HAA.
The trial court denied the petition. Before doing so, the court asked the
parties for additional briefing on a number of issues, including the following:
“If either party contends that some aspect of [subdivision] (f)(4) is or is not
enforceable or is or is not applicable to this action, the parties are ordered to
provide all authority supporting that contention.” In response, the City
argued that the HAA’s subdivision (f) (4) violates the California Constitution
by infringing on the City’s right to “home rule”—or control of its own
municipal affairs as a charter city—and by unlawfully delegating municipal
functions to private parties, and that subdivision (f) (4) raises due process
concerns because it deprives neighboring landowners of a meaningful
hearing. CARLA did not address these issues, either in its briefing or at the
hearing on the petition.
The trial court in its ruling found that the City’s Guidelines were
“ ” HAA and that the
‘applicable, objective’ standards for purposes of the
project did not satisfy the Guidelines, and accordingly stated it would deny
the petition for writ of mandate. Despite reaching this seemingly dispositive
result, the court went on to conclude that, to the extent the HAA conicted
With “otherwise enforceable portions of the city’s Municipal Code regarding
review of housing development projects,” it was unenforceable as an
impermissible intrusion into the City’s municipal affairs under the home rule
doctrine of the California Constitution (Cal. Const., art. XI, § 5(a)) and
violated the prohibition on delegation of municipal affairs to private parties
(Cal. Const, art. XI, § 11(a)). With these sweeping conclusions, the court had
no occasion to reach the City’s due process argument.
The court later'denied CARLA’s motion for a new trial, and this timely
appeal ensued. Before this court, CARLA defends the constitutionality of the
HAA and argues the project meets all applicable standards. lntervening, the
Attorney General argues that the HAA is constitutional and that the trial
court erred in deferring to the City’s interpretation of its Guidelines. (See
Code Civ. Proc., §§ 664.5, subd. (e), 902.1.) The City urges us to affirm the
trial court’s judgment without reaching the constitutional issues, but also
contends that CARLA’s interpretation of the HAA violates the California
Constitution. And numerous amici have weighed in with helpful briefs.3
DISCUSSION
Because it is fundamental, we begin with a careful examination of the
HAA as it operates and has evolved in the context of California’s system for
approving new housingdevelopment. We then address whether the City’s
denial of this project application violates the HAA; if, as the City urges, we
answer that question in the negative, we need not reach the constitutional
issues. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66
[courts do not decide constitutional issues unnecessarily].) Because we
3
In support of appellants are the Building Industry Association-Bay
Area, the San Francisco Bay Area Planning and Urban Research Association,
Bay Area Council, and Housing Action Coalition; Californians for
Homeownership and the California Association of Realtors®; Habitat for
Humanity Greater San Francisco, Inc.; and law professors Christopher S.
Elmendorf, Michelle Wilder Anderson, Anika Singh Lemar, Dave Owen,
Darien Shanske, and Kenneth Stahl. In support of respondents are the.
League of California Cities and the California State Association of Counties.
6
conclude that the City’s decision did Violate the HAA, go on to address the
we
constitutionality of, and uphold, the statute.
I. The Housing Accountability Act
More than 50 years ago, the Legislature enacted a broad measure
“t
requiring counties and cities to adopt a comprehensive, long-term general
)J)
plan for the physical development of the county or city, with a housing
element designed to promote adequate housing for the community.
(California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 485,
444 (San Jose), quoting Gov. Code, § 65300 et seq., enacted by Stats. 1965,
ch. 1880, § 5.) The Legislature went further in 1980 with the Housing
Element Law, which “set forth in considerable detail a municipality’s
obligations to analyze and quantify the .. . lo'cality’s share of the regional
‘
housing need as determined by the applicable regional “[c]ouncil of
’
governments” (Gov. Code., § 65582, subd. (b)), and to adopt and to submit to
California’s Department of Housing and Community Development a
multiyear schedule of actions the local government is undertaking to meet
these needs. (Id., §§ 65583—65588)” (San Jose, at p. 445; see Elmendorf,
Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental
Compacts (2019) 71 Hastings L.J. 79, 100—103.) Local governments prepare
housing elements, but the state’s Department of Housing and Community
Development must approve them. (San Jose, at p. 445.)
Since 1980, local g0vernments have failed to approve, and developers
have failed to build, housing in quantities approximating regional housing
needs. As an example, a report of the Civil Grand Jury of Santa Clara
County shows that of 16 jurisdictions in the county, fewer than half met their
regional housing needs assessment between 2007 and 2014. (Civil Grand
Jury of Santa Clara County, Affordable Housing Crisis: Density is our.
Destiny (June 2018), p. 7.) And the California Department of Housing and
Community Development reported in 2018 that for the previous ten years,
California had averaged fewer than 80,000 new homes permitted annually—
less than half the projected need for 180,000 homes a year. (Dept. of Housing
and Community Development, California’s Housing Future: Challenges and
Opportunities, Final Statewide Housing Assessment 2025 (Feb. 2018) p. 5.)
A report from the California Legislative Analyst’s Office found a similar
shortfall for the entire period of 1980 to 2010, and attributed it in part to
community resistance to new housing, facilitated by laws allowing cities and
counties to control when and where development occurs. (Legislative
Analyst’s Office, California’s High Housing Costs: Causes and Consequences
(Mar. 2015) pp. 15, 21.)
Against this backdrop, the Legislature enacted in 1982 the HAA,
colloquially known as the “Anti-NIMBY” (Not-In-My-Back-Yard) law, and it
has amended the statute repeatedly in an increasing effort to compel local
governments to approve more housing. (§ 65589.5, subd. (a); Ruegg &
Ellsworth v. City ofBerkeley (2021) 63 Cal.App.5th 277, 295—297 (Ruegg);
Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1068 .
(Honchariw).) As originally enacted—and still generally today—the HAA
provides that when a proposed housing development complies 'with applicable
general plan, zoning,.and development policies, the local agency may
disapprove the project (or approve it on condition that it be developed at
lower density) only if the local agency finds that the project would have a
specific, adverse, and unavoidable impact on public health or safety. (Stats.
1982, ch. 1438, § 2; Honchariw, at pp. 1074—1075; § 65589.5, subd. (j)(1).)
Ensuing amendments to the HAA have sought to serve and clarify the
Legislature’s intent. In 1990, the Legislature made the HAA expressly
applicable to charter cities. (Former § 65589.5, subds. (a)(1) & (2), (g); Stats.
1990, ch. 1439, § 1.) In 1999, the Legislature amended the operative
language of subdivision (j) to narrow the kinds of policies that could be
invoked to defeat an application, adding the italicized words: “When a
I
proposed housing development project complies with applicable, objective
general plan and zoning standards and criteria,” the project cannot be denied
or reduced in density Without the specified health and safety findings. (Stats.
1999, ch. 968, § 6,1italics added.) A 2002 amendment clarified that the '
phrase “general plan and zoning standards and criteria” includes “design
review standards.” (Stats. 2002, ch. 1721, §,1.) And a 2005 amendment
authorized fines if a local agency denied a project in bad faith. (Former
§ 6555895, subd. (l); Stats. 2005, ch. 601, § 1.)
In 2016, the Legislature, added an enhanced standing provision,
allowing not only a person eligible for residency in a development but also a
housing organization to bring an action to challenge a local agency’s
disapproval of a housing development. (Former § 6555895, subd. (k)(1) & (2),
Stats. 2016, ch. 420, § 1.)
Still dissatisfied with the dearth of housing in this state, the
Legislature in 2017 passed further amendments t0 the HAA, supported by
detailed findings. The Legislature added a provision requiring that an
applicant receive timely written notice and an explanation if an agency
considers aproposed housing development inconsistent with applicable
standards. (§ 65589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.) It heightened
fines for bad faith disapproval of a project. (§ 65589.5, subd. (l); Stats. 2017,
ch. 878, § 1.5.) And it increased the burden of proof required for a finding of
adverse effect on public health or safety. (§ 6555895, subd. (j)(1); Stats.
i
2017, ch. 378, § 1.5.)
Most importantly for our purposes, the Legislature added subdivision
(i) (4), Which provides, “For purposes of this section, a housing development
project . . .shall be deemed consistent, compliant, and in conformity with an
applicable plan, program, policy, ordinance, standard, requirement, or other
similar provision if there is substantial evidence that would allow a
reasonable person to conclude that the housing development project . .. is
consistent, compliant, and in conformity.” (Stats. 2017, ch. 378, § 1.5.)
I
Finally, the Legislature added this interpretative gloss on the statute:
“It is the policy of the state that [the HAA] should be interpreted and
implemented in a manner to afford the fullest possible weight to the interest
of, and the approval and provision of, housing.” (§ 65589.5, subd. (a)(2)(L),
Stats. 2017, ch. 378, § 1.5.)
In this case, the City made no findings regarding an adverse impact on
public health or safety, and no party contends this portion of the statute is
relevant to our analysis. Also not at issue are separate provisions of the HAA
addressing below-market-rate housing and emergency shelters. (See, e.g.,
§ 65589.5, subds. (d), (h)(3), (k)(1)(A)(ii).) The key provision for our review is
subdivision (j), which now provides that in the absence of health and safety
findings a local agency may not disapprove or reduce the density of a
proposed housing development that “complies with applicable, objective
general plan, zoning, and subdivision standards and criteria, including
design review standards, in effect at the time that the application was
deemed complete.” (§ 65589.5, subd. (j)(1).)
II. The City’s Rejection of the Project Violated the HAA
A. Standard 0f Review
CARLA brings this petition for administrative mandamus under Code
'of Civil Procedure section 1094.5, seeking to enforce the HAA. (See
10
§ 65589.5, subd. (m).) Our task is therefore to determine Whether the City
“proceeded in the manner required by law,” with a decision supported by the
findings, and findings sdpported by the evidence; if not, the City abused its
discretion. (Code CiV. Proc., § 1094.5, subd. (b); Honchariw, supra, 200
-
Ca1.App.4th at p. 1072.)
To the extent our decision rests on factual issues, our scope of review is
identical to that of the trial court. We examine the findings of the public
entity itself and the relevant materials in the administrative record to
determine Whether the decision should be the City’s action,
upheld,_reviewing
and not the trial court’s decision. (See Kalnel Gardens, LLC v. City of L03
Angeles (2016) 3 Cal.App.5th 927, 937—938.) However, instead of asking, as
is common in administrative mandamus actions, “whether the City’s findings
are supported by substantial evidence” (ibid), we inquire whether there is
“substantial evidence that would allow a reasonable person to conclude that
the housing development project” complies with pertinent standards.
(§ 6555895, subd. (f)(4).) As the public entity that disapproved the project,
the City bears the burden of proof that its decision conformed to the HAA.
'
(§ 65589.6.)
Questions of law, including the proper interpretation of a statute, we
review independently, although we may take into account an agency’s
interpretation of its own‘rules in appropriate circumstances. (Yamaha Corp.
ofAmerica v. State Bd. Oquualization (1998) 19 Cal.4th 1, 8 (Yamaha).)
Where the constitutionality of a statute is challenged, we bear in mind that
”
“a statute, once duly enacted, ‘is presumed to be constitutional,’ such that
“ and
any ‘[u]nconstitutionality must be clearly shown. (Lockyer v. City
County of San Francisco (2004) 33 Cal.4th 1055, 1086.)
11
B. General Plan and Multifamily Design Guidelines
One 0f the goals enumerated in the housing element of the City’s
general plan is to “[m]aintain the character and physical quality of
residential neighborhoods.” To that end, the housing element establishes a
policy of “[r]eview[ing] development proposals for conformance to the City’s
multi-family design guidelines for sites located in areas that contain
substantial numbers of single-family homes.
i)
[N]ew multi-family projects in
i
areas having a predominance of single-family residences should be of a_ scale
and include design features which are compatible with surrounding single-
family homes,” the housing element directs, “while maintaining housing
affordability as a major goal.”
The urban design element of the general plan also notes that the City
adopted the Guidelines because “the character of the neighborhood,”
including the scale of its buildings, is important in a residential area. To
maintain and enhance the character of residential neighborhoods, the urban
design element includes a policy to “[e]nsure that new multi-family
developments substantially conform to the City’s Multi-family and Small Lot
Multi-family Design Guidelines. . . .”
The portion of the Guidelines with which the City found the project
'
inconsistent addresses building scale. The Guidelines provide, under the
topic “Height,” as follows: “Most multi[-]family neighborhoods in San Mateo
are 1 to 4 stories in height. When the changes in height are gradual, the
scale is compatible and Visually interesting. If height varies by more than -
1 story between buildings, a transition or step in height is necessary. Any
portion of a building constructed taller than surrounding structures should
have the taller section built to a width that acknowledges the traditional
building Width pattern of the City—generally 30 t0 50 feet in width.” The
12
design objectives listed for this guideline are, “Avoid changes in building
height greater than one story from adjacent structures. ‘If changes are
greater, stepback upper oors to ease the transition,” and “Construct taller
portions at traditional building Widths, generally 30 to 50 feet Wide.” (Partial
italics omitted.)
An accompanying illustration shows an appropriate design in which
“[u]pper oors of the multi[-]family building are stepped[ ]back Where
adjacent to an existing building that is tvlro stories lower.” In that
illustration, no adjacent portion of the larger building is more than one story
higher than the smaller existing building. An illustration of an inappropriate
design shows a two-story house next to a box-like four-story multifamily
building.
C. Application of the HAA
The pivotal question in our application of the HAA is whether the
Guidelines qualify as “applicable, objective general plan, zoning, and
7
subdivision standards and criteria, including design review standards,”
which would allow the City to disapprove the project if they are not satisfied.
(§ 65589.5, subd. (j)(1).) As to the portion of the Guidelines that addresses
height, we conclude the Guidelines do not qualify as objective for purposes of
the HAA.
As an initial matter, the partiesdisagree on the standard of review.
The City urges that the issue be treated as one of law, subject to our de novo
review as an issue of statutory interpretation but with deference to the City
in interpreting its own rules. CARLA urges us to apply, to legal as well as
factual issues, subdivision (f)(4)’s mandate that a project is deemed consistent
with applicable standards if there is substantial evidence allowing a
reasonable person so to conclude.
13
We model our answer on the decision of our colleagues in Division Two
of this court in Ruegg. In construing a different statute intended also to
restrict local authorities’ ability to deny applications for new housing, they
“{
considered whether a project would require the demolition of a historic
”
structure that was placed on a national, state, or local historic register.’
(Ruegg, supra, 63 Cal.App.5th at p. 801, quoting § 65913.4, subd. (a)(7)(C).)
This question, the Ruegg court concluded, had both a legal and a factual
component: whether the type of object at issue, an ancient shellmound, was a
“ ”
‘structure’ within the meaning of the statute was a que
Preview
.1 < COURT OF APPEAL, FIRST APPELLATE DISTRICT 350 MCALLISTER STREET SAN MATEQ GOUWV E SAN FRANCISCO, CA 94102 ' NOV'l 6 2021 DIVISION 4 Ofce of the County Clerk San Mateo County Superior Court — Main (Redwood City) ByjClerk tthe suparlor calm oepuwdEHK Attention: Appeals Section 400 County Center ’Redwood City, CA 94063 CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND, et a1., and Appellants, v. CITY OF SAN MATEO, et al., and Respondents; TONY MEHMET GUNDOGDU et al., Palties in Interest; ROB BONTA, as Attorney General, etc., and Respondent. A159320, A159658 San Mateo County Super. Ct. No. 18CIV02105 * * REMITTITUR * * I, Charles D. Johnson, Clerk of the Court of Appeal of the’State of California, for the First Appellate District, do hereby certify that the attached is a true and correct copy ofthe original opinion or decision entered in the above—entitled cause on September 10, 2021 and that this opinion has now become nal. _Appellant _Respondent to recover costs _Each party to bear own costs _Costs are not awarded in this proceeding iSee decision for costs determination Witness my hand and the Seal of the Court afxed at my ofce this November 10, 2021. h Very truly your s, . I CharlesD Johnson _3“”_~v\\ VI:' Clerk of Court V L ‘7 Deputy Clerk P. O. Report: Marsden T anscript: Boxed Tr Exhibits: None o the above: I reml Court of Appeal. First Appellate District Charles D. Johnson. Clerk/Executive Ofcer Electronically FILED on 9/10/2021 by C. Hoo. Deputy Clerk Filed 09/10/2021 CERTIFIED FOR PUBLICATION \ i IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR CALIFORNIA RENTERS LEGAL ADVOCACY AND EDUCATION FUND, et a1., Plaintiffs and Appellants, A159320, A159658 V. (San Mateo County CITY OF SAN MATEO, et a1., Super. Ct. No. 18-CIV-02105) Defendants and Respondents; TONY MEHMET GUNDOGDU et a1., Real Parties in Interest; ROB BONTA, as Attorney General, etc., Intervener and Respondent. “California has a housing supply and affordability crisis of historic proportions.” (Gov. Code, § 65589.5, subd. (a)(2)(A).)1 This “despite the fact that, for decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels.” (§ 65589.5, subd. (a)(2)(J).) Among these statutes is the Housing Accountability Act (HAA) (Gov. Code, § 65589.5), enacted in 1982 With the goal of “meaningfully and effectively curbing the capability of 1 All undesignated statutory references are to the Government Code. 1 4L C1 local governments to deny, reduce the density for, or render infeasible housing development projects.” (§ 65589.5, subd. (a)(2)(K).) In this, the HAA ' has historically failed. (11nd) These were the ndings of the Legislature in 2017, when it amended the HAA to strengthen the statute. (Stats. 2017, ch. 378, § 1.5.) In relevant part, the HAA restricts the ability of local governments to deny an application to build housing if the proposed project complies with general plan, zoning, and design review standards that are “objective.” (§ 65589.5, subd. (j)(1).) A 2017 amendment adds teeth to this restriction by defining what it means to comply with such standards: a housing development project is deemed to comply if “substantial evidence . ...would allow a reasonable person to conclude” that it does. (§ 65589.5, subd. (6(4) (subdivision (i)(4)).) This case raises questions about how to apply the HAA as amended and whether the statute, especially subdivision (6(4), violates the California Constitution. _ After the City of San Mateo (the City) denied an application to build a ten-unit apartment building, petitioners California Renters Legal Advocacy and Education Fund, Victoria Fierce, and John Moon (collectively, CARLA) sought a writ of administrative mandamus seeking to compel the project’s approval? The trial court denied the petition, ruling that the project did not satisfy the City’s design guidelines for multifamily homes and that, to the extent the HAA required the City to ignore its own guidelines, it was an unconstitutional infringement on the City’s right to home rule and an unconstitutional delegation of municipal powers. 2 The petition was also brought on behalf of San Francisco Bay Area Renters ASSOCiation, which is not a party to this appeal. 2 I ‘4)“ We'conclude otherwise. The design guideline the City invoked as part of its reason for rejecting this housing development is not “objective.” for purposes of the HAA, and s0 cannotsupport the City’s decision to reject the project. And because the HAA checks municipal authority only as necessary t0 further the statewide interest in new housing development, the HAA- does not infringe on the City’s right to home rule. Rejecting the City’s other constitutional arguments as well, we reverse. I FACTUAL AND PROCEDURAL BACKGROUND Tony Gundogdu submitted an application to build a four-story, ten-unit multifamily residential building (the building 0r the project) in San Mateo in 2015. As proposed, the building would stretch the length of a block on North El Camino Real, bounded by El Camino Real on the east, West Santa Inez Avenue at the south, and Engle Road atthe north. West Santa Inez Avenue and Engle Road are both in residential neighborhoods of single-family houses. Immediately to the west of the project are a two-story house on West Santa Inez Avenue and a single-story houSe on Engle Road. The project site is designated in the City’s general plan—and zoned—for high-density multifamily dwellings, “R4” Zoning. Staff to the City’s Planning Commission (the Commission) reviewed Gundogdu’s application and, after securing minor changes to the proposal, concluded it was consistent with the City’s general plan and its Multi-Family Design Guidelines (the Guidelines). Staff recommended the Commission approve the project. They reported that “[V]ariations in the roof forms help to create a transition” between the building and the single—family homes to the north and west, and that “[p]roposed landscaping helps to soften the structure and provide buffers to the adj acent single-family residences.” Alterations made at the behest of Commission staff included adding trellises to facades “to create more articulation and add horizontal elements,” thus “reduc[ing] the appearance of height.” The application came before the Commission in August 2017. At the hearing, a number of City residents opposed the project, on grounds including concerns that it was out of scale with the adjacent single-family residential area. The Commission continued the hearing. Before the next hearing, planning staff again recommended apprOval, subject to revised conditions. The staff again proposed the Commission find the project is “in scale and harmonious with the character of the neighborhood” and “meets all applicable standards,” including that it “complies with the City’s Multi- Family Dwelling Design Guidelines.” On September 26, 2017, commissioners nonetheless expressed concern that the proposed building was out of scale with the houses in the neighborhood, and the Commission voted to disapprove the project, directing staff to prepare findings for denial. So directed, the staff next proposed findings that the project is “n_ot in scale and .. . n_ot harmonious with the character of the neighborhood.” The building is “too tall,” “too large and bulky for the subject site due to [its] four-story height,” and “not in keeping with the smaller one and two story dwellings in the area.” Key to this case, the proposed findings noted that on the Engle Road side there is a two-story differential between the project and adj acent single-family dwellings (ignoring the fourth story, which is stepped back). Thus, “[t]he project is not in substantial compliance with” the Guidelines’ limitations on building scale, which direct that if there is more than a one-story variation in height between adjacent buildings, “a transition or step in height is necessary,” including that a project should “step back upper oors to ease the transition.” Adopting these proposed findings in full, the Commission denied the project Without prejudice on October 10, 2017. The City Council considered the appeal on February 5, 2018, and upheld the Commission’s decision, also denying the application without prejudice. Appellants then brought this action seeking a writ of administrative mandamus (Code CiV. Proc., § 1094.5) on the ground the denial violated the HAA. The trial court denied the petition. Before doing so, the court asked the parties for additional briefing on a number of issues, including the following: “If either party contends that some aspect of [subdivision] (f)(4) is or is not enforceable or is or is not applicable to this action, the parties are ordered to provide all authority supporting that contention.” In response, the City argued that the HAA’s subdivision (f) (4) violates the California Constitution by infringing on the City’s right to “home rule”—or control of its own municipal affairs as a charter city—and by unlawfully delegating municipal functions to private parties, and that subdivision (f) (4) raises due process concerns because it deprives neighboring landowners of a meaningful hearing. CARLA did not address these issues, either in its briefing or at the hearing on the petition. The trial court in its ruling found that the City’s Guidelines were “ ” HAA and that the ‘applicable, objective’ standards for purposes of the project did not satisfy the Guidelines, and accordingly stated it would deny the petition for writ of mandate. Despite reaching this seemingly dispositive result, the court went on to conclude that, to the extent the HAA conicted With “otherwise enforceable portions of the city’s Municipal Code regarding review of housing development projects,” it was unenforceable as an impermissible intrusion into the City’s municipal affairs under the home rule doctrine of the California Constitution (Cal. Const., art. XI, § 5(a)) and violated the prohibition on delegation of municipal affairs to private parties (Cal. Const, art. XI, § 11(a)). With these sweeping conclusions, the court had no occasion to reach the City’s due process argument. The court later'denied CARLA’s motion for a new trial, and this timely appeal ensued. Before this court, CARLA defends the constitutionality of the HAA and argues the project meets all applicable standards. lntervening, the Attorney General argues that the HAA is constitutional and that the trial court erred in deferring to the City’s interpretation of its Guidelines. (See Code Civ. Proc., §§ 664.5, subd. (e), 902.1.) The City urges us to affirm the trial court’s judgment without reaching the constitutional issues, but also contends that CARLA’s interpretation of the HAA violates the California Constitution. And numerous amici have weighed in with helpful briefs.3 DISCUSSION Because it is fundamental, we begin with a careful examination of the HAA as it operates and has evolved in the context of California’s system for approving new housingdevelopment. We then address whether the City’s denial of this project application violates the HAA; if, as the City urges, we answer that question in the negative, we need not reach the constitutional issues. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66 [courts do not decide constitutional issues unnecessarily].) Because we 3 In support of appellants are the Building Industry Association-Bay Area, the San Francisco Bay Area Planning and Urban Research Association, Bay Area Council, and Housing Action Coalition; Californians for Homeownership and the California Association of Realtors®; Habitat for Humanity Greater San Francisco, Inc.; and law professors Christopher S. Elmendorf, Michelle Wilder Anderson, Anika Singh Lemar, Dave Owen, Darien Shanske, and Kenneth Stahl. In support of respondents are the. League of California Cities and the California State Association of Counties. 6 conclude that the City’s decision did Violate the HAA, go on to address the we constitutionality of, and uphold, the statute. I. The Housing Accountability Act More than 50 years ago, the Legislature enacted a broad measure “t requiring counties and cities to adopt a comprehensive, long-term general )J) plan for the physical development of the county or city, with a housing element designed to promote adequate housing for the community. (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 485, 444 (San Jose), quoting Gov. Code, § 65300 et seq., enacted by Stats. 1965, ch. 1880, § 5.) The Legislature went further in 1980 with the Housing Element Law, which “set forth in considerable detail a municipality’s obligations to analyze and quantify the .. . lo'cality’s share of the regional ‘ housing need as determined by the applicable regional “[c]ouncil of ’ governments” (Gov. Code., § 65582, subd. (b)), and to adopt and to submit to California’s Department of Housing and Community Development a multiyear schedule of actions the local government is undertaking to meet these needs. (Id., §§ 65583—65588)” (San Jose, at p. 445; see Elmendorf, Beyond the Double Veto: Housing Plans as Preemptive Intergovernmental Compacts (2019) 71 Hastings L.J. 79, 100—103.) Local governments prepare housing elements, but the state’s Department of Housing and Community Development must approve them. (San Jose, at p. 445.) Since 1980, local g0vernments have failed to approve, and developers have failed to build, housing in quantities approximating regional housing needs. As an example, a report of the Civil Grand Jury of Santa Clara County shows that of 16 jurisdictions in the county, fewer than half met their regional housing needs assessment between 2007 and 2014. (Civil Grand Jury of Santa Clara County, Affordable Housing Crisis: Density is our. Destiny (June 2018), p. 7.) And the California Department of Housing and Community Development reported in 2018 that for the previous ten years, California had averaged fewer than 80,000 new homes permitted annually— less than half the projected need for 180,000 homes a year. (Dept. of Housing and Community Development, California’s Housing Future: Challenges and Opportunities, Final Statewide Housing Assessment 2025 (Feb. 2018) p. 5.) A report from the California Legislative Analyst’s Office found a similar shortfall for the entire period of 1980 to 2010, and attributed it in part to community resistance to new housing, facilitated by laws allowing cities and counties to control when and where development occurs. (Legislative Analyst’s Office, California’s High Housing Costs: Causes and Consequences (Mar. 2015) pp. 15, 21.) Against this backdrop, the Legislature enacted in 1982 the HAA, colloquially known as the “Anti-NIMBY” (Not-In-My-Back-Yard) law, and it has amended the statute repeatedly in an increasing effort to compel local governments to approve more housing. (§ 65589.5, subd. (a); Ruegg & Ellsworth v. City ofBerkeley (2021) 63 Cal.App.5th 277, 295—297 (Ruegg); Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1068 . (Honchariw).) As originally enacted—and still generally today—the HAA provides that when a proposed housing development complies 'with applicable general plan, zoning,.and development policies, the local agency may disapprove the project (or approve it on condition that it be developed at lower density) only if the local agency finds that the project would have a specific, adverse, and unavoidable impact on public health or safety. (Stats. 1982, ch. 1438, § 2; Honchariw, at pp. 1074—1075; § 65589.5, subd. (j)(1).) Ensuing amendments to the HAA have sought to serve and clarify the Legislature’s intent. In 1990, the Legislature made the HAA expressly applicable to charter cities. (Former § 65589.5, subds. (a)(1) & (2), (g); Stats. 1990, ch. 1439, § 1.) In 1999, the Legislature amended the operative language of subdivision (j) to narrow the kinds of policies that could be invoked to defeat an application, adding the italicized words: “When a I proposed housing development project complies with applicable, objective general plan and zoning standards and criteria,” the project cannot be denied or reduced in density Without the specified health and safety findings. (Stats. 1999, ch. 968, § 6,1italics added.) A 2002 amendment clarified that the ' phrase “general plan and zoning standards and criteria” includes “design review standards.” (Stats. 2002, ch. 1721, §,1.) And a 2005 amendment authorized fines if a local agency denied a project in bad faith. (Former § 6555895, subd. (l); Stats. 2005, ch. 601, § 1.) In 2016, the Legislature, added an enhanced standing provision, allowing not only a person eligible for residency in a development but also a housing organization to bring an action to challenge a local agency’s disapproval of a housing development. (Former § 6555895, subd. (k)(1) & (2), Stats. 2016, ch. 420, § 1.) Still dissatisfied with the dearth of housing in this state, the Legislature in 2017 passed further amendments t0 the HAA, supported by detailed findings. The Legislature added a provision requiring that an applicant receive timely written notice and an explanation if an agency considers aproposed housing development inconsistent with applicable standards. (§ 65589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.) It heightened fines for bad faith disapproval of a project. (§ 65589.5, subd. (l); Stats. 2017, ch. 878, § 1.5.) And it increased the burden of proof required for a finding of adverse effect on public health or safety. (§ 6555895, subd. (j)(1); Stats. i 2017, ch. 378, § 1.5.) Most importantly for our purposes, the Legislature added subdivision (i) (4), Which provides, “For purposes of this section, a housing development project . . .shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project . .. is consistent, compliant, and in conformity.” (Stats. 2017, ch. 378, § 1.5.) I Finally, the Legislature added this interpretative gloss on the statute: “It is the policy of the state that [the HAA] should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5, subd. (a)(2)(L), Stats. 2017, ch. 378, § 1.5.) In this case, the City made no findings regarding an adverse impact on public health or safety, and no party contends this portion of the statute is relevant to our analysis. Also not at issue are separate provisions of the HAA addressing below-market-rate housing and emergency shelters. (See, e.g., § 65589.5, subds. (d), (h)(3), (k)(1)(A)(ii).) The key provision for our review is subdivision (j), which now provides that in the absence of health and safety findings a local agency may not disapprove or reduce the density of a proposed housing development that “complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.” (§ 65589.5, subd. (j)(1).) II. The City’s Rejection of the Project Violated the HAA A. Standard 0f Review CARLA brings this petition for administrative mandamus under Code 'of Civil Procedure section 1094.5, seeking to enforce the HAA. (See 10 § 65589.5, subd. (m).) Our task is therefore to determine Whether the City “proceeded in the manner required by law,” with a decision supported by the findings, and findings sdpported by the evidence; if not, the City abused its discretion. (Code CiV. Proc., § 1094.5, subd. (b); Honchariw, supra, 200 - Ca1.App.4th at p. 1072.) To the extent our decision rests on factual issues, our scope of review is identical to that of the trial court. We examine the findings of the public entity itself and the relevant materials in the administrative record to determine Whether the decision should be the City’s action, upheld,_reviewing and not the trial court’s decision. (See Kalnel Gardens, LLC v. City of L03 Angeles (2016) 3 Cal.App.5th 927, 937—938.) However, instead of asking, as is common in administrative mandamus actions, “whether the City’s findings are supported by substantial evidence” (ibid), we inquire whether there is “substantial evidence that would allow a reasonable person to conclude that the housing development project” complies with pertinent standards. (§ 6555895, subd. (f)(4).) As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. ' (§ 65589.6.) Questions of law, including the proper interpretation of a statute, we review independently, although we may take into account an agency’s interpretation of its own‘rules in appropriate circumstances. (Yamaha Corp. ofAmerica v. State Bd. Oquualization (1998) 19 Cal.4th 1, 8 (Yamaha).) Where the constitutionality of a statute is challenged, we bear in mind that ” “a statute, once duly enacted, ‘is presumed to be constitutional,’ such that “ and any ‘[u]nconstitutionality must be clearly shown. (Lockyer v. City County of San Francisco (2004) 33 Cal.4th 1055, 1086.) 11 B. General Plan and Multifamily Design Guidelines One 0f the goals enumerated in the housing element of the City’s general plan is to “[m]aintain the character and physical quality of residential neighborhoods.” To that end, the housing element establishes a policy of “[r]eview[ing] development proposals for conformance to the City’s multi-family design guidelines for sites located in areas that contain substantial numbers of single-family homes. i) [N]ew multi-family projects in i areas having a predominance of single-family residences should be of a_ scale and include design features which are compatible with surrounding single- family homes,” the housing element directs, “while maintaining housing affordability as a major goal.” The urban design element of the general plan also notes that the City adopted the Guidelines because “the character of the neighborhood,” including the scale of its buildings, is important in a residential area. To maintain and enhance the character of residential neighborhoods, the urban design element includes a policy to “[e]nsure that new multi-family developments substantially conform to the City’s Multi-family and Small Lot Multi-family Design Guidelines. . . .” The portion of the Guidelines with which the City found the project ' inconsistent addresses building scale. The Guidelines provide, under the topic “Height,” as follows: “Most multi[-]family neighborhoods in San Mateo are 1 to 4 stories in height. When the changes in height are gradual, the scale is compatible and Visually interesting. If height varies by more than - 1 story between buildings, a transition or step in height is necessary. Any portion of a building constructed taller than surrounding structures should have the taller section built to a width that acknowledges the traditional building Width pattern of the City—generally 30 t0 50 feet in width.” The 12 design objectives listed for this guideline are, “Avoid changes in building height greater than one story from adjacent structures. ‘If changes are greater, stepback upper oors to ease the transition,” and “Construct taller portions at traditional building Widths, generally 30 to 50 feet Wide.” (Partial italics omitted.) An accompanying illustration shows an appropriate design in which “[u]pper oors of the multi[-]family building are stepped[ ]back Where adjacent to an existing building that is tvlro stories lower.” In that illustration, no adjacent portion of the larger building is more than one story higher than the smaller existing building. An illustration of an inappropriate design shows a two-story house next to a box-like four-story multifamily building. C. Application of the HAA The pivotal question in our application of the HAA is whether the Guidelines qualify as “applicable, objective general plan, zoning, and 7 subdivision standards and criteria, including design review standards,” which would allow the City to disapprove the project if they are not satisfied. (§ 65589.5, subd. (j)(1).) As to the portion of the Guidelines that addresses height, we conclude the Guidelines do not qualify as objective for purposes of the HAA. As an initial matter, the partiesdisagree on the standard of review. The City urges that the issue be treated as one of law, subject to our de novo review as an issue of statutory interpretation but with deference to the City in interpreting its own rules. CARLA urges us to apply, to legal as well as factual issues, subdivision (f)(4)’s mandate that a project is deemed consistent with applicable standards if there is substantial evidence allowing a reasonable person so to conclude. 13 We model our answer on the decision of our colleagues in Division Two of this court in Ruegg. In construing a different statute intended also to restrict local authorities’ ability to deny applications for new housing, they “{ considered whether a project would require the demolition of a historic ” structure that was placed on a national, state, or local historic register.’ (Ruegg, supra, 63 Cal.App.5th at p. 801, quoting § 65913.4, subd. (a)(7)(C).) This question, the Ruegg court concluded, had both a legal and a factual component: whether the type of object at issue, an ancient shellmound, was a “ ” ‘structure’ within the meaning of the statute was a que