Today we received our first–and so far, only–real loss in the courtroom. The good news is that we were correct in asserting that this case strikes at the heart of “local control” in California. The bad news is that the judge upheld the city’s decision to deny a housing development that was allowed under the city’s zoning regulations, even though the city failed to make the findings required by the HAA. The more interesting news is that the judge further concluded (incorrectly) that if the HAA limits local discretion over development permitting, it would violate the California constitution. This is a bold statement. Even more, in order to make this conclusion the judge decided that housing development is not a “matter of statewide concern” despite the extreme housing crises facing the state.
The issues in this case are fairly simple. The San Mateo City Council denied a housing development that had been found compliant with all zoning and general plan standards by both staff and the Planning Commission. In their search for a reason to justify their denial, the City Council turned to San Mateo’s Multi-family Design Guidelines. These guidelines included a “design objective” to:
Avoid changes in building height greater than one story from adjacent structures. If changes are greater, stepback upper floors to ease the transition.
The City Council denied the project by concluding that it failed to comply with this standard, contrary to the conclusions of its own staff and Planning Commission.
The HAA puts limits on cities’ powers to deny projects that comply with all “applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards . . . .” The HAA does not allow for projects to be disapproved based on non-compliance with non-objective standards. Cities can condition approvals to ensure compliance, as long as those conditions do not reduce the overall density of the proposed development.
So we were left with a fairly straightforward two-part question for the court to decide. First: is the design objective cited above an “applicable, objective” standard under the HAA? And if so: did the city have to demonstrate that the development did in fact violate this standard?
We don’t think this type of rule can be considered an objective standard. It is described as a ‘design objective,’ not a rule, and does not set a quantifiable rule, other than to “avoid changes” and “stepback upper floors” (by how much?). The reason that the HAA restricts this type of regulation is that it can too easily be used as a pretext to justify the denial housing developments. Objective standards are written and can be followed easily, subjective standards, on the other hand, are subject to interpretation in their application. If cities are allowed to use these standards to disapprove of housing, they can easily veto developments by reinterpreting the standard at the city council. If the city truly cared so much about a smooth transition between buildings, it could have conditioned approval on some sort of stepback requirement to ensure their vision of compliance with this standard Instead, City Council chose instead to deny the project.
CaRLA filed this lawsuit because the implementation of standards like this one are a potential loophole for HAA compliance. Many cities have some sort of design guidelines such as these that encourage—but do not require—certain development styles. If city councils around the state are allowed to reinterpret these subjective rules to justify denials of projects, they will be able to effectively avoid compliance with the HAA entirely.
The opinion we got last Friday doesn’t shed any light on this issue at all. Instead of engaging with the issue of applying the HAA to the facts of this case, the judge decided to make a statement on the state’s ability to limit local land use decisions. In order to explain, we first have to delve into California’s legal standards for state preemption of local decisions.
In California, charter cities are given special control over their own municipal affairs. The state legislature can’t preempt local laws that regulate matter of strictly local concern. If, on the other hand, the regulation is intended to solve an issue of statewide concern, something that affects people beyond the borders of the city, the state law prevails. Here, the judge somehow looked at California’s housing policy, and decided that local housing approvals were a matter of ‘merely local concern.’ We could not disagree more. California’s housing shortage is a statewide catastrophic failure of local decisions over the last half century, that negatively impacts millions of Californians. Local decisions on housing development have been a major factor in preventing new housing to alleviate the shortage, so each local decision to disapprove of a development adds up to increased rents around the region.
Now we have a choice, do we let this decision stand or do we appeal and keep fighting? As it currently stands, this decision only impacts this particular development, it can’t be cited in other cases. That being said, this issue is not going away. As the state continues to step in to try to solve the state’s housing shortage, cities that want to hold on to their backwards housing policy will challenge the right of the state to interfere. If we are going to successfully reform our statewide housing policy, we need a judiciary that is in touch with the challenges of housing in California today.
CaRLA isn’t just a YIMBY organization; we’re part of a broader pro-housing movement and will be continuing to throw everything we can muster at this human rights issue. This San Mateo ruling takes direct aim at what should be common sense: that housing is a matter of statewide concern. Let this be a loud warning to allied housing organizations statewide that now is the time for a call to arms; 2020 will only bring further escalation of our housing crisis if this ruling stands. Appealing this case is certainly one option we are considering, but we need your support–along with everyone else who believes housing is a human right–to succeed.