HomeMy WebLinkAbout7.1 SB 343February 20, 2018
SB 343
Senate Bill 343 mandates supplemental materials that
have been received by the City Clerk’s office that relate to
an agenda item after the agenda packets have been
distributed to the City Council be available to the public.
The attached documents were received in the City Clerk’s
office after distribution of the February 20, 2018, City
Council meeting agenda packet.
Item 7.1
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February20, 2018
By Email: council@dublin.ca.gov
Mayor David Haubert
Dublin City Hall
100 Civic Plaza
Dublin, CA 94568
Re: Ashton at Dublin StationProject
Honorable Mayor and Members of the Dublin City Council:
This firm represents Ashton at Dublin Station, LLC (“Applicant”) regarding the land use
entitlements for the proposed Ashton at Dublin Stationproject (“Project”), a 220-unit transit-
orientedresidentialdevelopment including 22permanently affordable housing units.
The Project’s compliance with applicableland use plans has been thoroughly described in
staff reports, atthree Council meetings (December 5, 2017, January 9, 2018 and February 6,
2018) and in one-on-one discussions with four out of five Council members. The Applicant
appreciates the Council’s feedback regarding the Project, and has modified Project plans
based onthat feedback, most notably reducing the number of 3-bedroom units.
In light of questionsraised by Council members regarding the Project’s vested rights, the
legal limitations on the Council’s discretion regarding the Project, and the potential outcomes
if the Council voted to denytheproposed entitlements, the purpose of this letter is to ensure
that all questions have been fully addressed, and to describe the legal, policy, and fiscal
reasons that the Council should approvethe Project at its February20, 2018meeting. We
recognize you will primarily look to your City Attorney and staff for advice. However,
because of the seriousness of this matter, we know it is incumbent on us to directly identify
our issues before you make your determination.
I. EXECUTIVE SUMMARY
The Applicant purchased the Projectsite, and invested significant resources in developing
this Project, in large part because the City entered a development agreement (“DA”) for the
Dublin Transit Center granting vested rights for exactly the type of high-density residential
development the Applicant is proposing. If the City were to deny the Project in breach of the
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DA—and in conflict with its own General Plan, Specific Plan, and zoning ordinance—it
would lead to certain litigation and material financial exposure for the City.
The Applicant prefers collaboration to confrontation and continues to hope that the Project
will be allowed to move forward in accordance with its vested rights. But if forced to resort
to litigation, the Applicantwould be able to seek various legal and equitable remedies. The
Applicant may enforcethe DA in a civil contract action, and/or seek a writ of mandate to set
aside the City’s denialsunder the Housing Accountability Act (“HAA”). The City would
also run a high risk of suit underthe HAA by a third-party housing organization.
Because the Projectcomplies with the DA and objective land use standards in effect, and
because the Legislature has directedthe courts not to give deference to cities when they deny
housing developments, the likely results would include a court order to approve high-density
housing on theProjectsite—the same outcomebefore you today—but atthe added cost of
attorneys’ fees, defense costs, and monetary damages. These costs to the City could be
substantial: for example, a 2010 Court of Appeal decision relating to breach of a DA resulted
in an award of $43 million against the Town of Mammoth Lakes, which was also required to
pay the developer $2.4 million in attorneys’ fees plus its own legal defense costs. In
neighboring Pleasanton, you may already appreciate that long-running litigation over the
city’s failureto allow for high-density housing in its Housing Element resulted in an
attorneys’ fee award of $1.9 million.
Additionally, in light of very recent and ongoing efforts by the California Legislature to both
address a statewide housing crisis and promote transit-orienteddevelopment, a decision to
deny this Project also may result in an alternative higher density developmenton the site in
the long run. If this proposed Project is not approved, the Applicantor a future developer
couldapply for a project with greater density underthe Density Bonus Law, recently enacted
SB 35, or even pending legislation such as SB 827. If an applicant proceeded under any of
these laws, the City could end up with no discretionover development of the site, regardless
of design, and quite possibly more newunits than the currentProject.
The prudent course of action is for the City to honor its contracts, uphold its own land use
plans, and follow the law byvotingto approve the remaining entitlements for this Project.
II.THE PROJECT HAS A VESTED, CONTRACTUAL RIGHT TO DEVELOP
AT ITS CURRENT DENSITYAND HEIGHT.
A. DevelopmentAgreements Are Enforceable Contracts.
In response to a controversial Supreme Court decision addressing common law vested rights
Avco Community Developers, Inc. v. S. Coast Regional Comm’n, 17 Cal. 3d785 (1976)),
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the Legislature in 1979 adopted statutory procedures for creating and enforcing DAs. The
DA statutewas based in parton a finding that:
t]he lack of certainty in the approval of developmentprojects can result in a
waste of resources, escalate thecost of housing and otherdevelopment to the
consumer, and discourage investment in and commitment to comprehensive
planning whichwould make maximum efficient utilization of resources at the
least economic cost to the public.
Gov’t Code § 65864(a). The Legislature further declared that by providing assurance that a
projectmay proceed in accordance with existing land use policies, DAs “strengthen the
public planning process, encourage private participation in comprehensive planning, and
reduce the economic costs of development.” Id. at (b).
Accordingly, DAs are “enforceablecontracts” between municipalities and developers.
Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes, 191 Cal. App. 4th 435,
442 (2010) (“Mammoth Lakes”); see also Dublin Muni. Code § 8.56.110(H) (“[a]
development agreement is a contractthat is negotiated and voluntarily entered intoby City
and Developer …”). The defining feature of a DA is that the rules, regulations, and official
policies regarding permitted uses, density, design, and construction of a development are
those in effect whenthe parties executed the agreement, unless otherwise provided in the
agreement. See Gov’t Code § 65866; City of W. Hollywood v. Beverly Towers, Inc. 52
Cal.3d 1184, 1193, fn. 6 (1991). Additionally, DAsallow municipalities to require
developers to construct publicfacilities, and/or provide other specified community benefits
as “consideration” for the development rights conferred. See Gov’t Code § 65865.2. As
such, DAs may “give both parties vested contractual rights,” notwithstanding any change in
applicableland use policies. Mammoth Lakes, 191 Cal. App. 4th at 444; Gov’t Code
65865.4.
B. The Transit Center Development Agreement Is Binding andEnforceable.
By voluntarily entering the DA, the City agreed to provide a “vested right to develop the
Dublin Transit Center Project” in accordance with theGeneral Plan, the Eastern Dublin
Specific Plan, Tentative Parcel Map 7892, and the Stage 1 PDZoning for the Dublin Transit
Center. DA § 5.1; 7.1; Recital C. These vested rights expressly protect against the risk that
the City’s voters or elected officials could later decide to adopt a building moratorium or
restrict the rate of development at the Transit Center: such a restriction “shallnot apply” to
the Transit Center or anyproject pursuant to the vested approvals. DA § 8.1
1 The only exception that would allow such a moratorium or restriction to apply to the Transit Center, which is
notrelevant here, is a declaration of a local emergency or state emergencypursuant to applicable law.
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While the language of the DA speaks for itself, the City’s course of conduct over the past 15
years has also consistently demonstrated that it views the DA as valid, binding and
enforceable. Since 2003, the City has approved every development project proposed within
the Transit Center as consistent with the vested entitlements, and every year—including in
September 2017—the City Council has accepted the annual review reportsubmitted for the
Transit Center finding that the DA remains in full force and effect. During that period, the
City has also accepted all of the benefits of the contract, including extensive public open
space improvements, public art, and affordable housing provided throughout the Transit
Center, and $100,000 per year in cash payments to extendthe DA’s termover the last ten
years, including a payment in March 2017.
C. The Project Complies with the Development Agreement.
As described in reports prepared by City Planning staff, the Projectconforms to the DA and
all vested entitlements. The Applicant previously detailed the Project’s conformance to all
objective DA standards, including residentialdensity, in a letter dated January 9, 2018
included as Attachment A). Of note, with construction of theProject’s 220 units, the total
across Site A would be 384 units, well below the vested density of 430 units. While the City
has the right to ensure thatProject plans meet the spirit and intent of the DA, it cannot
lawfully exercise its discretion in a way that frustrates the purpose of thatcontract.
The Mammoth Lakes case is instructive. There, the Town entered a DA granting the
developer vested rights to build andoperate residentialcondominiums and a hotel. 191 Cal.
App. 4th at 453. After the Town “changed itspriorities” regarding thepreferred uses for the
site (id. at 440), the Town then failedto issue discretionary project-level approvals, claiming
that Federal Aviation Administration restrictions prohibited the project. Id. at 458-59.
However, the court held that the Town violated the DA by withholding approvals—even in
the absence of a formal action from the Townto denythe project—and upheld a jury award
of $30 million in damages (increased to $43 million with inflation 2). Id. at 476.
In Santa Margarita Area Residents Together v. San Luis Obispo Cty., the Second District
Court of Appeal upheldthe validity of a DA for a development including 550 residential
units, againstchallenges that the agreement wasan unconstitutional surrender of the county’s
right to exercise its discretionary police powers. 84 Cal. App. 4th 221, 230 (2000). The
decision suggests thatcourts will liberally construethe DA statute to enforce DAs as a
legitimate exercise of governmental police power in the public interest.” Id. at 233, 229.3
2 See http://www.nytimes.com/2012/04/14/us/mammoth-lakes-calif-faces-bankruptcy.html. As a result of this
award, the Town filedfor Chapter 9 bankruptcy protection. The Town subsequentlysettled with the developer
and the bankruptcyaction was dismissed. See http://www.ci.mammoth-lakes.ca.us/documentcenter/view/3467.
3 See also Citizens for Responsible Gov’t v. Cityof Albany, 56 Cal. App. 4th 1199, 1215 (finding a DA that
contains the required contentshould “be construed consistently with that statute” and upheld).
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Because of the binding assurances the City provided in the DA, and the City’s course of
conductdemonstrating the DA’s ongoing validity, the Applicant has relied on the contract
and made substantialinvestments in acquiring thesite and developing the Project. In
addition, the Applicant continues toincur ongoing costs of holding the property. Like any
business, the Applicant must take steps to protect its investment, and if the City breaches the
DA, Developer will have no choice but to enforce it in court. As an action to enforce a
contract, this would likely take the form of civil litigation rather than a writ of mandate
action, which is more typical in land use cases. See Mammoth Lakes, 191 Cal. App. 4th at
457. Accordingly, a plaintiff developer suing for injury resulting from a contract breach may
use the full range of discovery devices against a city, including depositions of elected
officials and city staff.
These factors contribute to a city’s cost of defending a contract breach lawsuit. If the
Applicant is forced to obtain a courtjudgment to enforce the DA, the City would be
obligated to pay attorneys’ fees to the Applicant, in addition toits own defense costs. DA
23. Although it is not possible at this pointto estimate what these fees would be, it should
be notedthat the Mammoth Lakes case upheld a decision that the Town must pay the
developer nearly $2.4 million in attorneys’ fees. Additionally, although staff has represented
to the Council in a February 20 staff report that the DA “does not allow monetary damages
against the City,” the cited provision of the DA is likely to be unenforceable on the basis of
the City’s illegal breachand/or if it prevents the Applicant from being made whole. See,
e.g., Civil Code § 1668. The Applicant would seekdamages as necessary to ensure it is
made whole following any breach by the City, including lost profits, as were awarded to the
Mammoth Lakes developer.
Separately, we imagine your City Manager and finance team may have thoughts aboutthe
indirect costs to the City should it be perceived in the investment and development
community to renege on its contracts.
III.DENIAL OF THE PROJECT WOULD VIOLATE THE HAA.
A. The HAA Is Intended to Address a Statewide Housing Crisis.
Independent of the commitments it made in the DA, the City lacks discretion to deny
the Project under the Housing Accountability Act (“HAA”), Gov’t Code § 65589.5.4 In
4 In addition, while both the DA and HAA claims are independently sufficient to compel approval of the
Project, denial of the Project would likely violate other provisions of the Planning and Zoning Law relating to
consistent application of zoning requirements, Housing Element provisions, etc. The Applicant reserves its
rights to assert these and other legalclaims as appropriate.
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adopting recentamendments to the HAA as part of a broad package of policies designed to
promote housing supply and affordability, the Legislature made new findings that
California has a housing supply and affordability crisis of historic
proportions. The consequences of failing toeffectively and aggressively
confront this crisis are hurting millions of Californians, robbingfuture
generations of the chance to call California home, stifling economic
opportunities for workers and businesses, worsening poverty and
homelessness, and undermining the state’s environmental and climate
objectives…
TheLegislature’s intent in enacting this section in 1982 and in expanding
its provisions sincethenwas to significantly increase the approval and
construction of new housing for all economic segments of California’s
communities by meaningfully and effectively curbing the capability of
local governments to deny, reduce the density for, or render infeasible
housing development projects and emergency shelters. That intent has not
been fulfilled…
It is the policy of the state that this section should be interpretedand
implemented in a mannerto afford the fullest possible weightto the
interest of, and the approvaland provision of, housing.
Gov’t Code § 65589.5(a)(2) (effective January 1, 2018, emphasis added).
B. Local GovernmentsHave Very Limited Discretion to Deny Zoning-
Compliant Housing Projects.
To effectuate this legislative purpose, the HAA greatly limits a local government’s discretion
regarding many housingdevelopmentprojects. Under the HAA, a local government agency
generally cannotdisapprove a housing development project, or require a reduction in density,
if the project complies with applicable and objective General Plan, zoning, and design review
standards. Gov’t Code § 65589.5(j). The only exceptions are when theagency finds both
that (1) thehousing project would have a specific adverse impact on public health and safety,
and (2) there is nofeasiblemethod to mitigate oravoid the impact. These impactsmust be
based on objective and identified writtenpublic health or safety standards, conditions, or
policies as they existed on the date the application was deemed complete. Gov’t Code
65589.5(j)(1); see Honchariwv. County of Stanislaus, 200 Cal. App. 4th 1066 (2011).
The2017 amendments to the HAA clarify that a housing development project “shall be
deemed consistent, compliant, and in conformity with an applicable [objective standard] if
there is substantial evidence that would allow a reasonable person to concludethat the
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housing development project … is consistent, compliant, or in conformity.” See
65589.5(f)(4) (emphasis added). The “reasonable person” provision narrows the definition
of an objective standard, and “require[s] courts to give less deference to a local government's
consistency determination.”5 The author of this legislation described the need for this
provision as follows:
The HAA's intentis to provide appropriate certainty to all stakeholders in
the local approval processand prevent NIMBYism (Not In My Back yard)
from successfully pressuring local officials to reject or downsize
compliant housingprojects. Unfortunately, NIMBY forces often mobilize
anti-housing sentiment, and local governments thenrefuse to extend the
HAA's protections to projectsthat could reasonably be found to be
consistent with the local planning rules. This creates far too much latitude
for anti-housing and development sentiments to thwart reasonable and
much needed housing.6
Additionally, the amendments increase the burden of proof on local governments when
denying a housingdevelopment project: a local agency’s findings must be based on a
heightened “preponderance of theevidence” standard rather thanthe more deferential
substantial evidence” standard common in the land use context. Gov’t Code
65589.5(j)(1). Similar to the purpose of the “reasonable person” language, the
preponderance of evidence standard is intended “to address the severity of California’s
housing crisis by taking a criticallook at cities approval processes for development. State
courts are often too deferential to localities in accepting any justification declaring a
development infeasible.”7
The HAA providesthat a reviewing court “shall” award attorneys’ fees to plaintiffs or
petitioners if the court finds that the local agency violated the HAA by disapproving or
reducing the density of a housing development project. Gov’t Code § 65589.5(k)(1). As with
a contractaction, such fees can easily reach tens of thousands of dollars, even with relatively
quick settlement, and protracted litigation may result in six- or seven-figure fee awards
against a non-compliant city. In a telling (non-HAA) case, in litigation regarding the city’s
failure to allow high-density zoning under its Housing Element, the City of Pleasanton
agreed to pay $1.9 million in attorneys’ fees in a settlement withplaintiff housing
advocates.8
5 AB 1515 (Daly), Assembly Floor Analysis, September 15, 2017.
6 Id.
7 SB 167 (Skinner), Senate Floor Analysis, September 15, 2017.
8 “Pleasanton reaches settlement over housing cap lawsuit,” East Bay Times, July 16, 2010,
https://www.eastbaytimes.com/2010/07/16/pleasanton-reaches-settlement-over-housing-cap-lawsuit/.
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The recent HAA amendments also requirethat a court “shall impose fines on a local agency”
upon a determinationthat the agency failedtocomply with an order or judgment compelling
compliance with the HAA. Gov’t Code § 65589.5(k)(1)(B)(i). The fine shall be in a
minimum amount of $10,000 per housing unit in thehousingdevelopment project on the date
the application was deemed complete. Further, if a court determines that its order or
judgment compelling a local agency tocomply with the HAA has not been carried out within
60 days, the court may issue orders that judicially approvethe housingdevelopment project
application as proposed by the applicant. Id. at (k)(1)(C).
C. The Project Complies with all ObjectivePlanning and Zoning Standards.
The Project is exactly the type of residentialdevelopment the HAA is designed to foster. As
summarized in Attachment A, a reasonableperson would conclude that the Project conforms
to the “applicable, objective general plan, zoning, and subdivision standards and criteria,
including design review standards” in effect at the time that the Project’s application was
determined to be complete. Gov’t Code § 65589.5(j)(1); 65589.5(f)(4)).
1.The Record Demonstrates that a “Reasonable Person” Would
Find Conformance to Existing Plans.
The evidence in the public record before the City Council (and that would be before a
reviewing court) provides ample basis for a reasonable person to concludethat the Project is
consistent with the General Plan, Specific Plan, and Stage 1zoning for the Transit Center.
For example:
The CEQA analysis prepared in support of the application concludes that “The
proposed project would be consistent with environmental goals and policies
contained in the City’s General Plan,” and thatthe Project “would not exceed the
allocation of residential units envisioned for Site A nor the greater Dublin Transit
Center Project.”9
The staff report prepared for the November 14, 2017 PlanningCommission
concluded that the Project “is consistent with the land use designation and zoning,”
and that it “has been designed to be compatible with adjacentand surrounding
development,” based on review of applicable standards.
ThePlanning Commissionunanimously votedonNovember14, 2017 to recommend
approval of the Stage 2 zoning and related entitlements on the basis thatthe proposal
is consistent with all applicable land use policies.
9 Ashton Dublin Station CEQA Analysis, November 8, 2017, at 31-32.
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February20, 2018
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The staff report for the February20, 2018meeting continues to recommend approval
of the Stage 2zoning, SiteDevelopment Review, and Tentative Map for the Project,
based on detailed draftfindings describing the Project’s conformance to standards.
City Planning staff have followed the direction provided by the Council at its December 5,
2017meeting to return with a resolution supporting denial of theProject. This “Alternative
Action” would be based on the premise that the Project’s density exceeds the density allowed
under the Phase 1 zoning. Staff does not recommend adoption of this denial resolution, and
goesso far as to acknowledge in the draft resolution that the only objective density standard
applies across Site A as a whole—which will remain below approved levels even with the
Project. The draft resolution also makes vague references to height, size, mass, and
architectural character,” which are not supported by factual analysis or reference to
objective standards. However, even if staff were able to provide some justification for a
denial, it would not overcome the fact that areasonable person would reachan opposite
conclusion. Indeed, adopting the denialresolution would require the Councilto find that the
City’s own professional Planning staff and Planning Commissioners do not represent
reasonable people.
Even under a deferential “substantialevidence” standard, it is highly questionable whether
thecourts would defer to the level of cognitive dissonance needed to support denial of the
Projecton the stated grounds. The HAA providesno suchdeference.
2.Stage 2 Zoning Cannot Be an Excuse toAvoid the HAA.
The “Alternative Action” described in the February 20, 2018 staff report also suggests that
the HAA may not apply to the Project because the City has notyet granted “Stage 2” PD
zoning approval. This is demonstrably false. The HAA contemplates that local governments
may pointto subsequent discretionary approvals as a reason to deny conforming residential
developments, and is intended to prevent this conduct. This is precisely the reason that the
HAA focuses on ensuring thatprojects comply with the “applicable, objective general plan
and] zoning” standards that do exist: so that local governments cannot use subjective,
discretionaryfactors to justify a denial.10 In Honchariw, the county argued (like the City
suggests here) that it couldavoidmaking HAA findings because separate findings still had to
be met for the project’s tentative map. The Court of Appeal expresslyrejected this
argument. 200 Cal. App. 4th at 1078-79.
If the HAA were interpreted to allow cities to circumvent its requirements simply by calling
a project-level approval “rezoning” instead of the more common “use permit,” “development
10 See also Santa Clara Superior Court, Case No. 16CV300733, June 14, 2017,
https://www.losgatosca.gov/DocumentCenter/View/19664 (Decision and Judgment Granting Writof
Mandamus), at 3.
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February20, 2018
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plan,” or similar terms, this would createa massive loophole to undermine the HAA, and the
Legislature’s policy directive to interpret and implement the law “toafford the fullest
possible weight to theinterest of, and the approval and provision of, housing.” Id. §
65589.5(a)(2)(L); Sequoyah Hills Homeowners Ass’n v. City of Oakland, 23 Cal. App. 4th
704 (1993) (noting that the HAA “is not a legislative will-o’-the-wisp” and citing legislative
findings regarding the lack of affordable housing throughout the state).
D. City Denial of the Project Would Violate the HAA.
Accordingly, to support a denial of the Project or a reduction in its density, the City would be
required to make specific findings, supported by a preponderance of theevidence on the
record, that both (1) the Project would have a specific, adverse impact upon public health or
safety—based on objective, identified written standards in effect on the date the application
was deemed complete—and (2) no otherfeasiblemethod exists to satisfactorilymitigate or
avoid that adverse impact. Id. § 65589.5(j)(1).
The City has not attempted to make such findings, likely because no such evidence exists, let
alone a preponderance of evidence. The unsubstantiatedconcerns, stated by individual
residents, that this Project would exacerbate school crowding impacts do not come close to
demonstrating a public health or safety impact within the meaning of the law. Under the
school mitigation agreement that applies to the Project, the Applicant must payspecified
school mitigation fees for each residential unit. In entering this agreement, the Dublin
Unified School District expressly found that such payment “will fully mitigate Developer’s
impact on the school facilities of the District for the [Transit Center] Project.”11 Moreover,
the City’s CEQA analysis for theProject finds that “No new impacts to school service are
anticipated,” because payment of school impact fees
will provide mitigation of educational impacts of the proposed project
pursuant to State law. The [Project] would result in fewer school-aged
children to be accommodated in DUSDfacilities than was assumed in the
Dublin Transit Center EIR (1,451 units, 49 units less than the total
allocation of 1,500 units) and mitigation of impacts is limitedby statute to
payment of impact fees to the School Districtby the project Applicant.12
In short—andeven assuming it is proper for the City to base its decisionon impacts within
the purview of another governmental agency, DUSD—the only evidence in the
administrative record leads to the conclusion that the Project will have no newimpact on
school services beyond the level of growth that has been long planned at the site, and no
11 Agreement for the Mitigation of Development Impacts Upon the School Facilities of the Dublin Unified
School District, effective date May 10, 2005.
12 Ashton at Dublin Station CEQA Analysis, November 8, 2017.
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evidence has been put forward of any other public health or safety impact. The City cannot
legally make findingsto denythe Project under the HAA. See Sequoyah Hills Homeowners
Ass’n v. City of Oakland, 23 Cal. App. 4th 704, 715-16 (1993) (upholding the city’s rejection
of a reduced densityalternative on thegrounds that it was legally prohibited under the HAA;
the city couldnot make anadverse health and safety finding when there “is no evidence to
support such a conclusion.”)
Because the City has not proposed findings to support a denial of the Project, and because it
cannot legally make such findings under the HAA, the Applicant or third-party housing
organizations would be entitled to seek relief in state court.
E. Cities Throughout the Bay Area Are Facing HAA Lawsuits for Improper
Denial of HousingProjects.
Advocacy groups and developershave recently brought multiple such lawsuits to enforce the
HAA where local governments have denied or attempted to reduce the density of residential
projects. A lawsuit filed by a renters’ advocacy group (San Francisco Bay Area Renters’
Foundation) against the City of Berkeley resulted in a stipulated settlement approving a
housingdevelopmentthatthe city council had previously denied, without making required
findings, in violation of the HAA.13 Subsequently, the city refused to issue a demolition
permit for the site—a necessary prerequisite to enable new construction. In a court order
granting the petitioners’ motionto enforce thesettlement, the court rejectedthe city’s attempt
to skirt HAA requirements by denying the permit. The developmentwas ultimately approved
in September, and the city was required to pay over $50,000 in attorneys’ fees.14
The same advocacy group recently filed a petition for writ of administrative mandate against
the City of Sausalito, which denied a proposal to add a single-family dwelling to a lot that
already contained a two-unit dwelling. 15 Previously, the group sued the City of Lafayette
underthe HAA forfailing to approve a 315-unit multifamily development. (After the
developer suspended the application and instead sought a reduced density project of 45
single-family homes, a Contra Costa Superior Court judgedetermined that there was no
violation of the HAA because thedeveloper made this change voluntarily).16
13 See Berkeleyside, Sept. 8, 2017, http://www.berkeleyside.com/2017/09/08/long-legal-dispute-berkeley-
approves-application-build-3-homes-haskell-street/.
14 Theproject was featured in a December 1, 2017 New York Times article,
https://www.nytimes.com/2017/12/01/business/economy/single-family-home.html.
15 See Marin County Superior Court. Case No. CV1704052, available at
https://drive.google.com/file/d/0BwhhKmT6GBz2VjVubnEtV2lJZ2c/view.
16 See SF Business Times, Apr. 7 2017, https://www.bizjournals.com/sanfrancisco/news/2017/04/07/lafayette-
housing-lawsuit-sfbarf-sonja-trauss.html
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February20, 2018
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In 2016, the Town of Los Gatos deniedplans for a proposed development of 320 homes and
commercial development, citing community opposition and insufficient below-market rate
housing.17 In response to the project developer’s suit against the Town, aSanta Clara County
Superior Court judge orderedthe Townto set aside its denial because it failedto make
required “written findings supported by substantial evidence under Government Code
65589.5(j) of the HAA … The Town’s decision is therefore incomplete and not supported
by all necessary findings.”18 Thejudge noted that “discretionary determinations of subjective
factors in theGeneralPlan orSpecific Plancannot be the basis for disapproval of a project
underthe HAA]. The legislative purpose of the HAA and Housing Element Lawis to
alleviate housing shortageand prevent denial of housingprojects based ondiscretion,
subjectivityor local opposition.”
Although the recent spate of lawsuits has not yet resulted in published appellate court cases,
the initial results indicate the trial courts are taking seriously the Legislature’s intent to hold
local governmentsaccountable for housing production—even beforenew enforcement
teeth” were added in 2017.
IV. THE SITECOULD BEDEVELOPED WITH EVEN HIGHER DENSITY.
During the public hearings to consider the Project’s design, a handful of local residentshave
raisedconcerns regarding the Project’s density, local population growth, and school
crowding. Even assuming it would be appropriate for the City to deny the Projecton the
basis of student generation (it is not), if the City Council made a decision to deny the Project
as currently proposed, the end result could beeven more density on the Projectsite, and less
control over the specific development. Thetrend in the state Legislature—capped by
adoption of a package of 17 pro-housing bills in 2017—is to holdlocaljurisdictions
accountable to provide morehousing, at higher densities, at a range of affordability levels,
and close to transit.
A. Additional Density Is Available Through the Density Bonus Law.
The California Density Bonus Law (“DBL”) provides a non-discretionary bonus of up to
35% increased density if the proposed project contains a certain percentage of below-market
rate units. Gov’t Code § 65915. Additionally, developers may request incentives,
concessions, and waivers of development standards (such as height) which cities are required
to accommodate, in order to encourage the creation of affordable housing under the DBL. Id.
17 See The Mercury News, Sept. 2, 2016, https://www.mercurynews.com/2016/09/02/los-gatos-town-council-
rejects-proposed-north-40-development/.
18 Santa Clara Superior Court, Case No. 16CV300733, June 14, 2017,
https://www.losgatosca.gov/DocumentCenter/View/19664 (Decision and Judgment Granting Writ).
Mayor David Haubert
February20, 2018
Page Thirteen
sf-3866739
As required underthe DBL, Dublin has adopted its own Density Bonus regulations mirroring
the state law, in Chapter 8.52 of the Dublin Municipal Code. Because of the existing vested
rights under the DA, the Project did not take advantage of availabledensity bonuses,
incentives, concessions, or waivers under the DBL and local regulations. However, future
projects at the site maydo so if the City were to deny this Project. The maximum remaining
byright” densityon Site A-3 is 266 units, under the existing Stage 1zoning and DA. If an
application were submitted to maximize affordable housing onsite and take full advantage of
the DBL, this could result in 35% more units—up to a total of 359, or 139more units than
the Project is seeking.
B. Ministerial Project ApprovalWould Be Required Under SB 35.
Under SB 35, adopted in 2017, cities that fail to issue enough building permits to meet their
Regional Housing Needs Allocation (“RHNA”) are subject to a streamlinedhousing
approval process for qualifying projects. Gov’t Code § 65913.4. When a development site is
zoned for residential use residential mixed-use development, or hasa general plan
designation that allows such uses, and meets other eligibility requirements, SB 35 exempts
thedevelopment from CEQA review and prohibits a city from denying the development.
Dublin has made insufficient progress towards its RHNA goals for lower-income housing
units, as announced recently by the state’s Department of Housing and Community
Development. As a result, it is subject to SB 35 for projectsthat contain 50% affordable
units andmeet other applicable requirements.19 Should the City deny the currentProject, the
City may be required to grant ministerial approval for a far denser project under SB 35.
C. Increased Density May Become Available for Transit-Oriented Housing.
SB 827, a pending bill proposed by State Senator Wiener, would provide density bonuses
and exemptions from development standards for projects within a halfmile of a major transit
stop, such as a BART station.20 As proposed, SB 827 would exempt qualifying projects
from various requirements, including maximum controlsonresidential density or floor area
ratio, minimum automobile parking requirements, design standards that restrict the
applicant’s ability to constructthe maximum number of units consistent with any applicable
building code, and maximum height limitations.”
If enacted, SB 827 would apply to development atthe Project site due to its close proximity
to the Dublin/Pleasanton BART station (entirely within ½ mile). Under the bill’s terms, it
would allow unlimited density up to 85’ height, and no minimum parking requirements.
19 SB 35 Statewide Determination Summary, http://www.hcd.ca.gov/community-development/housing-
element/docs/SB35_StatewideDeterminationSummary01312018.pdf.
20 SB 827 (Wiener), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB827.
AT
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A
February 20, 2018
City of Dublin
100 Civic Plaza
Dublin, CA
Re: Ashton at Dublin Station
Dear Dublin City Council, and City Attorney,
TheCaliforniaRentersLegalAdvocacyandEducationFund(CaRLA)submitsthislettertoinform
theDublinCityCouncilthattheyhaveanobligationtoabidebyallrelevantstatehousinglawswhen
evaluatingtheproposaltoapprovetheAshtonatDublinStationproject,includingtheHousing
Accountability Act, as amended by SB-167 (GC 65589.5).
WearedisappointedwiththeDublinCityCouncil’sactionsoverthelastfewmonths,inparticular
therepeatedappearanceoftheprojectonagendasfordiscussionbutwithoutanyvotetoapprovethismuch
neededhousing.ItgivesussomesmallreliefthattheFebruary20thcitycouncilmeetingincludesa
resolutiontoapproveinadditiontothepreviouslyproposedresolutiontodeny.Itisoftheutmost
importancethattheCityofDublinbeawareofpotentialliabilitiestheyareexposingthecitytothrough
theirvotes.DenyingazoningcompliantprojectinviolationoftheHousingAccountabilityActisonesuch
liability.
AtapreviousmeetingonJanuary9th,MayorHaubertstatedwhileonthediashisintenttoflout
statelawthroughanunlawfuldenialofthishousingproject,whilesimultaneouslyandverballyinvitinga
lawsuit.ShouldtheCityofDublinwishtopursuethiscourseofaction,CaRLAishappytoobligetheMayor’s
request.Furthermore,shouldthecitybefoundinviolationoftheHAAinacourtoflaw,thecityhas60days
tocomply.Shouldthecityagainfallshortofitsdutytocomplywiththelawwithinthattimeframe,thecourt
may impose a fine of $10,000 per unit; $2,300,000 in the case of Ashton at Dublin Station.
SpecificfindingsmustbemadeinorderfortheCitytolawfullydenythisproject.Someofthese
findings include, but are not limited to:
●Theprojectmustbefoundtohaveaspecific,adverse,unmitigatable,impactuponthepublichealth
or safety.
●A denial is required to comply with specific state or federal law.
●Inconsistencywiththecity’sadoptedzoningordinanceandgeneralplanasitexistedonthedatethe
application was deemed complete.
Nosuchfindingswerediscussedatanyofthepreviousmeetingsregardingthisproject.Instead,as
mentionedabove,MayorHaubertopenlydescribedapreferencetolegalactioninacourtoflaw.Thismakes
California Renters Legal Advocacy and Education Fund - carlaef.org
1390 Market St #200, San Francisco, CA 94102
transparentthepretextualnatureofanyproposedfindingsfordenialshouldthecityfindalegalreasonto
deny the project.
CaRLAhassuccessfullysuedthecitiesofBerkeley,Lafayette,andSausalitofortheirviolationsof
theHousingAccountabilityAct.In2017,TheHAAwasamendedwiththepassageofSB-167.The
amendmentsincludeda$10,000perunitpenaltyleviedagainstcitiesfortheunlawfuldenialofacompliant
housingproject.Inaddition,otheramendmentsweremadethatservetostrengthenitsenforcement.We
havesubstantialexperienceinsuccessfullitigationoftheHAAandarerecognizedstatewideasthe
authoritativesourceonitsapplicationtoCaliforniacities.WestronglyencouragetheCityofDublinacts
swiftly with an approval of Ashton at Dublin Station instead of following through on any sort of denial.
Sincerely,
Victoria Fierce
Co-Executive Director
California Renters Legal Advocacy and Education Fund
California Renters Legal Advocacy and Education Fund - carlaef.org
1390 Market St #200, San Francisco, CA 94102