In a case with a bunch of unusual twists and turns, a judge in Los Angeles has ruled that Redondo Beach’s housing element is subject to a vote based on an existing growth-management voter requirement. But the judge also ruled that state law pre-empts the local voter requirement.

Ironically, in this case it’s the developer, Leo Pustilniko, who argued that the housing element is subject to the vote requirement – while the city is claiming that this is not the case. And the reason is that if a vote is required, then the city doesn’t have an approved housing element – and Pustilniko can move forward with his controversial builder’s remedy application for to develop the beachfront site of the former AES power plant.

No matter what Pustilniko’s motivation, the case could wind up being important. The developer has said he plans to appeal the decision. If the Court of Appeal affirms Los Angeles Superior Court Judge Ronald Frank’s decision on the vote requirement but overturns him on the pre-emption question, then any city with a vote requirement for major land use changes – there are several dozen in the state -- would have to submit the housing element to the voters for approval and then seek certification from the Department of Housing & Community Development for final approval.

That turn of events would certainly slow down the whole housing element approval process – but it would be a boon to builder’s remedy developers, whose applications can move forward only in cities where the housing element has not been approved.

Pustilniko, who also has several builder’s remedy applications pending in Beverly Hills, has been in a lengthy battle with Redondo Beach over development of the site. He’s proposed 2,700 units while the city would prefer a park. Redondo Beach has also been a center of resistance against the state’s plethora of land use laws requiring local governments to plan for more housing; Mayor William Brand was one of the chief co-sponsors of a failed attempt to place a measure on the ballot returning more control to local governments.

In 2022, Pustilniko filed a lawsuit against the City, claiming his builder’s remedy application should be honored even though he filed the application after the city approved its housing element. (More CP&DR coverage of the original lawsuit can be found here.) Yimby Law also filed a lawsuit, as is often the case in these situations.

Echoing several other lawsuits and arguments around the state, Pustilniko argued that the housing element could not be considered complaint until the HCD approved it, which did not happen until after he filed his application.

During the course of the litigation, however, Pustilniko also argued that the housing element has not been approved by the city because it has not been approved by the voters. The city’s Measure DD, which voters approved in 2008, is a classic “subsequent voter approval” growth management measure. Measure DD amended the Redondo Beach city charter to require voter approval for “major land use changes”. Pustilniko claimed the city council should have placed the housing element on the ballot because it includes major land use changes and because that did not happen his builder’s remedy application should move forward. The city argued that the housing element is not a zone change and therefore is not subject to Measure DD.

Judge Frank disagreed. “The Court disagrees with City's contention that the Housing Element is merely a policy document. Here, the Housing Element designates dozens of sites, most of which are currently zoned for industrial or commercial uses, for residential use at densities of up to 55 du/ac, in order to facilitate the development of hundreds of new residential units,” he wrote. He added: so long as the proposed sites are identified as suitable or available for very low, low- , or moderate-income households, the likelihood the proposed land use will become an actual change in the land use is quite high. This indicates to the Court that the City's Housing Element is more akin to an actual change in land use than it is a potential change in land use.”

But Judge Frank also found Measure DD to be in direct conflict with state housing element law. He further found that state law pre-empts Measure DD b’ecause the legislature has found affordable housing to be a matter of statewide concern. Measure DD may bar Redondo Beach from complying with state law so long if City voters continue to vote against substantial changes in affordable housing uses in the city,” he wrote.

He added: “Over the past fifty (50) years, numerous case decisions have upheld statewide housing and land-use statutes and regulations as overriding conflicting charter-city local measures like Measure DD, notwithstanding the home-rule doctrine.”

Links to all previous CP&DR coverage of Redondo Beach and the AES property can be found here.

The Case:

New Commune DTLA, LLC v. City of Redondo Beach, Los Angeles Superior Court No. 22TRCP00203 (filed October 30, 2023)

The Lawyers:

For New Commune (Pustilnikov): Douglas J. Dennington, Rutan & Tucker, ddennington@rutan.com

For City of Redondo Beach: Lisa Bond, Richard, Watson & Gershon, lbond@rwglaw.com