The Housing Accountability Act Is Strong Medicine Against NIMBYISM

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The Housing Accountability Act Is Strong Medicine Against NIMBYISM

The Housing Accountability Act (“Act”) has been on California’s books since 1982, but has been getting more attention in recent years, starting with a 2013 court ruling that the Act applies to market-rate housing projects, and continuing through the Legislature strengthening the law every year from 2016 to 2020.  The effects of these actions can be seen in the recent court decision in California Renters Legal Advocacy and Education Fund v. City of San Mateo (California Court of Appeal, Case Nos. A159320, A159658), which held the City of San Mateo (“City”) improperly denied a ten-unit multifamily building (“Project”).  The opinion provides a template for determining if a development standard is objective and can be imposed on a housing project, as well as eliminates the argument that the Act does not apply to charter cities. 

The Act provides that when a proposed housing development complies with applicable, objective general plan, and subdivision standards and criteria, including design review standards, the local agency may disapprove the project (or approve it on the condition that it be developed at lower density) only if the local agency makes written findings that the project would have a specific, adverse, and unavoidable impact on public health or safety.  Under the Act, a housing development project must “be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person” to reach that conclusion.  The Legislature also warned that the Act “should be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”  

Even though the Project complied with the applicable high-density multifamily dwelling General Plan designation and zoning, the City Planning Commission denied the Project because it was “not in scale” and “not harmonious with the character of the neighborhood.”  In particular, the Planning Commission found that, due to a two-story difference between the Project and its neighbors on one side, the Project did not comply with the City’s design guideline imposing certain design requirements if there is more than a one-story variation in height between adjacent buildings.  The Project proponent appealed to the City Council, but the City Council affirmed the Planning Commission’s denial.  The Project proponent sued the City for violating the Housing Accountability Act. 

Surprisingly, the trial court ruled against the Project proponent.  Despite the clear direction of the Legislature, the trial court held that the Project did not meet an objective design standard.  The trial court also held that the Act was an unconstitutional infringement on charter cities’ ability to regulate property. 

The Court of Appeal reversed the trial court’s ruling, finding that the City’s design guideline for adjacent buildings of different heights is not objective, that the Act is constitutional, and that the Act applies to charter cities.  As the Court properly noted, the design guideline at issue required a transition or step back and did not specify how much of a setback was required.  Thus, reasonable people could (and in this case did) disagree, with planning staff finding the Project provided an appropriate transition and the Planning Commission and City Council disagreeing with planning staff. 

The Court of Appeal also found the Housing Accountability Act constitutional for several reasons.  First, the Act is constitutional because it addresses an issue of statewide concern—a housing shortage—in a manner reasonably related and narrowly tailored to providing additional housing.  Thus, it does not violate a charter city’s right to home rule because it does not “wrest control from local governments so much as require them to proceed by way of clear rules adopted in advance, rather than by ad hoc decisions to accept or reject proposed housing.”  Second, the Act does not improperly delegate the power to perform municipal functions because a local jurisdiction retains the right to make final decisions on housing projects under the Act.  Third, the Act does not violate the due process rights of land owners near a housing project since those owners retain an opportunity to be heard at hearings considering the housing project, as well as at hearings regarding General Plan and zoning updates. 

The opinion is a big win for housing advocates, providing strong legal support that the Act applies to all California cities and should be interpreted to give the fullest possible weight to the approval of housing.  While cities and counties retain discretion to decide where to zone for housing, the Act requires cities and counties to implement the housing plans they adopt.  Unlike land use laws that give local agencies deference to interpret their plans, the Act removes the need for interpretation because under it, only objective standards apply.  This is one reason the Act is not toothless; instead, as the court noted, the Act is “strong medicine precisely because the Legislature has diagnosed a sick patient.”  This medicine will not heal California’s anemic housing production overnight, but offers a boost to those seeking housing approvals to aid in the housing recovery.

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