A Los Angeles judge has suspended the City of Beverly Hills’ permitting authority because he found the city had not adopted a housing element compliant with state law. However, the Beverly Hills city attorney says the city has appealed the ruling and therefore it will not go into effect while on appeal.

The stakes in Beverly Hills are high, as the city is currently dealing with 13 builder’s remedy applications totalling almost 1,300 units – projects that are likely to move forward with little review if the city’s housing element is deemed non-complaint by appellate courts.

L.A. Superior Court Judge Curtis Kin ruled against the city back in September in a lawsuit brought by Californians For Homeownership, an arm of the California Association of Realtors. But on December 21, Kin suspended all of Beverly Hills’ permitting power, with the exception of home expansions, until the city adopts a housing element he deems compliant with state law.

Lawsuits arguing that local cities have not adopted compliant housing elements have been common in recent years. In fact, Californians For Homeownership has filed 10 such lawsuits in Los Angeles County alone. And one of the main points of dispute has been whether cities and counties can “self-certify” their housing elements or must obtain approval from the California Department of Housing and Community Development. This is a major point of contention in litigation from La Cañada Flintridge, which is poised to be the most important case on this issue. (CP&DR’s previous coverage of the La Cañada Flintridge litigation can be found starting here). HCD rejected Beverly Hills’ housing element for the third time on December 15.

However, Kin is the first judge to exercise the court’s power to suspend a city’s permitting authority because its housing element has been ruled as non-compliant. Courts have this power under Government Code Section 65755, but it has rarely been used. In those few instances where it has been used, it has been in cases brought by anti-poverty lawyers seeking to incorporate more affordable housing requirements – or remove barriers to such housing – in local housing elements. Usually, a Superior Court judge has suspended permitting power temporarily or suspended only parts of the permitting power and the local jurisdiction has subsequently reached a settlement with the anti-poverty lawyers.

But Kin’s decision is far-reaching. It suspends virtually all permitting power until the city adopts a compliant housing element and updated zoning code and gives Beverly Hills 120 days to take those actions.

Beverly Hills City Attorney Lawrence Weiner told the Beverly HIills Courier that the city has appealed the ruling and therefore it will not go into effect. The city continues to argue that it has adopted a compliant housing element. After the December 15 rejection by HCD, Michael Forbes, the city’s community development director, told the Beverly Hills Courier: “The city of Beverly Hills has adopted a sixth cycle Housing Element that is substantially compliant with state law, and we are disappointed that HCD has not yet certified the document,”

The main point of contention on the merits of the case was whether the city had accurately calculated the development potential of sites in the city based on its own development regulations. The city relied heavily on a mixed-use overlay zone, adopted in 2020, that increased allowable residential zoning on many commercial parcels from no residential units permitted to 79 units per acre.

But in his September ruling, Judge Kin questioned the city’s math. He noted that to calculate potential density, the city simply multiplied total parcel size by maximum allowable density, not taking into account any other factors, including allowable height and building footprint. “As a result, for buildings to be converted to mixed use, the housing element does not demonstrate how the number of units indicated in the sites inventory will be accommodated,” he wrote. “Accordingly, the housing element, including the sites inventory, fails to account for the realistic development capacity for the sites listed in the inventory.” As is often the case in housing element lawsuits, there was also the question of whether the sites identified in the housing element would really be in play for redevelopment during the eight-year period of the housing element. Kin questioned whether all the parcels identified by the city would really be ripe for redevelopment during the 2020s. “For example, as petitioner points out in the opening brief, the City purports to have excluded commercial buildings that contained medical uses and car dealerships from the sites inventory,” he wrote. “However, the sites inventory includes medical buildings and car dealerships. The City does not explain how the existing use does not serve as an impediment to residential development.”

CP&DR’s coverage of Judge Kin’s September ruling can be found here. The case is Californians For Homeownership v. City of Beverly Hills, Los Angeles County Superior Court No.23STCP00143. The lawyer for Californians for Homeownershipis Matthew Gelfand, matt@caforhomes.org. The Beverly Hills city attorney is Lawrence Wiener of Richards Watson Gershon, lwiener@rwglaw.com.