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40 Main Street Offices LLC v City of Los Altos 19CV349845 from Cupertino of AllFiled April 27, 2020 County of Santa Clara Superior Court of CA Clerk of the Court 19CV349845 By: atheoharis \oooq'o‘m.nwm._‘ NNNNNMNNNb—IHr—Ii—Hp—AHHHt—I WQONMAWNF-‘OKOW‘JQM-PWN—‘o SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 40 MAIN STREET OFFICES,LLC, Petitioner, vs. CITY OF LOS ALTOS,ct al., Respondents. CALIFORNIA RENTERS LEGAL ADVOCACY &EDUCATION FUND,et al., Petitioners, vs'. CITY OF LOS ALTOS,et al., Respondents. Case No.19CV349845 (Lead case, consol.with Case No.19CV350422) ORDER GRANTING CONSOLIDATED PETITIONS FOR WRIT OF MANDATE ORDER 9N SUBMITTED MATTER These consolidated petitions for writ 0f mandate came on for hearing before the Honorable Helen E.Williams on January 15,2020,at 9:00 am.in Department 1 0 of the court Daniel R.Golub and Genna Yarkin of Holland &Knight appeared for petitioner 40 Main Street Offices,LLC (Developer);Emily L.Brough of Zacks,Freedman &Patterson appeared for ORDER GRANTING PETITIONS FOR WRIT 0F MANDATE b.) O‘OOO‘JOUW_D. 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 petitioners California Renters Legal Advocacy &Education Fund,San Francisco Bay Area Renters Federation,Victoria Fierce,and Sonja Trauss (collectively,Renters);Arthur J.Friedman 0f Sheppard Mullin Richter &Hampton LLP appeared for respondents the City 0f Los Altos,the City 0f Los Altos City Council,and the City 0f L03 Altos Community Development Department (collectively,the City).The matter having been argued and submitted after the filing 0f post- hearing supplemental briefing,no party having requested a statement 0f decision under Code 0f Civil Procedure section 632 and rule 3.1 590 0f the California Rules 0f Court in this hearing lasting less than eight hours,and the Court having carefully considered the pleadings,the papers filed by the parties,the matters 0f which tha Court takes judicial notice,the record received into evidence,the arguments 0f counsel,and the applicable law,Court finds and orders as follows: I.Statement offhe Case The lead case 0f these two consolidated actions is one for relief in mandate brought under Code 0f Civil Procedure sections 1085 and 1094.5 (first~third causes 0f action),as well as for declaratory relief (fourth cause 0f action).It is brought by Developer against the City.Deveioper has been trying t0 develop a mixed—use building in downtown Los Altos for many years,having previously submitted multiple proposals all subject t0 discretionary review by the City. Developer primarily alleges in its petition that the City unlawfully rejectad its latest proposal submitted under new,streamlined procedures established by Senate Bill 35 (Govt.Code, §65913.4,hereafter section 65913.4 or SB 35;further unspecified statutmy references are t0 the Govt.Code),remedial legislation enacted t0 promote the construction 0f housing within California.Developer further alleges that in rejecting the proposal,the City also violated the state Density Bonus Law (§65915)and the Housing Accountability Act (§65589.5),the provisions 0f both 0f which may be invoked,as they were here,in a development application submitted under SB 35. Renters separately filed their petition challenging the City’s course 0f conduct with respect t0 Developers’proposed project (Case N0.19CV350422).They allege their own direct and beneficial interests having been harmed in the City’s denial 0f Developer’s application for streamlined approval.This separate action against the City,commenced 0116 day before 2 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE 4:. OOONQKJI 10 11 12 13 14 15 16 17 18 19 21 22 23 24 26 27 28 Developer’s action,has since been consolidated With Developer’s action.Renters’petition in mandate is also brought under Code 0f Civil Procedure sections 1085 and 1094.5,and seeks relief in the first cause 0f action for the City’s alleged violations 0f SB 35 and the Housing Accountability Act.The second cause 0f action is for declaratory relief.Thus,Developer’s and Renters’claims for relief against the City essentially overlap. A.Summary QfAdmz'm'strative Record 1.Developer Appliesfor Streamlined Review On November 8,201 8,Developer applied for permission t0 construct a mixed-use building with office space 0n the ground floor and residential units 0n the floors above at 40 Main Street in downtown L03 Altos.(AROOOOOI—AR000126 [application].)On the application cover sheet—a City form entitled “City 0f Los Altos General Applicati011”—~ Developer checked boxes indicating that the “type ofreview requested”was “C0mmercial/Multi—Family"and “Use Permit.”(AR000004.)The City had n0 other application form cover sheet specific t0 a streamlined SB 35 application.In Developer’s application,it stated that it sought and qualified for streamlined review 0f its proposed development under SB 35. (AR000006—AR000017.)Developer’s application included a project summary,a discussion 0f and chart detailing the proposed development’s compliance with obj ective standards,renderings, blueprints,proposed landscaping,a preliminary plan t0 manage construction,and a title report. (AR000006flAR000 126.) 2.The City’s Initial Response 011 December 7,201 8,the Cityu—acting through Community Development Director Joe Biggsw—sent Developer correspondence in which it expressed its refusal t0 conduct either a further streamlined 0r standard,discretionary review.(AR000127—AR000149.)The correspondence reflects that the City appeared t0 treat Developer’s single development application as two distinct “applications submitted 0n November 8,201 8”—0ne for streamlined review under SB 35 and one for standard,discretionary review—whjch perceived dual applications pulportedly could not be concurrently processed.{AR000129,AR000127.)111 this 3 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE OONQL/‘I DJ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regard,the City said,“this application results in two applications that have been submitted for this site.One 0r the other 0f the projects must be Withdrawn.”(AR000127.) As for the City’s direct response t0 the application for streamlined revieW—a letter that contained within its subject line the reference “SB 35 Determination”and which letter specifically referenced SB 35—the City stated that it had conducted a review,made a decision, and determined that the proposed development did not qualify for streamlined review under section 65913.4.The letter enumerated two reasons for the City’s denial decision.First,“the proj ect does not provide the percentage 0f affordable dwelling units required by the State regulations.”(AR000127.)The City cited section 65913.4,subdivisions (a)(4)(A)and (B)(ii)and a document prepared by California’s Department 0f Housing and Community Development (HCD).(AR000127.)The HCD report lists Los Altos as a municipality in which streamlining applications can be submitted for proposed developments with “Z 50%affordability”due t0 the failure t0 meet the [Regional Housing Needs Allocation 0r Assessment (RHNA),per §65580 et seq.]for 10w income households as compared t0 the “2 10%affordability”threshold for streamlining applicable t0 municipalities that missed their targets for both 10W and moderate income households.(AROOOI 27,citing HCD Determination Summary (Jan.3 1 ,201 8) <h11pszl/Www.hcd.ca.gov/community—development/housing- element/docs/SB35_StatewideDeterminationSummaryO1 31201 8.pdf>[as 0f Mar.2,2020].) Second,the City cited section 65913.4,subdivision (a)(5)—the provision 0f SB 35 requiring consistency with obj ective zoning standards and objective design review Standardsl—and stated that the project lacked “the required number 0f off—Street residential and Visitor parking spaces” 1 Under section 65913.4,subdivision (a)(S): “‘objective zoning standards’and ‘objective design review standards’mean standards that involve 110 personal or subj ectivejudgment by a public official and are uniformly verifiable by reference t0 an external and unifonn benchmark 01 criterion available and knowable by both the development applicant 01‘proponent and the public official before submittal.These standards may be embodied in alternative Objective land use specifications adopted by a city 01‘county,and may include,but are not limited t0,housing overlay zones,specific plans,inclusionary zoning ordinances,and density bonus ordinances .” 4 ORDER GRANTFNG PETITIONS FOR WRIT OF MANDATE Lh-P-LAN \OOOQG 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and “adequate access/egress t0 the proposed off-street parking.”(AR000127.)The City did not identify what these parking standards were 01‘Where they could be located. The letter concluded by saying,“If you elect t0 pursue other approval/permit avenues for the proj ect that is the subject 0f this notice,the applications,fees,deposits,studies,and information contained in the attached Notice 0f Incomplete Application are required t0 continue an evaluation 0f the proj ect.”(AROOOIZS,italics added.)The letter did not say that Developer’s submitted SB 35 application was perceived t0 be incomplete,01‘suggest that the City’s further review 0f Developer’s SB 35 application was conditioned 0n receipt of additional specified materials 0r information.Rather,the letter denied that application for the reasons stated. As for the pulported discretionary application,the City declined t0 review it 0n the asserted basis that it was “incomplete.”(AR000128.)The City’s letter,titled “Notice 0f Incomplete Application”and Which omitted SB 35 in the subject line,listed 24 items that Developer needed t0 submit before the City would treat the application as complete and consider it 0n its merits.(AR000129—AR0001 32.)For example,the City asserted that Developer had not submitted complete documentation t0 substantiate its density~b0nus request.(AR000148.)The City indicated that the additional materials had t0 be provided within 180 dayswby June 6, 2019—0r the application would be deemed expired.(AR000129.) 3.Developer Responds On January 10,2019,Developer wrote t0 the City t0 point out perceived errors in the City’s correspondence rej ecting the application for streamlined review under SB 35. (AROOOI 50—AR000166.)Developer argued that the City’s stated reasons for its decision were facially inadequate and substantively incorrect.(AROOOIS 1 .)Deyeloper stated that because the City had not “validly”identified a conflict with applicable statutory objective standards and could n0 longer do so within the statutory SB 35 statutory timeframe,the project was deemed t0 comply and therefore qualified for streamlined review and permitting.(AROOOI 5 1 .) r 111 support,as for the City’s first stated basis for denial,Developer explained that the City had improperly relied 0n an outdated HCD determination 0f the municipalities subject t0 streamlining.(AROOOIS 1 .)Developer pointed out that whils the City had relied 0n a January 5 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE Lush.) \OOO~40\M 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 :26 27 28 2018 determination,HCD had updated its determination in June 20]8.(AROOOIS 1 .)The June 2018 determination said that the City’s threshold for streamlining is the more inclusive,10 percent threshold.(AROOOIS 1,AR000161 .)On this basis,Developer asserted that the City had erroneously determined that it was only subj ect t0 the streamlining process for proj ects with 50 percent as compared t0 10 percent affordability.(AROOOI 5 l—AROOOISZ.) Next,as for the City’s second stated reason for the denialwinsufficient parking spaces and “adequate access/egress t0 the proposed off-street parking”—Developer asserted that the City had failed t0 identify the obj active standards with which the project conflicted;relied in pan 0n a subjective,discretionary standard;and was otherwise incorrect.(AROOOI 52—AR000154.) Developer elaborated that n0 standard addressing ingress and egress from the parking area was identified in the City’s decision and that the adequacy 0f ingress and egress was not an objective standard that could be evaluated in the course 0f streamlined review.(AROOOI 54.)Developer also pointed out that section 65913.4,subdivision (d)(2)prohibited the City from requiring more than one parking space per unit 0f housing.(AROOOl 53.)According t0 Developer,it had proposed more than adequate parking because it planned t6 develop 18 parking Spaces for only 15 units 0f housing and was not required t0 develop additional parking for the offices due t0 the City’s public parking district.(AROOOI 53~AR000154;AR000166 [architect statement 0n parking compliance,including ADA].) Developer also asserted that the City had not made the requisite findings for having rejected the project under section 65589.5,the Housing Accountability Act.(AR000155.)Then, Developer remarked that,based 0n the City’s own representations in the incomplete notice,that notice was immaterial t0 the application for streamlined review and the points it contained solely concerned issues that might be addressed in a standard,discretionary review process. (AR000156wAR0001 57.)Developer concluded by asserting its expectation that any streamlined public oversight must be completed by February 6,2019,in accordance with the section 65589.5 90-day deadline. 6 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOO‘QGNthUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.The City Srands [Is Ground On February 6,2019,the City responded t0 Developer’s letter.(AR000168—AR000172.) Th6 City asserted that it had correctly determined that the project was inconsistent With the streamlining criteria while simultaneously asserting that the application for streamlined review did not have sufficient information t0 allow the City to fully evaluate the criteria in section 65913.4.(AR000168.)The City then stated that it “finds and determines that the Project is not eligiblefor issuance ofa Streamlined ministerialpermit.”(AR000169.)The City agreed t0 consider any request that would “enable a determination offlze Project ’s SB 35 eligibility 0r otherwise process the Application ifand when”additional information was provided. (AROUOl 69.) Next,the City responded t0 some 0f the specific points raised by Developer. (AR000169.)The City conceded the error in its earlier,first-stated reason for having denied the streamlining application;it acknowledged that under the correct and Operative determination from HCD,the affordability threshold for streamlining was 10 percent,not 50 percent. (AROOOI 69.)As for the City’s earlier second—Stated reason for having rejected the streamlining application,the City turned t0 the notice 0f incomplete application instead 0f the denial letter. (AR000169.)The City concluded that notes 18 and 19 in that notice 0f incomplete application were sufficient t0 apprise Developer 0f the problem with its proposal and the inability 0f the City t0 evaluate the proposed parking?(AR000169~AR000170.) Finally,the City said that because the streamlining application was incomplete,the City was not required t0 comply with the Housing Accountability Act and also had properly rejected the application based 0n its inability t0 evaluate the project’s eligibility for a density bonus. (AR000170.) 2 Notes 18 and 19 d0 not identify any objective standard 01‘clear inconsistency with such a standard in any event.(AR00013 1 .)Note 18 states that two parking spaces will be affected by the driveway.'(AR00013 1 .)Note 19 states that parking circulation is “inadequate”and questions where cars would wait to enter the underground parking garage.(AR00013 1 ._) 7 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOoxJOer-hww...‘ NNNNNNMNNHr—AHHr—Ar—LHHu—n—n W‘Jam-bUJMI—‘OKDOONOLh-PWNHO 5.Developer States Intent t0 Pursue Legal Action On February 19,2019,Developer countered the City’s response in a letter documenting the problems with and inconsistencies between the City’s initial action 0n December 7,201 8, and how it had attempted t0 recharacterize that action in the February 6th letter.(AR000172~ AROOOI 82.)Developer recounted the history 0f its attempts t0 develop the proj ect through the discretionary review process since 2013 and the purpose 0f section 65913.4,emphasizing the ways in which the statute was designed t0 remedy precisely the type 0f agency conduct at issue here.(AROOOI 75—AR000176.)Developer also addressed the specific legal issues raised in the parties’preceding correspondence.(AROOO 1 77—AR0001 8 1 .) In concluding,Developer observed that the City appeared t0 be unwilling to follow the law 01‘work with Developer 0n approving the SB 35 proposal,leaving it with 110 option other Vthan legal action.(AR000181 .)Developer said that it did not appear there was any available administrative remedy,such as an appeal,t0 be exhausted before commencing suit.(AR000181 .) Nevertheless,Developer indicated that it had submitted a claim3 t0 the City Clerk under the Government Claims Act (§900 et seq.)out 0f an abundance 0f caution and invited the City t0 advise if it concluded that some applicable administrative procedure,in fact,existed that Developer Should pursue before initiating legal action.(AROOOI 8 1 .)Developer offered that it remained open t0 discussing alternatives t0 litigation but otherwise intended t0 file suit within 90 days Ofthe City’s February 6th letter.(AROOOl 8 1 .) 6.Developer Administratively Appeals On February 21,2019,the City informed Developer by email and through written delivery Ofthe same that its SB 35 denial was subject t0 an administrative appeal.(AR001203— AR001206.)The City insisted an administrative appeal was required despite acknowledging that Los Altos Municipal Code section 1.12.020,entitled “N0 appeal from ministerial acts,”provides that appeal procedures d0 not apply when an act or decision is ministerial.The City informed Develo er that if it wished t0 “challen e the Cit ’s decision 0n this matter,an a peal must bePgyP 3 Developer’s claim appears in the record at AR001201—AR001202. 8 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE OWOOHJQU‘ILL’JMH b.) N [Q N N N [\_) N N )—L r—I r—I- r—t b—A s—A p— b—t H >—A 00 ‘5] C\ LJI -I> DJ [\J *—* O \D 00 NJ a L11 vb L») [\3 >—‘ filed by no later than fifteen calendar (l 5)days from the date 0f the [February-6]letter,by th_e close 0f business 4:30 pm 0n THURSDAY FEBRUARY 21,201 9.”(AR001205.)The City provided Developer with the mandatory application form for the appeal and stated that “[flailure t0 timely appeal will preclude you,01‘any interested party,from challenging the City’s decision in coun.”(AR001205—AR001207.) In other words,the City gave Developer less than eight hours’notice 0f its interpretation 0f the Los Altos Municipal Code and position that an administrative appeal was required. That same day,Developer submitted its appeal form along with a statement 0f the grounds for its appeal and the record 0n which it was relying (including the correspondence summarized above).4 (AR001208—AR001210.)In the weeks that followed,Developer frequently corresponded with the City in an effort t0 ascertain what the process for the appeal would be and when it would be heard.(AR0013 1 1—AR001328.) On March 26,201 9,the City noticed the appeal for a public hearing before the City Council t0 be held 011 April 9,2019.5 (AR001216.)In correspondence from counsel for the City to Developer the week before the hearing,it was asserted that the appeal was required because the decision that the project was not eligible for streamlined review was not a ministerial act. (ARGO 1 306.)Counsel went 0n t0 assem that April 9th was the earliest available time that the 4 In Developer’s cover letter for its appeal,it maintained that it did not believe there was an avenue for appeal 0f a ministerial decision but was submitting the appeal t0 avoid any dispute. (AR00121 0.) 5 The City noticed this appeal for public hearing based 0n a staff repofi and recommendation from counsel.(AR001238—AR001252 [staff report];AR001253—AR001257 [presentation from Best Best &Krieger LLP].)The staff report delves into new substantive issues 011 the SB 35 proposal,such as whether the project satisfies the two-thirds residential-use requirement,that were not raised in the City’s December 7,20]8 denial letter.(AR001242;see also AR001260 [summarizing staff”s reasons for denial that are purportedly the subj ect 0f the appeal].)This seems t0 be because the City was advised that in determining the appeal,it would conduct a de novo review 0f whether the project in fact complied with section 65913.4,instead 0f ascertaining whether the initial denial had bean insufficient 0r invalid such that the application was deemed approved under SB 35.(AR001255.)Developer responded t0 thesa new points in correspondence sent in connection with the appeal.(AR001284—AR00 1 300.) 9 -ORDER GRANTING PETITIONS FOR WRIT OF MANDATE [\J OOHJQU’l-bm ._| OKO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 appeal could be heard based 0n the City Council’s schedule and existing obligations. (AROOI 308.)Counsel also maintained without explanation that the appeal was subj ect t0 a public hearing,but that Developer would be allowed t0 present its case as well.(AR001309.) On April 9th,Developer presented its appeal t0 the City Council,which also heard public commenté 011 the matter (including comments from Renters to the effect that the project was deemed approved for streamlined permitting).(AR00123 1—AR001237;AROOI 928—AR002047 [hearing transcript].)On April 23,201 9,the City,acting through its City Council,denied the appeal and did so by resolution.(AR002056—AR002078 [City Council minutes,report,and resolution].) B.Summary ofA Ziegations and Proceedings Renters and Developer (collectively,petitioners)commenced their respective actions 0n June 12 and 13,2019.Their hybrid petitions for writ 0f mandate and complaints for declaratory relief essentially raise the same claims.They allege that in proceeding as described above in the summary 0f the administrative record,the City unlawfully denied Developer’s proposal in Violation 0f the streamlining statute (SB 35),the Housing Accountability Act (§65589.5),and the Density Bonus Law (§6591 5).Based 0n these allegations,petitioners seek writs 0f mandate under either Code of Civil Procedure section 1085 0r section 1094.5,compelling the City t0 approve Developer’s streamlined application.They also seek a judicial declaration 0f their entitlement to that approval under Code OfCiVil Procedure section 1060,along with injunctive relie'f.7 The City separately answered both petitions. On August 28,2019,the Court consolidated the petitions for all purposes,and designated Developer’s action as the lead case.The City then lodged the administrative record with the Court.And,0n October 21,2019,the City lodged a supplement.Petitioners filed a joint opening brief,accompanied by a request for judicial notice,0n November I,201 9.The City opposed the 6 Public comments can be located in the record along with other hearing materials. (AR001333~AR001351,AR001907—AR001922,AR001924—AR001926.) 7 Although Renters and Developer organized the causes 0f action in their petitions differently,they seek the same types 0f relief 0n the same factual and legal bases. 1 0 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE lg.) \OOON-JONkh—h 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 petition 011 December 6,201 9,and presented the declaration 0f Jon Biggs,the City’s Director 0f Community Development.Petitioners then filed a joint reply and request for judicial notice before the hearing scheduled for January 15,2020.The hearing went forward as scheduled. Upon receipt 0f post-hearing supplemental briefing ordered by the Court,the matter was submitted. H.Petitioners ’ Requests for Judicial Notice PetitiOners jointly request judicial notice 0f portions 0f the Los Altos Municipal Code (RJN Ex.K)as well as legislative history materials,namely digests,reports,floor analyses,and amendmentsrto section 65913.4 (RJN Exs.A—J).With their reply,they seek judicial notice of correspondednce from HCD in response t0 their request for assistance.(See Golub Decl.,Ex.1.) For the reasons that follow,petitioners’requests are granted. A court may take judicial notice 0f municipal law.(Evid.Code,§452,subd.(b);The Kennedy Com.v.City QfHLtnIingron Beach (2017)16 Cal.App.5th 841,852 (Kennedy).)Thus, the Court takes judicial notice 0f the Los Altos Municipal Code. Next,a court may consider legislative history materials as an interpretative aid,but the means 0f consideration and weight ascribed t0 these kinds 0f materials vary.(Cf.People v.Cruz (1996)13 Cal.4th 764,773,fn.5 (Cruz)with Cummins,Inc.v.Super.Ct.(2005)36 Cal.4th 478, 492,fn.11.)As for the text 0f enacted legislation (Assembly Bill 101 and Assembly Bill 1485), including a redline version showing section 65913.4 as amended and in force today,(RJN Exs.C,G—H),the Court takes judicial notice undcr Evidence Code section 452.While the California Supreme Court has relied 0n precedent 1'0 take judicial notice 0f other legislative history materials,such as committee reports and bill analyses,some dissenters have aptly observed that such materials d0 not clearly fall within any enumerated category 0f Evidence Code sections 451 and 452.(Cruz,supra,13 Cal.4th at p.794 (dis.0pm.0f Anderson,J.).) Accordingly,here,the legislative reports and analyses are not subject t0 judicial notice under the Evidence Code.Nevsfiheless,precedent allows the Court t0 consider these reports and analyses and t0 ascribe t0 them an appropriate weight in light 0f their authorship and function within the legislative process. 11 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE .bbJN ‘OOOxJQm 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 Finally,“[w]here the meaning and legal effect 0f a statute is the issue,an agency’s interpretation is one among several tools available t0 the court.”(Yamaha Corp.ofAmerz'ca v. Stare Bd.ququalizarion (1998)19 Cal.4th 1,7 (Yamaha).)“An agency interpretation 0fthe meaning and legal effect 0f a statute is entitled t0 consideration and respect by the courts; however,unlike quasi—legislative regulations adopted by an agency t0 which the Legislature has confided the power t0 ‘make law,’and which,if authorized by the enabling legislation,bind this and other courts as firmly as statutes themselves,the binding power 0f an agency’s interpretation 0f a statute or regulation is contextual:Its power t0 persuade is both circumstantial and dependent 0n the presence 0r absence 0f factors that support the merit 0f the interpretation.” (12ml)A formal opinion letter 01‘informal correspondence expressing the position 0f the agency may be presented to a court for consideration under Yamaha by way 0f a request for judicial notice under Evidence Code section 452,subdivision (c).(See generally Field v.Bowen (201 1) 199 Cal.App.4th 346,370,fn.5 [agency-prepared documents come within Evid.Code,452, subd.(c);see,e.g.,Linda Vista Village San Diego HO,A.,Inc.v.Tecolote Investors,LLC (2015) 234 Cal.App.4th 166,186.)Consequently,the Court takes judicial notice 0f HCD’S letter t0 petitioners. [I],Discussion The Court must answer two central questions t0 resolve the petitions.First,did petitioners timely commence their respective actions?Second,d0 petitioners establish that they are entitled t0 reliefon the merits?The answer t0 both questions is yes.8 8 AS noted,both petitions are brought under Code of Civil Procedure sections 1085, traditional mandate,and 1094.5,administrative mandate,without specification ofwhich form 0f mandate may apply t0 all 0r each 0f the discrete causes 0f action.Likewise,the City takes no position 0n this question.Each 0f these statutes,by its terms and as discussed in case law, typically applies in different,specified circumstances 0r settings.And each typically invokes judicial review through its own nuanced lens 01'standard.AS SB 35 involves an agency’s ministerial duty t0 approve a qualifying development proposal and n0 administrative 0r public hearing is contemplated,judicial review 0f an agency’s decision to rej ect a project for streamlined review and permitting under SB 35 is more likely in traditional mandate under Code of Civil Procedure section 1085.But here,ths City insisted that an administrative appeal t0 the City Council heard through the vehicle 0f a public hearing was required,Which typically leads t0 judicial review in administrative mandate under Code ofCiVil Procedure section 1094.5.And the 12 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOOQONL/I-PUJNH [\J [\J [\J [x3 [\J N N [\) tx.) p—t H 1-— u—I )— )—s p—n H r—I t—t 00 \I ON UI -h- L») [\3 t—i O \O 00 5.] O\ (J! -h U) [\J *—'- O A.The Action Is Nor Time—Barred The City’s primary opposing argument is that petitioners failed t0 timely file and serve their respective petitions within the 90-day limitations period set forth in section 65009.In advancing this argument,the City asserts that it is not estopped from raising this defense based 0n its insistence that Developer exhaust its administrative remedies by appealing t0 the City Council (0r,implicitly,that Renters so exhaust by their participation in this same administrative process)before bringing this action.Petitioners argue both assertions are incorrect.And,in supplemental briefing,petitioners contend and the City disputes whether the statute-of~ limitations defense is further overcome by the doctrine 0f equitable tolling.For the following reasons,the Coufi rejects the City’s defense. As a threshold matter,the City argues that the Court should assess the “gravamen”0f the claims and subject all 0f them t0 the 90-day limitations period in section 65009,subdivision (c)(1)(E).Petitioners take issue with this approach.(RT at p.25.)And the Court perceives the City’s treatment 0f all the claims collectively based 0n their assessed “gravamen”t0 be imprecise and problematic. “[A]plaintiff is generally pennitted t0 allege different causes 0f action—with different statutes 0f limitations-up0n the same underlying facts.”(Thomson v.Canyon (201 1) Housing Accountability Act,which a development proposal submitted under SB 35 may invoke, specifically references judicial review in administrative mandate under Code 0f Civil Procedure section 1094.5.(§65589.5,subd.(111).)Further,courts haVe reviewed a challenge t0 an agency’s decision under the Density Bonus Law likewise through administrative mandate.(See,e.g. §65915,subd.(d)(3);Friends ofLagoon Valley v.City 0f Vacaville (2007)154 Cal.App.4th 807, 8 12,816—817 (Lagoon Valley).)The parties appear t0 proceed here 0n the assumption that because the overarching relief in mandate sought by petitioners is deemed approval 0f the development proposal under SB 35,relief under the HousingAccountability Act and the Density Bonus Law is subsumed within that.In any event,both forms 0f mandate ultimately review for 21nd address an agency’s abuse 0f discretion,which would include a failure t0 perform a duty compelled by law 0r a failure t0 proceed in a manner required by law—the fundamental essence 0f all the claims here.Because of this,and because the particular form 0f mandate that is applicable is not articulated or disputed by the parties,the Court proceeds t0 conduct itsjudicial review and t0 adj udicate the action focused on abuse 0f discretion as SO framed and without specifically deciding whether the ultimate relief afforded comes through Code 0f Civil Procedure ssction 1085 0r section 1094.5. 13 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE #MM KOGOflO‘xU] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 198 Cal.App.4th 594,605 (Thomson).)“A complaint may allege facts involving several distinct types 0f harm governed by different statutory periods and,where it does SO,one cause 0f action may survive even if another cause 0f action with a shorter limitations period is barred.”(Ibid) But in doing so,“a plaintiff is not permitted t0 evade a statute 0f limitations by artful pleading that labels a cause 0f action one thing while actually stating another.”(Id.at p.606.)“California courts therefore 100k to the gravamen 0f the cause 0f action.”(Ibid) “‘[T]he nature 0f the right sued upon and not the form 0f action nor the relief demanded determines the applicability 0f the statute 0f limitations under our code.’[Citati0n.]”(Hensler v.City ofGlendale (1994)8 Cal.4th 1,22—23.) Here,as is permissible,petitioners allege that one set 0f facts gives rise t0 multiple claims for relief based 0n different statutes.And,in pleading these distinct theories,petitioners d0 not attempt t0 artfully mislabel their claims t0 evade the statute 0f limitations.They assert that they are independently entitled t0 relief 0n all 0f the pleaded bases.Consequently,contrary t0 how the City proceeds,this is not a scenario in which it is necessary t0 drill down t0 the gravamen 0f each claim t0 uncover its true nature.And the City’s suggestion that the gravamen ofeach independent claim is relief under section 65913.4 is not quite accurate.It follows that the City errs in addressing all 0f the claims collectively as though they are necessarily subject t0 one statute 0f limitatibns in licu 0f establishing the limitations period applicable t0 each claim pleaded.9 T0 illustrate,the Housing Accountability Act contains its own 90-day statute 0f limitations.(§65889.5,subd.(ml)This limitations period runs “from the later 0f (1)the effective date 0f a decision 0f the local agency imposing conditions 0n,disapproving,0r any other final action 0n a housing development project 0r (2)the expiration 0f the time pariods 9 To be clear,the City does not argue that each distinct claim incidentally happens t0 be subject t0 the same statute 0f limitations.Rather,the City asks the Court t0 treat the different claims as identical and,0n that basis,t0 apply 0116 statute 0f limitations t0 all claims. 14 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE m-bmlv OGOONQ specified in subparagraph (B)ofparagraph (5)0f subdivision (11).”10 (§65589.5,subd.(m), citing §65950 [Permit Streamlining Act].)This particular statute of limitations applies t0 causes 0f action based 0n the Housing Accountability Act. Next,the Legislature enacted section 65009 because it found “there currently is a housing crisis in California and it is essential t0 reduce delays and restraints upon expeditiously completing housing projects.”(§65009,subd.(a)(l).)The statute “is intended ‘to provide certainty for property owners and local governments regarding decisions made pursuant t0 this division”(§65009,subd.(a)(3))and thus t0 alleviate the ‘chilling effect 011 the confidence with which property owners and local governments can proceed with projects’(id,subd.(50(2)) created by potential legal challenges t0 local planning and zoning decisions.”(Travis v.County QfSanta Cruz (2004)33 Ca1.4th 757,765.)“T0 this end,section 65009 establishes a short statute 0f limitations,9O days,applicable t0 actions challenging several types 0f local planning and zoning decisions .”(Ibid) The City relies 0n the 90-day limitations period in section 65009 based 0n language in subdivision (c)(])(E),Which provides that it applies when a petitioner seeks “[t]0 attack,review, set aside,void,01‘annul any decision 011 the matters listed in Sections 65901 [a l]and 65903[12],0r t0 determine the reasonableness,legality,0r validity 0f any condition attached t0 a variance, conditional use permit,or any other petmit.”Based 011 the contents 0f sections 65901 and 65903—section 65009,subdivision (c)(1)(E)is best summarized as applying when a petitioner 10 Section 65889.5,as effective January 1,2020,contains an outdated reference t0 subparagraph (B)0f former paragraph (5)0f subdivision (h)that cites t0 time standards in section 65950 (the Permit Streamlining Act).Subparagraph (B)and the time standards thsrein are now codified in paragraph (6)0f subdivision (h),not paragraph (5),but the Legislature failed t0 conform the reference in subdivision (m)upon making this amendment t0 subdivision (h), which is clearly the result 0f oversight. '1 Section 65901 governs hearings 0n “conditional uses 01‘other permits”as well as zoning variances. 12 Section 65903 governs appeals 0f a decision 0f the board 0f zoning adjustment 0r zoning administrator. 15 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE oxoooxqovmgwm NNNNNNNNMP—Ih—HF—t—nr—Hp—nr—I—n OOflCNM-D-UJNHOQOONJONMLWNH challenges (1)the underlying decision 0f the board 0f zoning adjustment 01‘zoning administrator 0n a conditional use permit,other permit,01‘zoning variance;(2)the outcome 0f an appeal 0f such a decision;01'(3)the particular terms 0f a conditional use permit,other permit,01'variance (as compared t0 the ultimate decision t0 issue 0r refuse t0 issue the permit 01‘variance).(See generally Save Lafayette Trees v.City ofLafayelTe (2019)32 Ca1.App.5th 148,155—159 [discussing scope and construction 0f section 65009].) Petitioners argue that,if anything,the 180—day period in subdivision (d)(1)0f section 65009 applies because this action meets both 0f the criteria specified therein,namely: “(A)It is brought in suppon 0f 01‘t0 encourage 0r facilitate the development 0f housing that would increase the community’s supply of housing affordable t0 persons and families With 10W 01' moderate inComes,as defined in Section 50079.5 0f the Health and Safety Code,0r With very 10w incomes,as defined in Section 50105 0f the Health and Safety Code,0r middle-income households,as defined in Section 65008 0fthis code.This subdivision is not intended t0 require that the action 0r proceeding be brought in support 0f 0r t0 encourage 01‘facilitate a specific housing development project. “(B)It is brought with respect t0 the adoption 01’revision of a housing element pursuant t0 Article 10.6 (commencing with Section 65580)0f Chapter 3,actions taken pursuant t0 Section 65863.6,0r Chapter 4.2 (commencing with Section 65913),01't0 challenge the adequacy 0f [a density bonus]ordinance adopted pursuant t0 Section 65915. Petitioners”interpretation 0f section 65009,subdivision (d)(1)is not entirely persuasive. While the project does seem to encourage housing development within the meaning of section 65009,subdivision (d)(I)(A),it is not especially clear that this proceeding is brought with respect t0 “actions taken pursuant t0 Section 65863.6,0r Chapter 4.2 (commencing With Section 65913)”within the meaning 0f section 65009,subdivision (d)(1)(B).This is because this latter subdivision focuses 011 challenges t0 legislative actions as compared t0 ministerial 01' adjudicatory permitting decisions.The legislative actions enumerated i11 section 65009, subdivision (d)(1)(B)include the adoption 0r revision 0f a housing element,adoption 0f a zoning ordinance,and the adoption 0f a density bonus ordinance.(See Calvert v.Cozmly 0f Yuba (2006) 16 ORDER GRANTING PETITIONS FOR WRIT OF MANDATB mAu—DN \DOOflON 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 145 Cal.App.4th 613,623.)The only other action identified in that subdivision is an action taken under Chapter 4.2 (commencing with section 65913).Petitioners assume that this reference necessarily encompasses section 65913.4,SB 35,because it is part 0f Chapter 4.2.But this interpretation does not necessarily appear t0 be correct under the principle 0f noscitur a socz'z's that directs intelpretation 0f a term in a list by reference to the other items in that list.(See Kaatz v.Cily ofSeaside (2006)143 Cal.App.4th 13,40.)Under that principle 0f interpretation,a court interprets a term more nan‘owly if an expansive intelpretation would make the term markedly dissimilar from the other list items 0r make the other list items unnecessary 0r redundant.(Ibid) Here,interpreting “actions taken pursuant t0 Chapter 4.2 (commencing with Section 65913)”as encompassing the decision t0 ministerially approve a particular proj ect under section 65913.4 would create a marked dissimilarity between that term and the other legislative actions enumerated in section 65009,subdivision (d)(1)(B).Additionally,section 659]3.4 is not the only section within Chapter 4.2.Section 65913.1 requires that when zoning land 0r revising a housing element a city designate sufficient land for residential use.And so,an action taken under section 6591 3.1 falls within Chapter 4.2 and constitutes a legislative action like the other actions enumerated in section 65009,subdivision (d)(1)(B).Similarly,section 6591 3.2,also in Chapter 4.2,imposes limitations 011 the types 0f legislative actions a city may take when it comes to regulating subdivisions.Thus,it seems the Legislature intended section 65009,subdivision (d)(1)(B)t0 encompass legislative actions taken under Chapter 4.2,but not necessarily ministerial 0r adjudicatory decisions.Consequently,petitioners”intelpretation 0f section 65009, subdivision (d)(1)(B)as encompassing streamlined approvals 01'denials of proj ects under section 65913.4 is not convincing. The City’s interpretation 0f section 65009,subdivision (c)(1)(E)is slightly more appealing.While it is true that proj ects subj cot t0 streamlined review d0 not require conditional use permits,section 65009,subdivision (0)(1)(E),including as incorporated in section 65009, subdivision (c)(])(F),encompasses a decision 0n “any other permit.”And so,arguably,even when a proj ect is subj ect t0 streamlined,nondiscretionary review,there is still a decision as t0 whether to permit—meaning t0 allowithe development,which decision may be signified by the I7 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \D OD *Ql O\ U‘I fi b.) I‘Q u—t OONQM4>WNHO©OOQQM<D~WNHO issuance of a document 0r series 0f documents denominated as a “permit.”And a decision made under section 65913.4 might otherwise qualify within the meaning 0f section 65009,subdivision (c)(1)(F)as a decision made before the issuance 0f any other permit. Petitioners d0 not convince the Court that Urban Habitat Program v.City ofPZeasanton (2008)164 Cal.App.4th 156](Urban Habitat)precludes the application 0f section 65009 here. First,the facts 0f that case are distinct because the petitioners there claimed that the City 0f Pleasanton had failed t0 update the housing element 0f its general plan and local development law t0 meet its RHNA such that an impermissible inconsistency arose over time;in other words, the city had failed t0 adapt t0 updated needs and requirements for adequate housing.(Urban Habitat,at pp.1566—1 570,1577.)The issue here is not whether the City failed t0 bring local law and planning documents into compliance,but rather,Whether it took an affirmative action 0n a specific proj ect that was unlawful.While petitioners characterize this as a failure t0 comply with mandatory duties,this is not the same type 0f failure 0r omission that occurred in Urban Habitat. Because that case is circumstantially distinguishable from the case 110w before this Court,and given the broad interpretation afforded t0 section 65009 by other coufis,petitioners’analogy is not compelling. Ultimately,even assuming all 0f petitioners’claims are subj ect t0 a 90—day statute 0f limitations under either section 65009 0r,as t0 the Housing Accountability Act claims, section 65889.5,subdivision (m),they commsnced their respective actions with 90 days 0f the City’s decision 0n the administrative appeal,which process the City insisted,full stop,was required for exhaustion puxposes.The City,through its City Council,made that “final”decision 011 April 23,201 9.(AR002313.)Petitioners filed their petitions in June and served them by July 10th,within 90 days of the April 23rd adopted resolution.Accordingly,each petition in this consolidated action is timely. The Court accordingly rejects the City’s contention that its initial rejection 0f the streamlining application 0n December 7,2018,necessarily accrued a cause 0f action under SB 35 01‘triggered the running 0f the statute 0f limitations as t0 any 0r all claims asserted.Contrary 18 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE mAUJN OQOONJCN 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 t0 what it anticipatorily argues in its opposition,the Court finds that the facts here warrant estoppel Ofthis defense.Equitable tolling applies as well. Equitable tolling and equitable estoppel are two distinct doctrines.(Ashou v.Liberty Mutual Fire Ins.C0.(2006)138 Cal.App.4th 748,757—758.) ““Generally speaking,four elements must be present in order t0 apply the doctrine 0f equitable estoppel:(1)the party t0 be estopped must be apprised 0f the facts;(2)he must intend that his conduct shall be [sic]acted upon,01'must 30 act that the party asserting the estoppel had a right t0 believe it was so intended;(3)the other party must be ignorant 0f the true state 0f facts; and (4)he must rely upon the conduct t0 his injmy.’[Citati0ns.]”(Feduniak v.California Coastal Com.(2007)148 Cal.App.4th 1346,1359,quoting Driscoll v.City ofLosAngeles (1967)67 Cal.2d 297,305.)And “ ‘[t]he government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite t0 such an estoppel against a private party are present and,in the considered View 0f a court 0f equity,the injustice [that] would result from a failure t0 uphold an estoppel is of sufficient dimension t0 justify any effect upon public interest 0r policy [that]would result from the raising 0f an estoppel.’[Citati0n.]” (Feduniak,supra,148 Cal.App.4th at pp.1359—1360.)“[C]0u1“ts will not hesitate t0 estop the government from asserting a procedural barrier,such as the statute 0f limitations 0r a failure t0 exhaust remedies;as a defense t0 claims against it,where the government’s affirmative conduct caused the claimant’s failure t0 comply with the procedural requirement.”(Id.at p.1372.) While estoppel typically arises from misrepresentations 0f fact,it may also apply when a municipality 0r agency does not accurately advise a potential plaintiff about the existence or availability 0f an administrative remedy,which advice may depend in part 0n mixed questions 0f fact and law.(See,e.g.,Shuer v.County ofScm Diego (2004)117 Cal.App.4th 476,487 (Shuer).) For example,when the availability 0f an administrative remedy is unclear and the administrative regulations are susceptible t0 different interpretations,a public entity may be estopped from raising the failure t0 exhaust administrative remedies as a dsfense.(Ibid) “The equitable tolling of statutes 0f limitations is a judicially created,nonstatutory doctrine.[Citati0ns.]”(McDonald v.Antelope Valley Community College Dist.(2008)45 Cal.4th 19 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOONJONUILUJNH NNMNNMNNNHHu—lp—«h—AHHi—LI—to—A OOQCNMAUJNHOOOOHQL/‘tuhmwh‘o December 7,2018.(AR001205.)But the City emphatically said t0 Developer that “an appeal 88,99 (McDonald).)“It is ‘designed t0 prevent unjust and technical forfeitures 0f the right t0 a trial 0n the merits when the purpose 0f the statute 0f limitations—timely notice t0 the defendant of the plaintiff’s claimS—has been satisfied.’[Citation.]”(Ibid,quoting Appalachian Ins.C0.v‘ McDonnell Douglas Corp.(1989)214 Cal.App.3d 1,38.) “Where exhaustion 0f an administrative remedy is mandatory prior t0 filing suit, equitable tolling is automatic:‘It has long been settled in this and other jurisdictions that whenever the exhaustion 01°administrative remedies is a prerequisite t0 the initiation of a civil action,the running 0f the limitations period is tolled during the time consumed by the administrative proceeding.’[Citati0ns.]”(McDonald,supra,45 Ca].4th at p.101,quoting Elkins v.Derby (1 974)12 Cal.3d 410,414.)“This rule prevents administrative exhaustion requirements from rendering illusory nonadministrative remedies contingent 0n exhaustion.”(McDonald, supra,45 Ca1.4th at p.101 .)In other words,the doctrine 0f equitable tolling preserves a party’s right t0 judicial review that would otherwise be rendered infeasible due t0 the consumption 0f the limitations period by the administrative review process. The facts here support the application 0f both equitable tolling and equitable estoppel. The City mandated an administrative proceeding that consumed the limitations period that it now contends was triggered by the initial denial letter 0n the streamlined application 011 nLlst be filed”and that “[flailure t0 timely appcal Will preclude you,01‘any interested party,from challenging the City’s decision in court.”(AR001205.)The City then insisted 0n scheduling a public hearing 011 the administrative appeal before the City Council and delayed in doing SO. (AROOI 3 1 8~AR001 324.)For mandamus claims brought under Code 0f Civil Procedure section 1094.5—and for any other claims in light 0f the emphatic language 0f the letter—the administrative proceeding was mandatory.This is because a “writ is not available t0 intermeddle in the preliminary stages 0f an administrative planning process .”(California High—Speed Rail Authority v.Super.Ct.(2014)228 Cal.App.4th 676,707;see also CalifiJrnia Water Impact Nemark v.Newhall County Water District (2008)161 Cal.App.4th 1464,1482— 1483 [only final decisions subject t0 review].)And,as petitioners point out,even if they contend 20 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE Ix.) O\OOO‘QO\LI1-b-Lfl N N N [\J {\J [\3 [\J N [\J *—‘ P-‘ H >—‘ H ’— >—t H H )—A W \J Q U’l h U3 N H O KO 00 \J O\ ‘J‘I -h b.) N ’—‘ that the City’s December 7,201 8 correspondence resulted in their SB 35 application being deemed approved under streamlined review,With the City then insisting instead 0n an administrative appeal,petitioners could pursue that appeal with the goal that the City Council would not proceed t0 decide de novo whether the SB 35 application in fact qualified for streamlined review but,rather,t0 recognize and decide that “damned”approval 0f ths SB 35 application under section 65913.4,subdivision (b)(2)for obj ective planning standards had already occurred as a matter 0f law obviating the need for litigation. And even treating the administrative proceeding as voluntary,tolling still applies. (McDonald,supra,45 Cal.4th at p.105.)The Court rej ects the City’s rather incredible and unsubstantiated claim that Developer’s acquiescence under protest means that it did not voluntarily pursue the administrative proceeding.The City fails t0 justify (through reasoned analysis 0r authority)the insenion 0f a scienter requirement into the definition 0f voluntary in this particular legal and procedural context.Accordingly,whether Viewed as mandatory or voluntary in character,the administrative proceeding that occurred here is the type 0f intervening activity that tolls the limitations period. Also,petitioners provided sufficient notice 0f their claims thereby fulfilling the purpose 0f the statute 0f limitations before and during the administrative proceeding.The City asserts without authority that Renters’submission 0f public comments was insufficient t0 put it 011 notice 0f their claims.(See AR001334—AR001338;AR002344—AR002345.)Given the specificity and content ofRenters’communications with the City,the Court is not convinced by the City’s conclusory and unsubstantiated assefiion.And,as a practical matter,it is unclear how Renters could have proceeded without waiting for the disposition 0f Developer’s administrative appeal.Especially given the City’s insistence 0n that appeal,it would result in an unjust and technical forfeiture t0 allow the City t0 110w disclaim the necessity 0f this administrative proceeding.Because 0f the brevity 0f the 90-day limitations period,the absence of‘tolling during the administrative proceeding would render judicial review illusory.Equitable tolling is just and warranted under the facts and circumstances presented here.The City’s supplemental brief does not persuade the Coufi t0 reach a contrary conclusion. 21 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE mhwm OKDOON-JCN 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next,the City anticipatorily argues in opposition to the petitions that it is not equitably estopped from raising the statute 0f limitations as a defense because estoppel applies when a pafiy misrepresents 01‘conceals facts and not matters 0f law.(Opp.at p.19:6—1 7,citing Jordan v.City ofSacmmento (2007)148 Cal.App.4th 1487 (J0rdan).)While the City’s statement 0f law is not inaccurate 0n its face,it is incomplete and misleading.And the City’s analysis is underdeveloped.Moreover,the City relies exclusively 011 Jordan,which is not analogous. Here,the City vehemently asserted by letter that an administrative appeal was mandatory and that it would raise the defense 0f exhaustion 0f administrative remedies t0 preclude Developer from seeking judicial review 0f the City’s conduct absent an appeal.The City’s representation as t0 the position it was taking,and would take in any litigation,is a representation 0f fact.And,although Developer stated its opinion 01'belief that the City’s legal analysis was incorrect,Developer was at the mercy 0f the City’s interpretation 0f its own municipal code.In other words,the parties differed in their understanding of the law and in their authority t0 interpret and enforce that law.As in Shuer,this type 0f informational and interpretive asymmetry is sufficient t0 justify estoppel; As for the second and fourth elements 0f estoppel—that the party t0 be estopped intended that his conduct be acted upon,or that this party so acted such that the other party had a right t0 believe the conduct was s0 intended,and that the other party relied 0n the conduct t0 his injury~ the City’s letter informing Developer 0f the requirement 0f an administrative appeal contained such emphatic and mandatory language that it is reasonable t0 conclude the City intended t0 induce Developer’s reliance thereon.And Developer acquiesced t0 the City’s representation t0 its detriment,pursuing an administrative appeal albeit under protest.When faced with the untenable choice 0f either suing immediately and facing dismissal for failure to exhaust,0r exhausting administrative remedies t0 preserve its claim 0f unlawful conduct,it was reasonable for Developer t0 rely 0n the City’s interpretation 0f its own code and representation Ofthe exhaustion defense it intended t0 raise,particularly given the unequivocal and emphatic language the City used t0 express this position.Further,under these circumstances,before having t0 initiate litigation,Developer could reasonably SO acquiesce t0 the City’s demand in an effort t0 22 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE O&DOONJQU‘I-bwmfl NNMNNNNNNr—Iy—Ap—LHHr—Lt—Hr—Ir—n OO‘QONM-fiUJNHOWOOflQM-PWNH get the City Council t0 recognize the mandatory timelines and requirements 0f SB 35 and the consequences 0f its having earlier failed t0 meet those provisions,and t0 correct its prior en'oneous approach. Finally,the Court concludes that the inj ustice that would result in the absence 0f estoppel is enough t0 justify application 0f the doctrine here. For all 0f these reasons,the Court rejects the City’s statute-of—limitations defense and reaches the merits 0f petitioners’claims. B.Petitioners Are Entitled t0 Reliefon the Merits Petitioners allege that the City’s conduct violated three different housing statutes: (1)the streamlining statute (§65913.4,SB 35);(2)the Density Bonus Law (§6591 5);and (3)the Housing Accountability Act (§65589.5). 1.The City Failed t0 Comply wifh Section 65913.4 i.Statutory Background In 2017,the Legislature passed SB 35 t0 reform land-use and housing law,including by creating “a streamlined,ministerial approval process for infill developments in localities that have failed to meet their regional housing needs assessment []numbers?”(Sen.Rules C0111, Rep.0n Sen.Bill N0.35 (2017—2018 Reg.Sass.)May 27,2017.) Section 65913.4,subdivision (a)states in relevant part:“A development proponent may submit an application for a development that is subject t0 the streamlined,ministerial approval process provided by subdivision (b)and not subj ect t0 a conditional use permit if the development satisfies all 0f the []obj ective planning standards”set forth further in subdivision (a). 13 As part 0f the housing element 0f a municipality’s general plan,it must calculate its Regional Housing Needs Allocation 0r Assessment (RHNA),which is the “‘existing and proj ected need for housing’” in the area for individuals and households 0f all income levels. (Fomeca v.City osz'Zray (2007)148 Ca1.App.4th 1174,1186,fn.8,quoting Gov.Code, §65583.)If a municipality’s present and proj acted housing needs exceed its housing stock and land available for development,it must work t0 satisfy its RHNA by increasing the availability 0f land for housing development by,for example,changing zoning and development restrictions. (Gov.Code,§65583,subd.(c)(1)(A).) 23 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE The objective planning standards that operate as eligibility criteria for streamlined, ministerial review consist 0f inclusionary and exclusionary criteria.111 the abstract,the inclusionary and exclusionary criteria balance the primary policy of expediting housing construction with the competing policy 0f safe,well—designed construction as embodied in existing law.T0 illustrate,a proposed development must be “a multifamily housing development that contains two 0r more residential units”in an urban area that will not displace existing rent- controlled and income-restricted housing.(§65913.4,subds.(a)(1)—(2),(a)(7).)A mixed~use development still qualifies if “at least two—thirds 0f the square footage of the development [are] designated for residential use.”(§6591 3.4,subd.(a)(2)(C).)Exclusionary criteria disqualify a development proposed for construction in 01*0n a coastal zone,fire zone,flood plain,earthquake fault zone,hazardous-waste site,wetland,01‘prime famnland.(§6591 3.4,subd.(a)(6).) Currently,the statute specifies that when evaluating consistency with the standards above,a development is consistent “if there is substantial evidence that would allow a reasonable person t0 conclude that the development is consistent with the obj active planning standards?” (§65913.4,subd.(b)(3).)Unless an agency timely explains t0 a developer in writing the reasons why the proposed development is not consistent with the eligibility criteria,“the development Shall be deemed t0 satisfy the objective planning standards in subdivision (3).”(§65913.4, subds.(b)(1)—(2).)An agency’s deadline for notifying a project proponent 0f ineligibility for streamlined,ministerial review is either 60 0r 90 days depending 011 the size 0f the proposed development.(§65913.4,subds.(b)(l)(A)—(B).) Proposed developments that qualify for streamlined,ministerial review may still be subj ect t0 design review 01‘public oversight with the limitation that this oversight “shall be objective and be strictly focused 0n assessing compliance with criteria required for streamlined proj ects,as well as any reasonable objective dasign standards published and adopted by ordinance 0r resolution by a local jurisdiction before submission 0f a development application, l4 Section 65913.4,subdivision (b)(3)became effective January 1,2020.(Sen.Bill N0.23S (2019—2020 Reg.Sess.)§5.3;Assem.Bill N0.1485 (2019m2020 Reg.Sass.)§1.) 24 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE H OONJQM¥UJNHO©OONJOMAWNH onooxmcxmh‘ww and shall be broadly applicable t0 development within the jurisdiction.”(§65913.4,subd.(c)(l),) The design review must be completed,if at all,within 90 0r 180 days”depending 0n the size 0f the development and “shall not in any way inhibit,chill,or preclude the ministerial approval provided by this section or its effect .”'6 (§65913.4,subd.(c)(l).) ii.Application The City’s notice 0f inconsistencyhere,its SB 35 denial letter 0f December 7,2018,was neither code-compliant nor suppofied by substantial evidence. Section 65913.4 subdivision (b)(l)provides:“If a local government determines that a development submitted pursuant t0 this section is in conflict with any 0fthe objective planning standards specified in subdivision (a),it Shall provide the development proponent written documentation 0f which standard 0r standards the development conflicts with,and an explanation for the reason 01‘reasons the development conflicts with that standard 01'standards .”The Court concludes here that the City failed t0 comply with this notice requirement 15 This means that for a smaller development,the deadline for notice of ineligibility is 60 days (§65913.4,subd.(b)(])(A))and an agency may take an additional 30 days t0 complete design review 0r public oversight for a total 0f 90 days (§6591 3.4,subd.(c)(1)).For a larger development,the deadline for notice 0f ineligibility is 90 days (§65913.4,subd.(b)(1)(B))and an agency may take an additional 90 days t0 complete design review 0r public oversight for a total 0f 180 days (§65913.4,subd.(c)(2)). 16 Notably,while section 6591 3.4,subdivision (c)gives localities additional time to review objective design standards,the Legislature also enumerates compliance with “objective design review standards”as an objective planning standard~—an eligibility criterion—in subdivision (a)(S).There does not appear t0 be a substantive distinction between these two terms. The descriptions in subdivisions (a)(5)and (c)of what design standards may be applied are so similar that they suggest the terms are equivalent.The statutory framing 0f design standards as both eligibility criteria and criteria capable 0f review during the extended timeframe for public oversight is problematic because 0f the distinct deadlines for making those distinct determinations.Treating compliance with Obj ective design standards as an objective planning standard under subdivision (a)arguably renders as surpluSage the later deadline for design review in subdivision (c)(l).Coufls typically avoid intelpreting statutes in such a manner. (Amer!v.Dal Cielo (1996)14 Cal.4th 4,22.)Ultimately,the Court need not resolve this ambiguity based on the pafiicular record and arguments advanced here.The City did not comply by either deadline and does not ask for additional time t0 conduct public oversight in its supplemental brief 0n the scope 0f relief that is warranted. 25 ORDER GRANTWG PETITIONS FOR WRIT OF MANDATE OO‘QONL/i-RUJN O\O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the City did not adequately identify objective standards and provide an explanation 0f inconsistencies supported by substantial evidence in its SB 35 denial letter. First,the City did not adequately identify applicable objective standards with which the project did not comply.The City conceded its initial error in asserting that a higher percentage of affordable units was required;it had relied 0n an outdated and incorrect HCD determination. (AROOOI 69.)Thus,it is undisputed that the first bullet point in the City’s denial letter was based 011 an incorrect and inapplicable standard. As for the other two bullet points,the City did not adequately identify the standards or code provisions it was referring t0 01‘relying 0n.It concluded the proj ect lacked “the required number 0f off-street residefitial and Visitor parking spaces”and “adequate access/egress t0 the proposed off-Street parking.”(AR000127.)But it is not apparent from this vague statement just what those purpofied standards are.01‘where they can be located.Thus,the City did not adequately identify the parking standards it was relying 0n.And notwithstanding the opacity and ambiguity 0f the City’s statement,it is apparent that it was not relying on permissible,obj ective standards for parking.First,section 65913.4,subdivision (d)(2)states that “the local government shall not impose automobile parking requirements for streamlined developments approved pursuant t0 this section that exceed one parking space per unit.”(§65913.4,subd.(d)(2).)And for proj ects meeting certain criteria—such as projects within 011e—half mile of‘tl‘ansithno parking requirements may be imposed.(§6591 3.4,subd.(d)(1).)Consequently,the City not only failed t0 identify the purported parking requirement but also failed t0 account for the prohibitions in section 6591 3.4,subdivision (d)as well.Moreover,the City has yet t0 identify any evidence in the record t0 support the conclusion that it could require more parking based 011 the location and characteristics 0f the proj ect here. As for ingress and egress,“adequacy”is not an obj ective stahdard that may be applied t0 streamlined proj eats.Obj ective standards are those “that involve 110 personal 0r subjective judgment by a public official and are uniformly verifiable by reference t0 an external and uniform benchmark 0r criterion available and knowabls by both the development applicant 0r proponent and the public official before submittal.”(§65913.4,subd.(a)(S).)What qualifies as 26 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE oxooouoxm-bmmp [\J [\J [\J N N [\J N [\J N t—t :— t— H u—s ,—- ’—A p— H ,_.. 00 \J a (Jl -D DJ N H O 0 GO \J ON U’l b U) N H adequate—in the absence 0f an identifiable standard 01‘definition—is simply a matter of personal 0r subj ective judgment.T0 date,the City has not identified a uniformly verifiable, knowable standard for adequate ingress and egress.Accordingly,it impermissibly relied 0n a subjective standard in its denial letter. What’s more,there is n0 explanation in the denial letter about how the proposal was inconsistent with the unspecified standards applied by the City.For example,the City did not explain that the project provided only X number of parking spaces when the required number was Y.So,the City’s denial letter was not code-compliant in this regard as well. The City does not present a convincing argument t0 support a contrary conclusion.In the City’s papers,it does not clearly and directly counter petitioners’supporting points.For example, the City does not argue that it adequately identified all 0f the Objective standards set forth in its denial letter 01‘that all 0f the standards it identified qualified as objective standards permissibly applied in the course 0f streamlined review.And the City does not explain how its cursory reference t0 such standards qualified as “an explanation for the reason 0r reasons the development conflicts with that standard 0r standards.”(§6591 3.4,subd.(b)(l).)17 Instead,the City argues the denial letter,when read in conjunction with the incomplete notice,put Developer 0n sufficient notice so as t0 somehow satisfy section 6591 3.4.This argument lacks merit. The first problem with the City’s contention is that it relies 0n an unspecified standard for the sufficiency 0f notice in lieu 0f the standard spelled out by the Legislature in section 65913.4, subdivision (b)(l).Although not clearly articulated by the City,it seems t0 invoke the concept 0f notice in the context 0f the constitutional minimum for procedural due process.(See generally Gilbert v.City ofSunnyvaZe (2005)130 Cal.App.4th 1264,1275—1280.)But the issue here is not whether the City met the constitutional minimum.The issue is whether it complied with the applicable statutory requirements. 17 Section 6591 3.4 does not merely require a statement ofreasons for denying an application for streamlined review.Rather,it imposes the more specific requirement 0f an explanation 0f how the proposed development conflicts with the objective standards that the municipality identifies. 27 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE OKOOOHQU‘I—b-UJNH N N [\J [\J NAN N {\J [\J >— y—n u—n :—- H p—I n— —I r—t >—~ m \J 0 K)! -§ LN [\J |—‘ Q O 00 \J O\ (.11 -P 1).) [\3 H The City does not advance a persuasive argument for disregarding the Specific statutory requirements for notice.While it purpons t0 invoke a principle 0f statutOIy construction that places substance over form,it is not necessary t0 rely 0n,and the City does not fairly interpret and rely 0n,that principle.(See generally Troyk v.Farmers Group,Inc.(2009)171 Cal.App.4th 1305,1332 [discussing scope and limitations 0f concept 0f substantial compliance].)In actuality, the City urges a complete disregard for the language of the statute in a vacuum and without regard for the statute’s purpose.In other words,the City disregards the form and the substance 0f the statute.The language the City asks the Court t0 ignore——What it suggests is a mere formality—is in fact the specific procedure at the heart 0f the statute that effectuates its purpose. In the absence 0f deemed compliance under section 6591 3.4,subdivision (b),the statute would operate as a mere suggestion without an enforcement mechanism.And,because section 659 1 3 .4, subdivision (b)is consistent with and Effectuates the purpose 0f the statute,there is 110 inconsistency between that “form”and the substance 0f the statute necessitating a reconciliation 0f those concepts under the canon invoked by the City.The City’s argument in this regard is questionable and its reliance 0n County ofKem v.TCEF,Inc.(2016)246 Cal.App.4th 301 is misplaced.The Court applies the requirements for a notice 0f inconsistency that are plainly spelled out in the statute,not an amorphous due process standard that would d0 violence to its very language and purpose. The second problem with the City’s argument is that it relies 0n an implausible and unreasonable interpretation 0f the record.The City states that its incomplete notice and denial letter provide sufficient documentation when read together.But the terms 0f these documents d0 not support such a construction.The City explicitly stated that it was proceeding as though it had two applications submitted by Developer in November 201 8.It purported t0 deny one application and find the other incomplete.The conespondence setting forth those distinct decisions,while issued together,cannot be fairly read and interpreted in the manner the City now urges.The incomplete notice does not purpofi t0 specify inconsistencies with Obj ective standards under SB 35;it purports t0 specify the additional information required before a traditional,discretionary review could be commenced.Similarly,the denial letter does not purport t0 require additional 28 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE OGOOQONU‘I-DUJN NNNNMNNNNt—ti—HHHHHt—Ip—nh—a OC‘JQMhWNHOOOOKIONm-bwmfifi information so an SB 35 determination could be made;the letter purports t0 finally reject the streamlining application upon completion 0f the City’s review.And so,the City’s own belief that there were two applications and the unequivocal statements in each discrete item of correspondence purporting t0 separately dispose 0f each application cannot fairly be read together as one,code-compliant letter documenting inconsistencies with objective standards under section 65913.4,subdivision (b)(l).The City’s post—hoc,revisionist interpretation lacks credibility.18 The City explicitly represented that it had made a decision t0 deny the streamlining application.Because 0f this,it cannot 110w claim that,in fact,it did not make such a decision and lacked sufficient information t0 d0 so,all to avoid the consequences 0f the inadequate notice 0f inconsistency it had provided.And,even if it could take this inconsistent position,it fails t0 substantiate the same.The City cites no authority for the proposition that it may evade the statutory deadlines in section 65913.4 by claiming incompleteness.In actuality,it appears the Legislature enacted section 65913.4,in part,t0 address the use 0f such delay tactics under existing law: [T]he 1977 Pemnit Streamlining Act requires public agencies t0 act fairly and promptly 0n applications for development permits, including new housing.If they don’t,the project is deemed approved.Under the act,public agencies must compile lists 0f information that applicants must provide and explain the criteria they Will use t0 review permit applications.Public agencies have 30 days t0 determine whether applications for development projects are complete;failure t0 act results in an application being “deemed complete.”However,local governments may continue t0 request additional information,potentially extending the time before the application is considered complete,which is the trigger for the approval timeline to commence.This has led t0 the Permit 18 The Court also finds unpersuasive the City’s assertion that Developer somehow created confusion over its application based 011 the cover sheet it used.(Opp.at p.9:20—28.)The City had not updated its cover sheet t0 account for streamlining applications and does not point t0 any evidence in the record that it had created and made available a separate form 0r cover sheet for them.Thus,under the circumstances and given the explicit and clear statements in the application itself about the nature 0f the review Developer was requesting,this assertion and characterization by the City also lacks credibility. 29 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOONJQU‘I-PWNH NNNNMNMNNHt—H—tJ—IHP—Lu—ar—‘H OOQQLh-hWN—‘OKOOOQONM-PWN—‘O Streamlining Act t0 be characterized as a “paper tiger”that rarely results in accelerated development approvals. (Sen.Gov.&Finance Com,Rep.0n Sen.Bill N0.35 (2017—2018 Reg.Sess.)April 26,2017.) Arguably,if the City had truly lacked sufficient information 0n which t0 make an SB 35 determination,it could have endeavored t0 follow section 6591 3.4 in stating as much by identifying the Objective standards that it was applying and explaining how it could not conclude, 0r lacked sufficient information t0 conclude,that the project was consistent With those standards. Furthemmre,the City does not present reasoned analysis t0 suppon the conclusion that a reasonable person simply could not find that the project was consistent with obj active standards without all 0f the infomlation set forth in the notice 0f incomplete application.The bullet points at page 23 0f the City’s opposition d0 not cure the gaps in its analysis or appear,0n their face,t0 encompass objective standards. In sum,the City does not establish that it properly concluded that Developer’s application was incomplete as a matter 0f law 0r fact (e.g.,the contents 0f the denial letter).The City unequivocally denied the streamlining application and will be held t0 the reasons aITiculated in its denial letter. For all 0f these reasons,petitioners show and the City does not effectively refute that it did not provide a code-compliant notice 0f inconsistency.This conclusion is corroborated by the opinion ofHCD.(See AR1330;see also Pet.Supp.RJN.)It follows under section 65913.4 that Developer’s proposal was deemed t0 comply with obj active standards as a matter 0f law and irrespective 0f whether the proposal is consistent with those standards as a matter 0f fact.The City’s points 0n Whether the proposal was,in fact,inconsistent are immaterial,particularly t0 the extent the City addresses purported inconsistencies other than those identified in the denial letter and within the statutory timefi‘ame for notice.19 (Opp.at pp.24:9—27:1 8.) 19 Because 0f the essential statutory deadlines in section 65913.4,the Court does not address the City’s belated and post—hoc rationales in detail.That said,petitioners present a number of cogent points about the legal and factual illegitimacy 0f these belated rationales (Pet. Brief at pp.27:6—33:1),which points the City largely fails t0 address in Opposition (Opp.at pp.24:21~29:2). 30 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE OOOO‘QONM-hUJN—n NNNNMNMNNHer—nwwr—t—nHi—n OO‘JQM-PWNHOKOmflQM-hmwF—fi 2.Density Bonus Law “In 1979,the Legislature enacted the density bonus law,section 6591 5,which aims t0 address the shortage 0f affordable housing in California.”(Latinos Unidos del Valle de Napa y Solano v.Coumjv ofNapa (2013)217 Cal.App.4th 1160,1164 (Latinos Unidos).)“Although application of the statute can be complicated,its aim is fairly simple:When a developer agrees to construct a certain percentage 0f the units in a housing development for 10W 01‘very 10w income households,01't0 construct a senior citizen housing development,the city 01‘county must grant the developer one 0r more itemized concessions and a ‘density bonus,’Which allows the developer t0 increase the density 0f the development by a certain percentage above the maximum allowable limit under local zoning law.”(Lagoon Valley,supra,154 Cal.App.4th at p.824,citing §6591 5,subds.(a),(b).)“In other words,the Density Bonus Law ‘reward[s]a developer who agrees t0 build a certain percentage 0f low-income housing with the opportunity t0 build more residsnces than would otherwise be permitted by the applicable local regulations.’[Citati0n.]”20 (Lagoon Valley,supra,154 Cal.App.4th at p.824.) “T0 ensure compliance with section 65915,local governments are required t0 adopt an ordinance establishing procedures for implementing the directives 0f the statute.”(Latinos Unidos,supra,217 Ca1.App.4th at p.1164,citing §65915,subd.(31).)The general rule is that a city’s density—bonus ordinance must be consistent with the statewide Density Bonus Law and is preempted t0 the extent it conflicts.(Lagoon Valley,supra,154 Ca1.App.4th at p.830.)That said,while the Density Bonus Law establishes the minimum bonuses and incentives a municipality is required t0 provide,the law does not preempt a municipality from providing greater bonuses 0r incentives in its own ordinance.(Id.at pp.825—826.)Additionally,a density- bonus ordinance must establish a procedure and timeline for evaluating density-bonus requests that is consistent with the Density Bonus Law,including by enumerating the documents and 20 In the event 0f an inconsistency between the maximum density allowed under the zoning ordinance and the general plan,the general plan controls and provides the limit used t0 calculate (using the specified bonus percentage)the number 0f bonus units that may be built. (Wollmer v.City ofBerkeley (201 1)193 Cal.App.4th 1329,13444345 (Wollmer 11).) 31 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \DOOQQM-bWNV—l MNNNNNI‘QNN—tr—Lp—Lx—HHHHHH OO‘QCNM-wafioooo‘JOM-PWNP‘O information that must be submitted as part 0f a complete request.(§6591 5,subds.(a)(2)—(3).)In codifying a transparent and expeditious procedure,a municipality “shall not condition the submission,review,01‘approval 0f an application [for a density bonus]0n the preparation of an additional report 01'study that is not otherwise required by state law,including [the Density Bonus Law].”(§65915,subd.(a)(2).) The City’s density-bonus ordinance is codified in Los Altos Municipal Code section 14.28.040.Under section 14.28.040,subdivision (C)(1)(a)(i)0fthe City’s code,a development with 10 percent 0f its units designated for low-income households “shall be granted”a 20 percent density bonus.This density bonus increases by 1.5 percent,up t0 a maximum 0f 35 percent,for each additional percentage point 0f low-income housing provided.So,for example,a davelopment with 11 percent 0f its units designated for low-income households is entitled t0 a 21 .5 percent density bonus.As relevant here,a development with 20 percent 01‘more units designated for low~income households will be granted the maximum,35 percent density bonus. That density bonus is calculated as a percent “increase over the otherwise maximum allowable gross residential density .”(Los Altos Mun.Code,§1428.040,subd.(B)(2);see also §65915,subd.(fl) A developer may additionally obtain an incentive for designating units for low-income households.(Los Altos Mun.Code,§1428.040,subd.(C)(1)(a)(ii).)A developer must be granted one incentive for designating 10 percent 0f units for 10w~incon1e households,two incentives for designating 20 percent,and three incentives for designating 30 percent 0r more. (Ibid;see also §65915,subd.(d)(2)(A)—(C).)The City has codified “on—menu incentive?»— incentives that “would not have a Specific adverse impact”—in the density-bonus ordinance. (Los Altos Mun.Code,§14.28.040,subd.(F).) A city “Shall gran ”a bonus 0r incentive unless it makes written findings supported by substantial evidenca that:there will be 110 identifiable and actual cost reduction t0 provide for affordable housing costsfihere Will be a specific,adverse,unmitigable impact on‘public health and safety,the environment,0r registered historic places;0r granting the bonus 0r incentive is contrary t0 state 0r federal law.(§65915,subd.(d)(1);see also L03 Altos Mun.Code, 32 ORDER GRANTING PETITIONS FOR WRIT OF MAN DATE N OOOHJQUI-P‘w 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 28 §1428.040,subd.(F)(3).)And,“[i]n 110 case may a city apply any development standard that will have the effect 0f physically precluding the construction 0f a development meeting the criteria 0f subdivision (b)at the densities 0r with the concessions 0r incentives permitted by [the Density Bonus Law].”(§65915,subd.(e)(1).)A developer may seek a waiver 01'reduction 0f such standards that physically impede construction 0f the development.(13nd) “The applicant may initiate judicial proceedings if the city refuses t0 grant a requested density bonus,incentive,0r concession.”(§65915,subd.(d)(3).)As noted,this proceeding is ordinarily brought in administrative mandamus.(See,e.g.,Lagoon Valley,supra, 154 Cal.App.4th at pp.812,816—817.)The city “shall bear the burden 0f proof for the denial 0f a requested concession 0r incantive.”(§65915,subd.(d)(4).)“If a court finds that the refusal t0 grant a requested density bonus,incentive,0r concession is in Violation 0f this section,the court shall award the plaintiff reasonable attorney’s fees and costs 0f suit.”(§65915,subd.(d)(3).) In Developer’s application (inclusive 0f its density bonus repofi),it proposed designating two 0f eight base units—ifi.25 percent 0f the base units—for low—income households. (AROOOOIO,AR000061 .)Developer asserted that this level 0f affordability entitled it t0:1)a 35 percent density bonus;and 2)two concessions,only one 0f which it sought t0 use.(AROOOOIO, AR000061 .)Developer selected an 11-foot height increase—which is on-menu (L03 Altos Mun. Code,§14.28.040,subd.(F)(1)(d))—as its concession.(AROOOOIO,AR000061.)Based 0n the bonus and concession,Developer proposed constructing seven additional units.(AR000061).21 It 27 Consistently with state law,the Los Altos Municipal Code defines a density bonus as an “increase over the otherwise maximum allowable gross residential density .”(Los Altos Mun.Code,§1428.040,subd.(B)(2);see also §65915,subd.(fl)The maximum allowable density means the density allowed under a local zoning ordinance 0r general plan,with the maximum density in the general plan controlling in the event 0f an inconsistency.(§65915, subd.(0)(2);see also Lagoon Valley,supra,154 Cal.App.4th at p.824.)Developer asserts and the City does not seem t0 dispute that there is no standard for units 01'intensity (Floor Area Ratio)applicable t0 buildings,like the proposed development,that are zoned Commercial-Retail Sales/Office-Administrative District (CRS/OAD).(AROOOOI 1,AR000062 [Density Bonus Rep01't].)Perhaps there is no standard because housing above the ground floor qualifies as a conditionally—permitted use under L05 Altos Municipal Code section 1454.040 as compared t0 an office 0r retail use that is permitted by right under section 1454.030.In any event,instead 0f applying the density bonus t0 the maximum density allowed under the law (either the ordinance 33 ORDER GRANTING PETlTIONS FOR WRIT OF MANDATE OOOO‘QQLIIAUJNH NNNNNNNNMa—AHt—HHHp—AHp—sr—A WHQMkamHOOWQONm-PWNH does not identify a specific,adverse,unmitigable impact on public health and safety. appears the seven units exceed the number authorized by the 35 percent density bonus standing alone,so the parties’dispute seems t0 hinge 011 whether the right t0 an 11~f00t height increase necessarily includes the right t0 include additional housing units in that additional space.(See AR0023 10—AROO231 1.) As a threshold matter,the City’s interpretation 0f the Density Bonus Law is incorrect. The City asserts that any and all concessions,incentives,and waivers must result— collectively—in n0 more than a 35 percent increase in density.Courts have routinely rejected such an interpretation 0f the law.The 35 percent bonus authorized under the Density Bonus Law and the City’s own ordinance is the mandatory minimum a city must provide;it is not a cap. (Lagoon Valley,supra,154 Cal.App.4th at pp.823—826.)And so,the City was required,at minimum,t0 provide a 35 percent bonus and any other incentive 0r concession required by law. Otherwise,t0 the extent the City believed any additional incentive 0r concession was discretionary,it was required t0 infoml Developer 0f this conclusion in a code-compliant manner by making the statutorily—required findings.(See §65915,subd.(d)(1);see also Los Aitos Mun. Code,§14,28,040,subd.(F)(3).)The City failed t0 d0 so here.Instead,the City made a vague statement that “the requested concessions and waivers appear t0 raise substantial issues concerning public health and safety,including questions regarding”compliance with the Americans With Disabilities Act (42 U.S.C.§12101 et seq.).(AR00231 1.)On its face,this statement is SO equivocal as t0 fall short 0f an affirmative finding.Furthermore,this statement Accordingly,this finding is deficient. T0 be sure,although the City bears the burden ofjustifying its density-bonus decision,it does not attempt t0 justify that decision under an appropriate standard 0f review and based 0n the statutory requirements.Its opposition instead focuses 0n its interpretation 0f the 35 percent bonus 01‘the general plan),both parties appear,at times,t0 treat the bonus as applying t0 the number 0f base units.(See,e.g.,AR002310—AR002311.) 34 ORDER GRANTING PETITIONS FOR WRIT 0F MANDATE O‘OOOflQM-PWN 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 as a cap,which interpretation is contrary to established precedent.Accordingly,petitioners” density-bonus claim is meritorious;the City did not comply with the law. In reaching this conclusion,the Court notes that it remains unsettled whether the City could attempt t0 deny the density-bonus request for the first time during the administrative proceeding.This is because section 6591 3.4 contemplates that a proposal subject t0 streamlined review may contain bonus units.(§63913.4,subd.(a)(2)(C).)Arguably,t0 determine whether a project With bonus units comports with the objective standards in section 65913.4,a city must determine Whether the bonus units are allowable in the course 0f a streamlined review.In truncating the review process through section 6591 3.4,the Legislature has not clearly addressed how such changes operate with other housing laws,such as the Density Bonus Law.Ultimately, because even the City’s final resolution is deficient,the Court does 110i and need not resolve this question. In concluding that the City violated the Density Bonus Law,the Court rejects the City’s argument that Developer’s application was incomplete or lacked sufficient information t0 allow it t0 evaluate the density-bonus request. “A local government shall not condition the submission,review,0r approval 0f an application pursuant t0 this chapter'on the preparation 0f an additional report 01'study that is not otherwise required by state law,including this section.”(§65915,subd.(20(2),)This prohibition does not preclude a municipality from requiring “reasonable documentation t0 establish eligibility for a requested density bonus .”(Ibid)But,a municipality “shall [p]r0vide a list o'f all documents and information required t0 be submitted with the density bonus application in order for the density bonus application t0 be deemed complete.”(§65915,subd.(a)(3)(B).) “This list shall be consistent with this chapter.”(Ibid) Collectively,these directives and prohibitions establish that a municipality cannot condition consideration and approval 0f a density-bonus request 0n information 01‘documents unless it specifies these materials in advance and in conformity with the Density Bonus Law. Here,Los Altos Municipal Code 14.28.040,subdivision (D)specifies the local forms and other information an applicant must submit with a density-bonus request.That said,with the 35 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE ,_A OWOOQONUI-btptx.) [‘0 [\3 N N N N N [‘3 N ’—‘ ’d *-—‘ ’—‘ *—‘ H r—A I—L r—A H m \J ON (Jl $ U3 [\J >—‘ O KO DO NJ C‘w (J) -P- U3 [\J >-‘ exception 0f several forms,the ordinance broadly requires “reasonable documentation”0f certain facts and does not specify particular documents that must be submitted.(Los Altos Mun.Code, §14,28,040,subd.(D).)In the City’s opposition,it Offers a conclusory assertion that Developer’s‘ application was incomplete.The City does not explain how its application requirements comport with those permitted under the Density Bonus Law.And the City does not attempt t0 justify the sufficiency 0f its findings or the evidence 0n the subject 0f completeness.This presentation is insufficient t0 carry the City’s burden 0f establishing that it complied with the law. Looking t0 the City’s final resolution and the notice 0f incomplete application referenced therein,and assuming for argument sake that this notice could be considered as part 0f the City’s denial 0f the streamlined application,the propriety of the City’s conduct is not apparent.The “Density Bonus Report Submittal Requirements”~—a form that accompanied the notice 0f incomplete application——indicates that Developer had largely submitted all required information. (AR000147—AR000149.)Based 0n circling and underlining 011 the second page 0f this form,the City seemed to take the position that it needed additional documentation that incentives 01‘ concessions would result ifi cost reductions and that waivers were needed for standards that would physically preclude the concessions 0r incentives.(AROOOMSJ Because the Density Bonus Law now puts the onus 0n a municipality t0 make a finding t0 support denial 0f a density— bonus request,SUch as a finding that a concession 01*incentive would not result in cost reductions (§65915,subd.(d)(1)(A)),the City’s insistence that Developer prove the contrary in the first instance Shifts the burden t0 the applicant in contravention 0f the statute.”And,also,the requested “reasonable documentation”appears t0 concern matters beyond the eligibility i11f01mation that can be requested.(§65915,subd.(a)(2).)Moreover,Developer asserts that the City is incorrect because Developer did,in fact,submit sufficient information.This assertion is correct.The claim that the City Gould not determine the allowable base density is not credible 22 The record reflects that the City sought out a consultant but apparently never hired one 01‘completed the process required t0 evaluate and make findings sufficient t0 rej ect Developer‘s density-bonus request.(See AR002332~AR002336 [proposed scope 0f work from Keyser Marston Associates].) 36 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \DOOQQLh-bU—DNH NNNNNNNMNHi—‘i—‘HHHu—AHH—a mflam-RWNHO‘OWNQKJ‘IuDWNHO given that density is determined by municipal law.And,as for eligibility,Developer otherwise presented detailed information in its application about its building plans t0 allow the City to evaluate eligibility for a density-bonus.The City did not rebut this point in its papers 0r at the hearing.To summarize,even setting aside the City’s inadequate argument and analysis 0n the Density Bonus Law,the record undercuts any claim of incompleteness based 0n what a city may legally ask for and what Developer,in fact,presented here. 3.Housing Accountabilily Act The Housing Accountability Act or “HAA (§65589.5),known as the ‘anti—NIMBY law,’ was designed t0 limit the ability 0f local govermnents t0 rej ect 0r render infeasible housing developments based 0n their density without a thorough analysis 0f the ‘economic,social,and environmental effects 0f the action .’ (§65589.5,subd.(b).)”(Kaine!Gardens,LLC v.City 0f L05 Angeles (2016)3 Cal.App.5th 927,938 (Kalnel Gardensj.)“When a proposed development complies with obj ective general plan and zoning standards,including design review standards,a local agency that intends to disapprove the proj ect,0r approve it 0n the condition that it be developed at a lower density,must make written findings based 011 [a preponderance 0f the evidance 0n the record]that the project would have a specific,adverse impact 0n the public health 0r safety and that there are n0 feasible methods t0 mitigate 01'avoid those impacts other than disapproval 0f the project.(§65589.5,subd.(j)(1).)”23 (Kaine!Gardens,supra, 3 Cal.App.4th at pp.938—939.)And,much like the streamlining statute (§65913.4),the HAA requires written notice 0f inconsistency within 30 01‘60 days and provides that if an agency “fails t0 provide the required documentation pursuant t0 subparagraph (A),the housing development project shall be deemed consistent,compliant,and in conformity with the applicable plan, program,policy,ordinance,standard:requirement,0r other similar provision.”(§65589.5, subd.(j)(2).) 23 Until December 3 1,201 7,section 65889.5 required that an agency’s findings be supported only by substantial evidence.Effective January 1,201 8,the findings must be supported by a preponderance 0f the evidence.(Sen.Bill N0.167 (20174018 Reg.Sess.)§1 [Stats.2017,ch.368];Assem.Bill N0.678 (2017—2018 Reg.Sess.)§1 [Stats.2017,ch.373].) 3 7 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE .bUJN \OoouONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If an agency fails t0 comply with the HAA,a developer,prospective resident,01'housing organization,such as Renters here,may seek judicial review by filing a petition for writ 0f administrative mandate.(Kaine!Gardens,supra,3 Ca1.App.5th at p.941,citing §65589.5, subd.(111).)Under that judicial review,section 65589.5,subdivision (i)explicitly places the burden 0f proof 0n the agency t0 “show that its decision is consistent With the findings as described in subdivision (d),and that the findings are suppofied by a preponderance 0f the evidence in the record with the requirements of subdivision (0).”24 If an agency “disapproved a proj ect 0r conditioned its approval in a manner rendering it infeasible”without making the required findings,the court must issue an order 0r judgment compelling the jurisdiction t0 comply within 60 days,including by taking action 0n the development.(§65589.5,subd.(k).) “The court may issue an order 0r judgment directing the local agency t0 approve the housing development proj ect 01'emergency shelter if the court finds that the local agency acted in bad faith”When it disapproved the housing development 01‘emergency shelter in violation 0f this section.”(§65589.5,subd.(k)(1)(A)(ii).)“The court shall retain jurisdiction t0 ensure that its order 0r judgment is carried out and shall award reasonable attorney’s fees and costs 0f suit to the plaintiff 0r petitioner,except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes Ofthis ssction.”(§65589.5,subd.(k)(1)(A).) The City here fails t0 carry its burden 0f establishing compliance with the HAA.For the reasons articulated above,its claim 0f incompleteness 0f Developer’s SB 35 application is not persuasive.The City does not provide reasoned legal analysis t0 support the conclusion that the application was incomplete within the meaning 0f the HAA.And for the reasons previously articulated with respect t0 seCtion 6591 3.4,the City also did not provide a code~compliant notice 0f inconsistancy under section 65589.5.And even in the final resolution adopted by the City 24 This standard is similar t0 the abuse 0f discretion standard ordinarily applicable in all manner 0f administrative mandamus proceedings.(See Kaine]Gardens,supra,3 Cal.App.5th at p.937,citing Code Civ.Proc.,§1094.5,subd.(b).) 25 “For purposes 0fthis section,‘bad faith’includes,but is 1101;limited t0,an action that is frivolous 01‘otherwise entirely without merit.”(§65589.5,subd.(1).) 3 8 ORDER GRANTING PETITIONS FOR WRIT.OF MANDATE b.) LII OOOONQ 12 13 14 15 16 17 18 19 '20 21 22 23 25 26 27 28 Council,the City did not make statutorily required findings sufficient t0 rej ect 01‘require modification of the project under the HAA.Accordingly,the City also does not establish that it complied with the HAA. In reaching this conclusion,the Coum further finds that the City acted in bad faith as defined in the HAA because its denial was entirely without merit.The City‘s denial letter and the record before the Court do not reflect that the City made a benign error in the course 0f attempting,in good faith,t0 follow the law by timely explaining to Developer just how its project conflicted with obj active standards in existence at the time 0r by trying to make findings that resemble what the law requires.Instead,in addition t0 tactics such as demanding an administrative appeal 0n less than one day’s notice and using strained constructions and textual interpretations t0 assert that Developer had presented two applications that had t0 be withdrawn, the City denied the streamlining application with a faciafly deficient letter and later adopted a resolution enumerating insufficient reasons for the denial.So,in addition to the fact that section 65913.4 warrants a writ directing the City t0 issue the permit,its conductjustifies the same relief under section 65589.5,subdivision (k)(1)(A)as well. C.Scope QfRelief Because the Court concludes that the City violated section 65913.4,the Density Bonus Law,and the HAA,petitioners are entitled t0 writ relief.Nevertheless,the panics dispute and addressed in supplemental briefing the nature and scope 0f relief that should be awarded. Petitioners ask the Court t0 provide relief under all three statutes,While the City argues the Court should solely order relief under section 6591 3.4 because additional statutory reliefis duplicative. While the Court agrees that there is some overlap in the relief afforded by each separately applicable statute and that all three statutes warrant the same substantive 0utcome—~aff0rding relief in mandate—the Court rejects the City’s claim that the relief afforded by each statute is entirely duplicative.For example,as the City acknowledges,the Density Bonus Law and HAA authorize an award 0f attorney fees and costs.Even accepting the City’s suggestion that the Court fix the amount 0f such fees and costs at a later date,this fact does not obviate the need for the Court t0 rule 0n these statutory bases as a prerequisite for a later motion for attomey fees 39 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE DON \QOONJQUI-b under either statute.Also,the HAA gives the Court continuing jurisdiction over statutory enforcement mechanisms,which may include fines for noncompliance.The additional remedies for enforcing the HAA are not duplicative.And,arguably,the Court must award relief under the HAA now as a prerequisite for any later enforcement measures that may be necessary even accepting,as the City points out,that the time for such enforcement has yet t0 arrive.Ultimately, the City does not identify any legal basis for refusing t0 grant relief under all three statutes.For these reasons,the Court accepts petitioners’argument that relief under each statute is warranted. The Court holds that Developer’s proj ect was deemed t0 comply with applicable standards under SB 35 and that the City must rescind its decision t0 deny and instead approve and permit the project at the requested density.The parties agree that this directive t0 rescind the existing decision and pemlit the pl‘oj ect within 60 days,as compared t0 remanding the matter for further consideration,is the appropriate course 0f action.(City’s Supp.Brief at p.8.)T0 the extent petitioners seek relief other than a writ and declaratory judgment,including attorney fees, costs,and additional fines 01‘penalties,the pafiies agree that such matters will be resolved by post-judgment noticed motion (for attorney fees 01‘t0 tax costs)and,as for the penalties,further proceedings should they become necessary. Finally,the Court declines t0 issue a declaratory judgment.It is true that because declaratory relief is a cumulative remedy “a proper complaint for declaratory relief cannot be dismissed by the trial court because the plaintiff could have filed another form 0f action.” (Californiansfor Native Salmon Assn.v‘Department ofForestry (1990)221 Cal.App.3d 1419, 1429.)And there is no categorical prohibition 0n joining a complaint for declaratory relief with a petition for writ 0f mandate;in appropriate circumstances,this is permissible.(Gong v.City 0f Fremont (1967)250 Cal.App.2d 568,574.)That said,when challenging an action under Code 0f Civil Procedure section 1094.5fla decision in a particular instance as compared to a policy 0r ordinance standing alone—mandamus relief is typically the exclusive remedy and declaratory relief is not additionally available 01'necessary.(Stare ofCa].v.Super.Ct.(1934)12 Cal.3d 237, 251—252;see also Selby Really C0.v.City OfScm Buenaventum (1973)10 Cal.3d 110,126427 [declaratory relief not proper vehicle for challenging denial 0f building permit].)In actuality,in a 4O ORDER GRANTING PETITIONS FOR WRIT OF MANDATE \OOOQONU‘I-PWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .26 27 hybrid proceeding,declaratory relief may be sought t0 test the constitutionality 0r legality of an ordinance 01‘policy 0n its face with an accompanying request for a writ 0f mandate directed to the agency’s application 0f that ordinance 0r policy t0 the petitioner in particular.(Gong,supra, 250 Cal.App.2d at p.574.)Here,petitioners d0 not seek a declaration 0f the validity 0f the City’s policies,interpretation 0f the law,0r zoning ordinance;rather,they seek a declaratory judgment stating the City must issue the streamlined permit Developer applied f01'.26 In other words,they simply seek a duplicative declarafion requiring the City t0 perform its duty and issue the permit. The problem is not simply that the declaratory relief requested is duplicative,but rather,that the relief sought is a proper subject of mandamus and it does not encompass a question 0f validity or constitutionality that typically warrants additional declaratory relief in a mandamus proceeding. Accordingly,the Court exercises its discretion under Code 0f Civil Procedure section 1061 and declines t0 provide declaratory relief that would be duplicative 0f that already being provided in mandate. IV.Conclusion The petitions for writ ofmandate are granted,and judgment will be entered consistently with this Order.Petitioners are prevailing parties for purposes 0f costs 0f suit under Code 0f Civil Procedure section 1032,which costs would be claimed post-judgment by timely filed memoranda and which are subj ect t0 striking and taxing according t0 law.The judgment t0 be entered will direct the issuance of a peremptory writ 0f mandate commanding the relief contemplated in this Order and consistently with its analysis and conclusions.Counsel for petitioners have already collectively proposed a form ijudgment and a form 0f writ t0 be issued,which they submitted with their post-hearing briefing.Counsel for petitioners are directed to provide those separate documents t0 the Court in Word format by email t0 Department}O@scscourt.0rg within 10 days 0f service 0f this Order,with copy t0 counsel for the City.Counsel for the City is t0 submit any obj actions as t0 the form 0f the proposed judgment 26 The Court notes that in Petitioners”supplemental brief 0n the scope 0f relief and in their proposedjudgment,they elaborate 011 the declaratory relief sought in their pleadings. 41 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE l\) \Ooofloxmam 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2’7 28 and proposed writ within 20 days from service of this Order,with coufiesy copy t0 the Court at the same email address and copy t0 counsel for petitioners. IT IS SO 0RD D. Date:Aprilétf2020 HELEN E.L S Judge 0f the Superior Court 42 ORDER GRANTING PETITIONS FOR WRIT OF MANDATE