In a significant win for housing advocates, an Orange County judge has reversed her previous ruling, saying that Huntington Beach actually did violate the Housing Accountability Act in rejecting a 48-unit condominium building just off Beach Boulevard.
The judge reversed herself after an appellate court ruling from the City of San Mateo – in a lawsuit brought by the same plaintiffs, the California Rental Legal Advocacy and Education Fund, or CaRLA – clarified what local governments must do to comply with the “objective standards” requirement in the law.
In August, Judge Deborah Servino found that Huntington Beach complied with the Housing Accountability Act in rejecting the project, saying that, even though the staff had found conformity with all applicable standards, the staff’s judgment cannot be substituted for that of the planning commission and the city council. However, in a 22-page ruling on October 4, she reversed herself, saying that in the San Mateo case the First District Court of Appeal ruled that “because there must be substantial evidence that would allow a reasonable person to conclude the project was compliant, ‘[t]here is thus no basis for concern that subdivision(f)(4) would require project approval based solely on the unsupported opinion of a single person, or on evidence that a reasonable person would not find credible and persuasive’.” In other words, the staff’s judgment can override that of the city council or planning commission if the situation meets the “substantial evidence/reasonable person” test.
Judge Servino also ruled that there was not sufficient evidence that the project would create health and safety impacts that could not be mitigated – a requirement under the Housing Accountability Act required to override the mandate for “objective standards”.
The case involved a proposed project under the Beach and Edinger Corridors Specific Plan. (BECSP), which has been the subject of considerable commentary in the last few years. In 2019, the staff recommended approval of the project, saying that it conformed with the BECSP and in fact drafted findings to support the approval of a tentative tract map and conditional use permits. (The staff report and recommended findings for the Planning Commission meeting can be found here.)
The Planning Commission balked, however. According to a legal brief by THDT and the California Renters Legal Advocacy and Education Fund – a document admittedly designed to persuade the court that the city was wrong – several commissioners objected to the project as too big and massive, even though it apparently met the density and bulk guidelines of the BECSP. Two weeks later, on June 11, the Planning Commission turned the project down, relying on a set of findings drafted by the staff saying that the project was not consistent with the BECSP and the city’s general plan. The policies cited were pretty general – for example, the findings said the project was inconsistent with General Plan Policy LU-1D, which says calls on the city to “ensure that new development projects are of compatible proportion, scale and character to complement adjoining uses.” (These findings can be found here.)
At this point, THDT and CaRLA wrote the city to say that the findings were inconsistent with the Housing Accountability Act, which was strengthened in 2017 to require that projects be denied only if, among other things, the denial is accompanied by findings that objective, quantifiable standards had not been met. The city then commissioned studies from two experts, a traffic expert and a fire expert, and used their conclusions to help justify a revised set of findings supporting denial, which the City Council acted upon on in February 18, 2020. The findings prepared for this meeting were substantially the same as before the Planning Commission, except the traffic and fire experts’ conclusions were included as well. In particular, the traffic expert focused on concern that residents of the project would be required to turn right on Ellis (left turns would be prohibited) and therefore would make a U-turn at Beach Boulevard to go in the other direction on Ellis. A “porkchop” design was created at the point of egress from the project to deal with concerns on the part of the city. The City Council also shot down the project.
In her original ruling in August, Judge Servino gave considerable deference to the city and especially to its experts. “The findings identified the applicable provisions of the Fire Department access standards and specifications, goals, and policies of the General Plan and Beach and Edison Corridors specific Plan to which the project was inconcistent, not in compliance, or not in conformity. These findings were based upon the reports of the Traffic Expert Mark Miller and Fire Code/Life Safety Expert James McMullen. As a result, the project did not qualify for HAA protections. [The city] proceeded as required by law. Its decision was supposed by its findings. Substantial evidence supported [the city’s] findings, as the evidence was reasonable in nature, credible, and adequate to support the conclusions.”
In September, however, the First District Court of Appeal issued the first appellate ruling the HAA since it was strengthened in 2017. In another case filed by CaRLA, the appellate court ruled among other things that the design standard San Mateo relied on to deny a project was not objective. In the ruling, the appellater court emphasized two things: First, “the HAA does not prevent local agencies from establishing and enforcing appropriate design review standards” and, second, “the HAA does not bar local agencies from imposing conditions of approval; rather, it prohibits conditions of approval ‘that the project be developed at a lower density,’ unless public health or safety findings are made.”
In her revised ruling on October 4, Judge Servino in Orange County wrote that Huntington Beach “did proceed in the manner required by law,” as interpreted by the First District.
In August, Judge Servino wrote: “The findings identified the applicable provisions of the Fire Department access standards and specifications, goals, and policies of the General Plan and Beach and Edison Corridors specific Plan to which the project was inconsistent, not in compliance, or not in conformity.”
In October, however, she wrote: “The only objective, identified written public health or safety standard [relied upon by the City] was City Specification No. 401 [a standard for fire truck access], which was only as to the alternative porkchop design. Since this safety standard was as to an alternative design, there was a feasible method to mitigate it. THDT investment could simply use the original design.”