2024-03-04 Order Granting Petitions 1750-6.pdfSuPeriprFI E D
urt °r California
County of Los Angeles
MAR 04 2024
CALIFORNIA HOUSING DEFENSE FUND v. CITY OF LA CANADA FLINTRIDGE
Case Number: 235TCP02614 (Related to Case No. 23STPCO2575]
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y: F Becerra, Dept ty Hearing Date; March 1, 2024
ORDER ON PETITIONS FOR WRIT OF MANDATE AND COMPLAINTS FOR
DECLARATORY RELIEF
Under the Housing Accountability Act (HAA), Government Code section 65589.5, a municipality
may not "disapprove" a qualifying affordable housing project on the grounds it does not comply
with the municipality's zoning and general plan if the developer submitted either a statutorily
defined "preliminary application" or a "complete development application" while the city's
housing element was not in substantial compliance with state law. (See § 65589.5, subds. (d)(5),
(h)(5), (o)(1).) This statutory provision, colloquially known as the "Builder's Remedy,"
incentivizes compliance with the Housing Element Law by temporarily suspending the power of
non -compliant municipalities to enforce their zoning rules against qualifying affordable housing
projects.
Respondents, the City of La Canada Flintridge, the City of La Canada Flintridge Community
Development Department, and the City of La Canada Flintridge City Council (collectively,
Respondents or the City) determined Petitioner 600 Foothill Owner, L.P.'s (600 Foothill)
proposed mixed -use development did not qualify for the Builder's Remedy. Petitioner 600
Foothill, Petitioner California Housing Defense Fund (CHDF), and Petitioners -Intervenors the
People of the State of California, Ex. Rel. Rob Bonta and the California Department of Housing
and Community Development (HCD)(collectively, Intervenors), d-iailenge Respondents'
decision.
The petitions are granted. The court orders a writ shall issue directing Respondents to set aside
their May 2023 decision finding 600 Foothill's application does not qualify as a Builder's
Remedy pr )ject and to process the application in accordance wi-h the HAA.
JUDICIAL NOTICE
600 Foothills Request for Judicial Notice (RJN) filed November 8. 2023 is denied as to Exhibit A
and grant nd as to Exhibits B through F. Respondents' objections to Exhibits B through F are
overruled. Respondents' objections 1 and 4 are sustained to the extent they pertain to Exhibit
A.
' All further undesignated statutory references are to this code.
Page 1 of 39
Respondents' RJN in support of its opposition to the 600 Foothill petition is granted as to all
referenced exhibits except as to Exhibits D-3, V and B6.2
500 Foothill's Reply RJN of Exhibit AA is granted
CHDF's RJN of Exhibits A through D is granted.
Respondents' RJN in support of its opposition to the CHDF petition is granted as to all
referenced exhibits except as to Exhibit D-3 and V. Except as to Exhibits D-3 and V, the
objections of Intervenors and CHDF are overruled.
For all RJNs, the court does not judicially notice any particular interpretation of the records.
Nor does the court judicially notice the truth of hearsay statements within the judicially noticed
records.
EVIDENTIARY OBJECTIONS, MOTION IN LIMINEAN❑ CODE OF CIVIL PROCEDURE SECTION
1094.5, SUBDIVISION (E)
Preliminarily, the court finds none of the parties' evidentiary objections are material to the
disposition of any cause of action or issue. The court nonetheless rules on the objections for
completeness. The court notes it is not required to parse through tong narratives with
generalized objections. The court may overrule an objection if the material objected to contains
unobjectionable material. The parties make many objections to multiple sentences where much
or some of the material is not objectionable. (See Fibreboard Paper Products Corp. v. East Bay
Union of Machinists, Local 1304, United Steelworkers ... (1964) 227 Cal,App.2d 675, 712.)
600 Foothill's Objections
Declaration of Lynda -Jo Hernandez: All objections are overruled.
Declaration of Kim Bowan: All objections arc overruled except 3, 12 and 17.
Declaration of Peter Sheridan: All objections are overruled.
Declaration of Keith Eich: All objections are overruled.
Declaration of Susan Koleda: All objections are overruled,
Declaration of Teresa Walker: All objections are overruled except 3, 11, 17, 26 and 29.
Declaration of Richard Gunter III: All objections are overruled except 5-8 and 14-20.
2 Contrary to 600 Foothill's assertion, Respondents did not request judicial notice of Exhibit A to
the Koleda declaration. 600 Foothill and Intervenors appear correct —Respondents did not
submit Exhibits D-3 or V with the Koleda declaration. Accordingly, the court cannot judicially
notice Exhibits D-3 or V.
Page 2 of 39
Respondents' Objections to 600 Foothill's Evidence
Declaration of Melinda Coy: All objections are overruled.
Reply Declaration of Garret Weyand: All objections are overruled except 3, 4, 7 and 8,1
Intervenors' Obiections
Declaration of Susan koleda: All objections are overruled.
CHDF's Objections
Declaration of Teresa Walker: All objections are overruled except 2, 4 and 6.
Declaration of Susan Koleda: All objections are overruled.
Declarations of Eich, Bowman, Gunter III and Hernandez are all overruled as discussed infra.
Motion In Limine
Respondents' Motion In Limine to Exclude Issues or Evidence (filed February 5, 2024) is denied.
Respondents do not demonstrate 600 Foothill has submitted any evidence concerning
"infeasibility" of the project that is outside of the administrative record. Respondents do not
require discovery to respond to 600 Foothill's infeasibility arguments given such arguments are
based entirely on the administrative record. (see § 65589.5, subd. (m)(1); Code Civ. Proc.,
§ 1094.5, subd. (e).)
Code of Civil Procedure section 1094.5, Subdivision (e)
Section 65589.5, subdivision (m)(1) in the HAA specifies "[ajny action brought to enforce the
provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil
Procedure...." Accordingly, the HAA causes of action are subject to the limitations on extra -
record evidence in Code of Civil Procedure section 1094.5, subd. (e). Nonetheless, the HAA
causes of action involve questions of substantial compliance with the Housing Element Law,
governed, at least in part, by Code of Civil Procedure section 1085. (See e.g., § 65587, subd.
(d)(2).) Code of Civil Procedure section 1094.5, subdivision (e) does not apply to a cause of
action governed by Code of Civil Procedure section 1085.
The parties have neglected to suggest which parts of their declarations are subject to Code of
Civil Procedure sections 1094.5, 1085 or both. The parties also have not moved to augment the
administrative record pursuant to Code of Civil Procedure section 1094.5, subdivision (e). Under
the circumstances, the court will admit and consider the parties' declarations despite the court
' The declaration is properly submitted to respond to the defense of unclean hands and
allegations of "manipulation of the HCD approval process" discussed in Respondents'
opposition brief.
Page 3 of 39
having made no order to augment the record.`' The court notes, however, even if the court
excluded all the extra-recorcl evidence submitted, including the lengthy Koleda declarations,
the result here would not change.
BACKGROUND
The Housing Element Laws
"In 1980, the Legislature enacted the Housing Element Law, 'a separate, comprehensive
statutory scheme that substantially strengthened the requirements of the housing element
component of local general plans. " (Martinez v. City of Clovis (2023) 96 Cal.App.5th 193, 221-
222 [Martinez].)
A housing element within a general plan must include certain components, including, but not
limited to: an assessment of housing needs and the resources available and constraints to
meeting those needs; an inventory of sites available to meet the locality's housing needs at
different income levels, including the Regional Housing Needs Allocation (RHNA); a statement
of goals, quantified objectives, and policies to affirmatively further fair housing; and a schedule
of actions to address the housing element's goals and objectives. (§ 65583, subds. (a), (b), (c).)
"A municipality must review its housing dement for the appropriateness of its housing goals,
objectives, and policies and must revise the housing element in accordance with a statutory
schedule. (§ 65588, subds. (a), (b).) The interval between the due dates for the revised housing
element is referred to as a planning period or cycle, which usually is eight years." (Martinez,
supra, 90 Cal.App.5th at 221-222.)
"Before revising its housing element, a local government must make a draft available for public
comment and, after comments are received, submit the draft, as revised to address the
comments, to the Department of Housing and Community Development (HCD). (§ 65585, subd.
(b)(1); see § 65588 [review and revision of housing element by local government].) After a draft
is submitted, the HCD must review it, consider any written comments from any public agency,
group, or person, and make written findings as to whether the draft substantially complies with
the Housing Element Law. (§ 65585, subds. (b)(3), (c), (d); , .)111] If the HC❑ finds the draft
does not substantially comply with the Housing Element Law, the local government must either
(1) change the draft to substantially comply or (2) adopt the draft without changes along with a
resolution containing findings that explain its belief that the draft substantially complies with
the law. (§ 65585, subd. (f).)" (Martinez, supra, 90 Cal.App.5th at 221-222.)
At the conclusion of the hearing, the parties agreed the court could consider all of the
evidence before it without regard to Code of Civil Procedure section 1094.5, subdivision (e).
See section 65580, et seq.
Page 4 of 39
The City's October 2021 and October 2022 Draft Housing Elements, and HCD's Findings the City
Had Not Attained Substantial Compliance with the Housing Element Law
Under the Housing Element Law, the City had a statutory deadl ne of October 15, 2021 to adopt
a substantially compliant 6th cycle housing element. (AR 443.) The City submitted its draft
housing element to HCD on that day. (AR 443.)
On December 3, 2021, HCD informed the City while the draft "addresses many statutory
requirements," to comply with the Housing Element Law, signif cant revisions were required.
(AR 443, 445-453.) HCD identified fourteen areas within the first version of the City's draft
housing element that required specific programmatic revisions, organized into three broad
categories —housing needs, resources, and constraints; housing programs; and public
participation, {AR 445-453.) As examples, HCD found the draft rousing element lacked a
sufficient site inventory analysis identifying potential sites for housing development distributed
in a manner to affirmatively further fair housing, or an inadequate site inventory of the City's
vacant and underutilized sites to meet the City's RHNA determination, (AR 445-447.)
Ten months later, on October 4, 2022, the City adopted its 202 .-2029 housing element
(October 2022 Housing Element). (AR 4504-4508, 4509 (Housing Element].) The City thereafter
submitted its adopted Housing Element to HCD for review. (AR 5263.)
On December 6, 2022, HCD informed the City "[t]he adopted housing element addresses most
statutory requirements described in HCD's f priorj review; however, additional revisions are
necessary to fully comply with State Housing Element Law." (AR 5263 [referencing a May 26,
2021 review],) HCD's findings of non-compliance for the October 2022 Housing Element are
discussed Further in the Analysis section infra,
600 Foothill's Preliminary Application
On November 10, 2022—after the City's adoption of the October 2022 Housing Element but
before HCD's December 6, 2022 review-600 Foothill submitted the Preliminary Application
seeking the City's approval to construct a mixed -used project on a site located at 600 Foothill
Boulevard, which is currently occupied by two vacant church buildings and a surface parking lot.
(AR 5241.) 600 Foothill proposed to build 80 apartments on the site, 16 of which (or 20 percent)
would be reserved for persons earning less than sixty percent of the area median income (the
Project). (AR 5243.) 600 Foothill's Preliminary Application explained "given that the City
continues to have a Housing Element that is out of compliance with state law," 600 Foothill
proposed the Project as a Builder's Remedy project pursuant to section 65589.5, subdivision
(d)(5) meaning the Project was not required to account for the City's zoning ordinance or
general plan land use designation. (AR 5235.)
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Page 5 of 39
The City Staff Acknowledge Changes to the October 2022 Housing Element Are Necessary to
Comply with HCD's Findings
The City's Director of Community Development, Susan Koleda, acknowledged on January 11,
2023 in an email communication that "f a]Il additional changes to the Housing Element have yet
to be determined but will likely require additional [Planning Cornmission/City Council]
approval." (AR 12894.) At the City's January 12, 2023 Planning Commission meeting, City staff
acknowledged revisions were required for "the Housing Element to be in conformance" with
applicable law. (AR 5274-5275.) Director Koleda also stated in a February 9, 2023 email
communication that "additional clarifications were required" tc the October 2022 Housing
Element, and "[t]he additional information will be incorporates into a revised Housing Element,
scheduled to be adopted by the City Council on February 21, 2023, It will then be submitted to
HCD for review as a third submittal." (AR 13011.)
The City Adopts a February 2023 Housing Element, Fails to Rezone, and "Certifies" Its
Substantial Compliance with the Housing Element Law
On February 21, 2023, the City adopted its third revised housing element which addressed the
deficiencies to the October 2022 Housing Element identified by HCD. (AR 6274-6279.) In its
resolution adopting the revised housing element, the City Council stated it "certifies that the
City's Housing Element was in substantial compliance with State Housing Element law as of the
October 4, 2022 Housing Element adopted by the City Council...." (AR 6274.) ❑espite use of
the ward "certifies" in the City's resolution, Director Koleda opined at the February 21, 2023
council meeting that the "consensus" from the City Attorney, the City's consultants, and HCD
was that "self -certification" of the City's housing element "is no an option." (AR 6207-6208;
see also Opposition to Intervenors 1918-2L7 f"wrongly accuse ... of 'back -dating' and 'self -
certifying' "].)
At the time the City adopted its third revised housing element of February 21, 2023, it had not
completed the rezoning required by the Housing Element Law. Accordingly, on April 24, 2023,
HCD found, although the February 2023 housing element addressed the previously identified
deficiencies in the October 2022 Housing Element, and met "most of the statutory
requirements of State Housing Law," the City was not in substantial compliance with the
Housing Element Law because the City adopted the February 2023 housing element more than
one year past the statutory due date of October 15, 2021 and the City had not completed its
statutorily required rezoning. (AR 6297-6300; see also AR 7170-7171.) As a result, HCD found
the City could not be deemed in substantial compliance with sta-e law until it completed all
required rezones. (AR 6297-6300; see § 65588, subd. (e)(4)(C)(iiii. ("A jurisdiction that adopts a
housing element more than one year after the statutory deadlin= .. , shall not be found in
substantial compliance with this article until it has completed the rezoning required by" the
Housing Element Law].)
In its April 24, 2023 letter, HCD also opined that "a local jurisdict on cannot 'backdate'
compliance to the date of adoption of a housing element," and tie City was not in substantial
Page 6 of 39
compliance with the Housing Element Law as of October 4, 2022, notwithstanding its
"certification" in the City's February 21, 2023 resolution. (AR 6297-6298.)
The City Determines 600 Foothill's Preliminary Application Could Not Rely on the Builder's
Remedy and the City Council Affirms the Decision
❑n February 10, 2023, in response to 600 Foothill's Preliminary Application, the City issued an
incompleteness determination (the First Incompleteness Determination) requesting additional
detail on several issues. The First Incompleteness Determination did not allege any
inconsistencies between the Project and the City's zoning ordinance and general plan. (AR
5276-5279.) Petitioner supplemented its application materials in response to the First
Incompleteness Determination on April 28, 2023. (See AR 6305, 7095-7096, 7152-7153, 7169,
7166, 8050-8060, )
On March 1, 2023, the City issued a second incompleteness determination (the Second
Incompleteness Determination). The Second Incompleteness Determination advised 600
Foothill the Builder's Remedy did not apply to the Project making the Preliminary Application
incomplete for its failure to comply with the City's general plan zoning laws and residential
density limitations. (AR 6280-6281; see AR 7176.)
❑n March 9, 2023, 600 Foothill appealed the Second Incompleteness Determination. (See
§ 65943, subd. (c); AR 6282-6287, AR 12926.) In support of its appeal, 600 Foothill provided a
letter from its attorney explaining 600 Foothill's position the City Council's failure to grant the
appeal would constitute a violation of the HAA. (AR 5304-6462, 6317 ["flouts the law"j.)
The City Council heard 600 Foothill's appeal on May 1, 2023. The City Council voted
unanimously to adopt Resolution No. 23-14, denying the appeal and upholding the Second
Incompleteness Determination (the May 1, 2023 Decision). (AR 7151-7160, AR 7161-7168.)
On June 8, 2023, HOD sent the City a Notice of Violation advising the City it violated the HAA
and Housing Element Law by denying 600 Foothill's appeal. (AR 7170-7175.) HCD summarized
the alleged violations:
111
The City cannot 'backdate' its housing element compliance date to an earlier date
so as to avoid approving a Builder's Remedy application. In short, the ❑ctober 4,
2022 Adopted Housing Element did not substantially comply with State Housing
Element Law, regardless of any declaration by the City. Therefore, the Builder's
Remedy applies, and the City's denial of the Project application based ❑n
inconsistency with zoning and land use designation is a violation of the HAA. (AR
7170.)
Page 7 of 39
The City Deterrnines the Application is Complete and the Project is Inconsistent with City's
Zoning Code and General Plan
On May 26, 2023, the City informed 600 Foothill that its Project application was complete. (AR
7169.) On June 24, 2023, the City advised 600 Foothill:
Olt remains the City's position (as affirmed by City Council on May 1, 2023) that the 2021-
2029 Housing Element was in substantial compliance with state law as of October 4, 2022.
Based on that, staff reviewed the project for consistency with the General Plan, applicable
provisions of the Downtown Village Specific Plan (DVSP), the Zoning Code, and the density
proposed within the 2021-2029 Housing Element. In accordance with [J § 65589.5(j)(2)(A),
this letter serves as an explanation of the reasons that the City considers the proposed
project to be inconsistent, not in compliance, or not in conformity with these
aforementioned guiding documents. (AR 7176.)
The City Completes Rezoning and HCD Certifies the City's Substantial Compliance with the
Housing Element Law
On September 12, 2023, the City adopted a resolution completing its rezoning commitments
set forth in its housing element. HCD reviewed the materials and, on November 17, 2023, sent a
letter to the City finding the City had "completed actions to address requirements described in
HCD's April 24, 2023 review letter." (Coy Decl. 1112, Exh, D.)
Writ Proceedings
On July 21, 2023, 600 Foothill filed its verified petition for writ of mandate and complaint for
declaratory and injunctive relief against Respondents. On July 25, 2023, CHDF filed its verified
petition for writ of mandate and complaint for declaratory relief. The court has related the two
actions and coordinated them for trial and legal briefing. The coart denied Respondents'
motion to consolidate the two actions.
On December 20, 2023, pursuant to a stipulation, Intervenors filed their petition for writ of
mandate and complaint for declaratory relief in the CHDF proceeding.
For this proceeding, the court has considered 600 Foothill's Opening Brief, CHDF's Opening
Brief, Intervenors' Opening Brief, Respondents' three opposition briefs, 600 Foothill's Reply
Brief, CHDF's Reply Brief, Intervenors' Reply Brief, the administrative record, the joint appendix,
all requests for judicial notice, and ail declarations (including exhibits).6
111
111
The court accounted for its evidentiary rulings as to the evidence.
Page 8 of 39
STANDARD OF REVIEW
Pursuant to the Los Angeles County Court Rules (Local Rules), "jt]he opening and opposition
briefs must state the parties' respective positions on whether the petitioner is seeking
traditional or administrative mandamus, or both." (Local Rules, Rule 3.231, subd. (i)(1).) The
parties must also provide their position on the standard of review in their briefing. (See Local
Rule, Rule 3.231, subd. (i)(3).)
600 Foothill, CHDF and Respondents do not suggest the standard of review that applies to the
causes of action. Intervenors argue Code of Civil Procedure sec -ion 1085, not Code of Civil
Procedure section 1094,5, applies to their petition.
Under Code of Civil Procedure section 1094.5, subdivision (b), the relevant issues are whether
(1) the respondent has proceeded without jurisdiction, (2) there was a fair trial, and (3) there
was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not
proceeded in the manner required by law, the decision is not supported by the findings, or the
findings are not supported by the evidence. (Code Civ. Proc., § 1094.5, subd. (b).)
In administrative mandate proceedings not affecting a fundamental vested right, the trial court
reviews administrative findings for substantial evidence. Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support a conclusion (California
Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of
ponderable legal significance which is reasonable in nature, credible and of solid value. (Mohilef
v. Janovici (1996) 51 Cal.App.4th 267, 305 n. 28.) Under the substantial evidence test, "[c]ourts
may reverse an [administrative] decision only if, based on the evidence .. a reasonable person
could not reach the conclusion reached by the agency." (Sierra Club v. California Coastal Com.
(1993) 12 Cal.App.4th 602, 610.) The court does "not weigh the evidence, consider the
credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that
may be drawn from it." (Doe v. Regents of University of Californ'a (2016) 5 Cal.App,5th 1055,
1073.)
To obtain a traditional writ of mandate under Code of Civil Procedure section 1085, there are
two essential findings. First, there must be a clear, present, and ministerial duty on the part of
the respondent. Second, a petitioner must have a clear, present. and beneficial right to the
performance of that duty. (California Assn for Health Services at Home v. Deportment of Health
Services (2007) 148 Cal.App.4th 696, 704.) "Generally, mandamus is available to compel a
public agency's performance or to correct an agency's abuse of discretion when the action
being compelled or corrected is ministerial." (AIDS Healthcare Foundation v. Los Angeles County
Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)
An agency is presumed to have regularly performed its official duties. (Evid. Code, § 664.) Under
Code of Civil Procedure section 1094.5, the "trial court must afford a strong presumption of
correctness concerning the administrative findings." (Fukuda v. City of Angels (1999) 20 Cal.4th
805, 817.) A petitioner seeking administrative mandamus has the burden of proof and must cite
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the administrative record to support its contentions. (See.Alford v. Pierno (1972) 27 Ca1.App.3d
682, 691.) Similarly, a petitioner "bears the burden of proof in a mandate proceeding brought
under Code of Civil Procedure section 1085." (California Correctional Peace Officers Assn. v.
State Personnel Bd. (1995) 10 Cal.uth 1133, 1154.) A reviewing court "will not act as counsel for
either party to a [challenge to an administrative decision] and will not assume the task of
initiating and prosecuting a search of the record for any purpose of discovering errors not
pointed out in the briefs." (Fox v, Erickson (1950) 99 Cal.App.2d 740, 742 [context of civil
appeal.)
"'On questions of law arising in mandate proceedings, [the court] exercisers] independent
judgment.' .... Interpretation of a statute or regulation is a question of law subject to
independent review." (Christensen v. Lightbourne (2017) 15 Cal.App,5th 1239, 1251.)
ANALYSIS
Petition for Writ of Mandate — Violations of the HAA
600 Foothill, CHDF, and intervenors seek a writ of mandate to enforce the requirements of the
HAA against the City. Among other relief, they seek a writ directing Respondents to set aside
the City Council's "decision, on May 1, 2023, to disapprove an application for a housing
development project at 600 Foothill Boulevard, and compelling Respondent to approve the
application or, in the alternative, to process it in accordance with the law." (CHDF Pet. Prayer
'n 1; see also 600 Foothill Pet. Prayer ¶¶ 3-5 and Intervenors Pet. Prayer ¶¶ 1-3.)'
Standard of Review
As noted, the HAA at section 65589.5, subdivision (m)(1) specifies "[a]ny action brought to
enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code
of Civil Procedure.. , ." Nonetheless, Intervenors argue Code of Civil Procedure section 1085,
not Code of Civil Procedure section 1094.5, applies because Respondents have a''ministerial
duty under the HAA to process the Foothill ❑wner's Builder's Remedy application."
(Intervenors' Opening Brief 10:27; see Sunset Drive Corp. v. City of Redlands (1999) 73
Cal.App.4th 215, 221-222. I"A writ of mandate may be issued by a court to compel the
performance of a duty imposed by law."))
While there is a colorable argument Code of Civil Procedure section 1085 applies to parts of the
HAA claims involving the Housing Element Law, given the Legislature's clear instructions in
section 65589.5, subdivision (m)(1), the court concludes Petitioners' writ petitions to enforce
the HAA are all governed by Code of Civil Procedure section 1094.5.
' 600 Foothill's writ claims under the HAA are alleged in its third through fifth causes of action
while CHDF's and Intervenors' are alleged in their first causes of action.
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The court's task "is therefore to determine whether the City `proceeded in the manner required
by law,' with a decision supported by the findings, and findings supported by the evidence; if
not, the City abused its discretion." (California Renters Legal Advocacy and Education Fund v.
City of San Mateo (2021) 68 Cal,App.5th 820, 837.) The City "bear[s] the burden of proof that its
decision has conformed to all of the conditions specified in Section 65589.5." (§ 65589.6.)
As noted, based on the circumstances, the court reaches the same result in its analysis even if
the petitions, or parts thereof, are governed by Code of Civil Procedure section 1085. (See e.g.,
§ 65587, subd. (d)(2) (action to compel compliance with Housing Element Law "shall" be
brought pursuant to Code of Civil Procedure section 1085].) The HAA claims raise legal
questions of statutory construction and concerns about Respondents' substantial compliance
with the Housing Element Law. The court decides such issues independently, regardless of
whether Code of Civil Procedure section 1094.5 or 1085 governs. (See e.g. Martinez, supra, 90
Cal.App.5th at 237.)
The City "Disapproved" the Builder's Remedy Project
600 Foothill contends the City "disapproved" the Project, as the term is defined in the HAA,
because the City "determined that the Project could not proceed because it believed the
Builder's Remedy was inapplicable." (600 Foothill Opening Brief 7:11-12.) CHDF and Intervenors
make the same argument. (CHDF ❑pening Brief 21:25-28; Intervenors' ❑pening Brief 15:27-
16:3.)
The Builder's Remedy, at section 55589.5, subdivision (d)(5) provides in pertinent part:
(d) A local agency shall not disapprove a housing development project ... for very
low, low-, ❑r moderate -income households ... unless it makes written findings,
based upon a preponderance of the evidence in the record, as to one of the
following:
(5) The housing development project ... is inconsistent with both the jurisdiction's
zoning ordinance and general plan land use designation as specified in any
element of the general plan as it existed on the date the application was deemed
complete, and the jurisdiction has adopted a revised housing element in
accordance with Section 65588 that is in substantial compliance with this article_
(Emphasis added.)
Thus, to prove their claim under the HAA and to proceed with the Project as a Builder's
Remedy, Petitioners must show the City "disapprove[d] a housing development project."
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(§ 65589.5, subd, (d).r Section 65589.5, subdivision (h)(6) provides to " 'disapprove the housing
development project' includes any instance in which a focal agency does any of the following:
(A) Votes on a proposed housing development project application and the application is
disapproved, including any required land use approvals or entitlements necessary for the
issuance of a building permit .. , ." {Emphasis added.)
Here, on May 1, 2023, the City Council denied Petitioner's appeal of the Second Incompleteness
Determination stating:
[Tjhe City Council of the City of La Canada Flintridge hereby denies the appeal and
upholds the Planning Division's March 1, 2023, incompleteness determination for
the mixed use project at 600 Foothill Boulevard, on the basis that the 'builder's
remedy` under the Housing Accountability Act does not apply and is not available
for the project, and that the project did not 'vest' as a 'builder's remedy' project
as alleged in the project's SB 330 Preliminary Application submission dated
November 14, 2022, because the City's Housing Element was, as of October 4,
2022, in substantial compliance with the Housing Element raw. (AR 7167.)
Notably, Director Koleda informed the City Council, prior to its vote on the appeal, that "if the
appeal is denied, the project will be processed accordingly as a standard, nonbuilder's remedy
project," (AR 7103.) Thus, the City Council "voted" on a proposed housing development project
application and determined the Project could not proceed as a Builder's Remedy project —that
is, the Project would be subject to the City's discretionary approvals.
The Legislature has expressed its intent that the HAA "be interpreted and implemented in a
manner to afford the fullest possible weight to the interest of, and the approval and provision
of, housing." (§ 65589.5, subd. (a)(2)(L); California Renters Legal Advocacy & Education Fund. v.
City of San Mateo, supra, 68 Cal.App.5th at 854.) In addition, "jais a basic principle of statutory
construction, 'include' is generally used as a word of enlargement and not of limitation...
Thus, where the word `include' is used to refer to specified items, it may be expanded to cover
other items." (Rea v. Blue Shield of California (2014) 225 Cal.App.4th 1209, 1227.) Applying
these canons of statutory construction, the court finds section 65589.5, subdivision (h)(6)
should be given a broad construction. Because the City Council made clear any required land
use approvals or entitlements would not be issued for the Project, as a Builder's Remedy
project, the City Council's May 1, 2023 decision falls within the HAA's broad definition of
"disapprove."
It is undisputed the Project constitutes a "housing development project for very low, low-,
or moderate -income households" within the meaning of the HAA. HCD advised the City on
June 8, 2023: "The Project is proposed as an 80-unit mixed -use project where 20 percent of the
units (16 units) will be affordable to lower -income households. The residential portion equates
to approximately 89 percent of the Project; therefore, the Project qualifies as a 'housing
development project' under the HAA (Gov. Code, § 65589.5, subd. (h)(2)(B))." (AR 7171.)
Respondents develop no argument to the contrary.
Page 12 of 39
Respondents contend:
600 Foothill defined the "approvals" and "entitlements" it sought in its application
— namely, a Conditional Use Permit (USE-2023-0016), Tentative Tract Map 83375
(LAND-2023-0001), and Tree Removal Permit (DEV-2023-0003). (AR 5285.) There
was no vote on May 1, 2023, on any of these "required land use approvals" or
"entitlements" and, thus, . , . the "vote" needed under the HAA has not occurred.
(Opposition to 600 Foothill 19:22-26 [emphasis in original].)
Respondents' narrow interpretation of the statute is unpersuasive. (See § 65589.5, subd.
(a)(2)(L).) While the City Council may not have voted to deny the conditional use permit,
tentative tract map, and tree removal permit, the City Council voted on May 1, 2023 and
determined the Project could not proceed as the project proposed —a Builder's Remedy
project. Because the Project was proposed as a Builder's Remedy, the City Council's May 1,
2023 vote on the project application was a "disapproval" within the meaning of the HAA.
Respondents also contend "[t]he City cannot as a matter of law approve or disapprove a
development project, including a project under the Builder's Remedy, prior to conducting
environmental review under CEQA ...."9 (Opposition to 600 Foothill 16:15-16.) Respondents
argue the HAA does not authorize the court "to order the City to accommodate CEQA review
after a possible finding by the Court of a violation of the HAA." (Opposition to 600 Foothill
16:25-26 [emphasis in original).)
Again, Respondents' arguments are unpersuasive --a city can disapprove a project without
having under -taken CEQA review. Nothing requires a city to undertake CEQA review before
deciding to disapprove o project. CEQA does not apply to "[p]rojects which a public agency
rejects or disapproves." (Pub. Res. Code, § 21080, subd. (b)(5).) "[Ijf an agency at any time
decides not to proceed with a project, CEQA is inapplicable from that time forward." (Las Lomas
Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 850.) Respondents do not cite
any language from the HAA that supports their position.u)
'CEQA refers to the California Environmental Quality Act at Public Resources Code section
21000, et seq.
"During argument, the City emphasized its reliance on section 65589.5, subdivision (m)(1) its
language concerning finality —an action cannot be brought to enforce the HAA's provisions until
there is a "final action on a housing development project" and the City did not take final action
on the Project —it merely determined the Project could not be built as a Builder's Remedy
project and would be subject to discretionary approvals. As noted by 600 Foothill, an action to
enforce the HAA may be initiated after a municipality imposes conditions upon, disapproves or
takes final action on a housing project. The City made clear in its May 1, 2023 Decision that the
Project could not proceed as proposed as a Builder's Remedy project.
Page 13 of 39
While CEQA review is preserved by the HAAll nothing suggests a disapproval under the HAA
can occur only after CEQA review or that a court lacks authority to issue a writ to compel
compliance with the HAA, even if a Builder's Remedy project is subject to CEQA compliance.
Notably, a suit to enforce the HAA must be filed "no later than 90 days from" project
disapproval. (§ 65589.5, subd. (m)(1).) Further, the HAA must "be interpreted and implemented
in a manner to afford the fullest possible weight to the interest of, and the approval and
provision of, housing." (§ 65589.5, subd. (a)(2)(L).) Respondents' interpretation of the HAA,
under which a disapproval cannot occur prior to CEQA review, would hinder the approval and
provision of housing. Accordingly, an agency may "disapprove" a project under the HAA before
conducting any environmental review under CEQA, and a petitioner's claim to enforce the HAA
may be ripe for consideration even if CEQA review has not been performed or completed.
Respondents' reliance on Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th
1245, 1262 [Schellinger] is misplaced. Schelienger involved a request to compel the certification
of an environmental impact report. Schellinger did not hold that all claims under the HAA or
other housing laws are unripe or cannot be filed until CEQA review is completed. The case did
not address CEQA in the context ❑f a claim to enforce the Builder's Remedy provision in the
HAA. The case also did not suggest a trial court lacks discretion to structure a writ issued
pursuant to the HAA in a manner that allows for CEQA review to be completed, "An opinion
is not authority for propositions not considered." (People v, Knoller (2007) 41 Ca1.4th 139, 154-
55.)
The court acknowledges Schellinger advised the HAA "specifically pegs its applicability to the
approval, denial or conditional approval of a 'housing development project' .. , which, as
previously noted, can occur only after the EIR is certified. (CEQA Guidelines, § 15090(a).)"
(Schellinger, supra, 179 Cai.App,4th at 1262.) Nonetheless, the court's statement must be
interpreted in the context of the issues before that Court. Because the agency there had not
disapproved the project at issue, the Court's reference to the "denial" of a housing
development project was a dictum. In any event, as discussed, Schellinger did not decide the
legal question presented here —whether the City "disapproved" a Project when it determined,
through a vote of its City Council, the Builder's Remedy Project did not qualify for the Builder's
Remedy under the HAA.17
"See section 65589.5, subdivisions (e) and (o)(6).
17 Respondents indicate the City took action to pay for CEQA review of the Pro;ect starting in
September 2023. (Opposition to 600 Foothill 18:11-14 [citing Sheridan Decl. Exh. JJ].) By that
time, however, the City Council had already determined the Project could not proceed as
proposed pursuant to the Builder's Remedy, (AR 7167; see also AR 7176.) Respondents do not
explain the purpose of CEQA review for a project the City Council has determined could not be
approved consistent with the Jaw. This evidence does not support Respondents' position the
City Council's May 1, 2023 Decision did not constitute a "disapproval" under the HAA.
Page 14 ❑f 39
Based on the foregoing, Petitioners have demonstrated the City Council "disapproved" the
Project with its May 1, 2023 Decision within the meaning of the HAA. Respondents do not show
the petitions are "unripe" because CEQA review has not been completed, or that CEQA review
is a prerequisite to the "disapproval" of a Project under the HAA. In light of the court's
conclusion, the court need not reach the parties' contentions regarding California Renters v.
City San Mateo (2021) 60 Cal.App.5th 820 and appellate briefing from that case. (See
Opposition to 600 Foothill 17;10-28 [citing Sheridan Decl. Exh. EE and FF},)
"Vesting" of the Builder's Remedy and the Date the Pro ect Application was Deemed
Complete
Respondents assert the filing of a SB 330 preliminary application does not "vest" the Builder's
Remedy because "when a city is determining whether it can make the finding in subsection
(d)(5), it considers the status of its Housing Element as of the date the finding is made."
(Opposition to 600 Foothill 23:11-13 [emphasis in original].)
The HAA defines "deemed complete" to mean that "the applicant has submitted a preliminary
application pursuant to Section 65941.1." (§ 65589.5, subd. (h)(5) [emphasis added].) Section.
65589.5, subdivision (o)(1) states "a housing development project shall be subject only to the
ordinances, policies, and standards adopted and in effect when a preliminary application
including all of the information required by subdivision (a) of Section 65941.1 was submitted."
Construing these statutory provisions, along with section 65589.5, subdivision (d), the court
concludes a Builder's Remedy ''vests" if the local agency does not have a substantially
compliant housing element at the time a complete preliminary application pursuant to section
65941.1 is submitted and "deemed complete."
Respondents have not developed any argument the Preliminary. Application, submitted in
November 2022, lacked the information required by section 65541.1 or was otherwise
incomplete within the meaning of the HAA. (See AR 5234-5246.;13 Thus, if the City's housing
element did not substantially comply with the Housing Element Law at that time (see analysis
infra), the Builder's Remedy "vested" when 600 Foothill submitted its Preliminary Application in
November 2022.'
Respondents' reliance on subdivision (o) of the HAA is misplaces. Section 65589.5, subdivision
(o)(4) provides "'ordinances, policies, and standards' includes general plan, community plan,
specific plan, zoning, design review standards and criteria, subdivision standards and criteria,
and any other rules, regulations, requirements, and policies of a local agency." (Empasis added.)
600 Foothill's Preliminary Application used the form generated by the City. 600 Foothill
completed the form and included necessary attachments.
t° 600 Foothill's Preliminary Application was "deemed complete," within the meaning of the
HAA, when 600 Foothill submitted its application in November 2022. (See AR 5241-5246, 7171;
see also Gov. Code §§ 65589.5, subdivision (h)(5) and 65941.1.) During argument, Respondents
appeared to conflate the Preliminary Application with a formal project application.
Page 15 of 39
The housing element is a mandatory element of the general plan. (§ 65582, subd. (f).) Section
65589.5, subdivision (o)(1) precludes Respondents from retroactively applying a housing
element to a Builder's Remedy project that "vested" before certification of the housing
element.
Respondents' vesting argument is also inconsistent with the HAA's policy of promoting housing.
(§ 65589.5, subd. (a)(2)(L).) If Respondents' position was correct, as a practical matter "no
housing developer would ever submit a builder's remedy application because of the uncertainty
about whether the project would remain eligible long enough to be approved." (CHDF Reply
19:8-9.)
500 Foothill's Preliminary Application was "deemed complete," for purposes of the HAA, in
November 2022 when 600 Foothill submitted its Preliminary Application. If the Builder's
Remedy applies (see infra), it therefore "vested" in November 2022./s
The City Could Not Be in Substantial Compliance with the Housing Element Law until it
Completed Rezoning
Petitioners contend the City's housing element was not in substantial compliance with the
Housing Element Law when 600 Foothill filed its Preliminary Application because the City had
not completed the rezoning required by sections 65583, subdivision (c)(1)(A) and section
65583.2, subdivision (c). (See 600 Foothill Opening Brief 12:21-23.) Petitioners are correct.
Section 65588, subdivision (e)(4)(C)(i) states:
For the adoption of the sixth revision and each subsequent revision, a focal
government that does not adopt a housing element that the department has
found to be in substantial compliance with this article within 120 days of the
applicable deadline described in subparagraph (A) or (C) of paragraph (3) shall
comply with subparagraph (A) of paragraph (1) of subdivision (c) of Section
55583 and subdivision (c) of Section 65583.2 within one year of the statutory
deadline to revise the housing element.
Section 65588, subdivision (e)(4)(C)(iii) states:
A jurisdiction that adopts a housing element more than one year after the
statutory deadline described in subparagraph (A) or (C) of paragraph (3) shall not
be found in substantial compliance with this article until it has completed the
S5 However, the court reaches the same result in its analysis below even if the application was
deemed complete or "vested" anytime up to May 1, 2023, the date of City Council's decision.
The City did not complete its required rezoning until September 12, 2023. (See § 65588,
subd. (e)(4)(C)(iii).)
Page 16 of 39
rezoning required by subparagraph (A) of paragraph (1) of subdivision (c) of
Section 65583 and subdivision (c) of Section 65583.2. (Emphasis added.)'`.
Thus, the statute mandates the jurisdiction "shall not be found in substantial compliance" until
completing the rezoning. (Ibid.)17 The plain language of the statutory prohibition is not limited
to HCD; the prohibition therefore applies to the courts.
As applied here, the City's statutory deadline to adopt a substantially compliant 6th cycle
housing element was ❑ctober 15, 2021. (AR 443.) The City submitted its draft housing element
to HCD on October 15, 2021, (AR 443.) Because the City failed t❑ secure certification of its 6th
cycle housing element within 120 days of its statutory deadline of October 15, 2021 (see AR
443-447), ❑ctober 15, 2022 served as the City's deadline to complete its required rezoning,
(§ 65583, subd. (c)(1)(A),) It is undisputed the City did not complete the required rezoning until
September through November 2023,
Pursuant to the plain language of section 65588, subdivision (e)(4)(C)(iii), the City "shall not be
found" in substantial compliance with the Housing Element Law until the City completed its
rezoning in September through November 2023. As a result, the City did not have a
substantially compliant housing element when 600 Foothill submitted its Preliminary
Application to the City in November 2022; the Builder's Remedy therefore applies to the
Project.
Respondents do not challenge the plain language interpretation of section 65588, subdivision
(e)(4)(C)(iii).'fi Thus, they concede where an agency has failed to adopt a substantially compliant
housing element by more than a year after the statutory deadline to do so, the agency cannot
be found in substantial compliance with the Housing Element Law by HC❑ or a court until it
16 During argument, Respondents objected t❑ the court's consideration of legislative history
referenced in the court's tentative order distributed prior to the hearing. The court relied 600
Foothill's RJN, Exh. D at 82 and Exh. E at 149. Respondents correctly argued resort to legislative
history here is inappropriate given the plain language of the statute and lack of ambiguity. (See
River Garden Retirement Home v. Franchise Tax Bd. (2010) 186 Cal.App.4th 922, 942.) While the
parties later agreed the court could rely on all of the evidence that had been submitted by the
parties, the court nonetheless revised its decision to eliminate the discussion of legislative
history. Given Respondents' argument, there can be no claim the statute is unclear, "If there is
no ambiguity, we presume the Legislature meant what is said and the plain meaning of the
language controls." (Ibid.)
17 In any event, as discussed infra, the court concludes the City did not adopt a substantially
compliant housing elernent until after 600 Foothill submitted its complete Preliminary
Application. Accordingly, even if the statutory bar of section 65588, subdivision (e)(4)(C)(iii)
does not apply to the courts, the court still concludes the Builder's Remedy applies to the
Project.
'" As noted supra in footnote 16, Respondents agree there is no ambiguity in the statute.
Page 17 of 39
completes its required rezoning. (SehuJster Tunnels/Pre-Con v. Traylor Brothers, inc. (2003) 111
Cal.App.4th 1328, 1345, fn. 16 {failure to address point is "equivalent to a concession"].)
Respondents contend the "City could not rezone until it had a General Plan Housing Element
under Section 65860(c), HCD did not promulgate draft [Affirmatively Further Fair Housing]
requirements for the 6th Cycle housing element until April 23, 2020, and did not promulgate
the final version until April 2021, only six months before the then -existing deadline (within
SCAG) for submitting a 6th RHNA Cycle Housing Element." (Opposition to CHDF 8: 11-15.)
Respondents' evidence does not demonstrate actions or omissions of HCD or the Southern
California Association of Governments (SCAG) precluded the City from adopting a substantially
compliant housing element or the required rezoning. Director lsoleda advises the final
affirmatively further fair housing requirements were available by April 2021, and the City's
RHNA increased by only two dwelling units between March 22, 2021 and July 1, 2021. (Koleda
Decl. 1111 20, 36.) As persuasively argued by Intervenors, the City "had sufficient time to
accommodate its RHNA allocation, or at the very least, the two additional dwelling units added
between March and July 2021." (intervenors' Reply 16, fn. 8.) Respondents also do not show,
with persuasive evidence, the timing of HCD's promulgation of affirmatively further fair housing
requirements prevented the City from adopting a substantially compliant housing element.
Respondents also argue section 65588, subdivision (e)(4)(C)(iii)'s rezoning requirement "is
illegal, unconstitutional, and unenforceable" because "{t]he Government Code specifically
contemplates that rezoning will occur after adoption of an amendment to a General Plan,
including Housing Elements, ...." (Opposition to Intervenors 12:19, 14:26-27.) Respondents'
statutory argument is not fully developed, lacks sufficient analysis of governing legal principles,
and is unpersuasive.
Respondents wholly fail to explain how section 65588, subdivision (e)(4)(C)(iii) is "illegal" or
"unconstitutional." At most, Respondents assert section 65588, subdivision (e)(4)(C)(iii)
conflicts with other statutes requiring consistency between the zoning ordinances of a general
Jaw city and its general plan, and the requirement such zoning ordinances be amended "within
a reasonable time" to be consistent with a general plan that is amended. (Opposition to
Intervenors 13:13-16 {citing § 65860].)
Respondents do not show a conflict between section 65588, subdivision (e)(4)(C)(iii) and
section 65860 or any other statute. Contrary to Respondents' assertion, a city could comply
with both statutes. Thus, as argued by 600 Foothill, a city could update its zoning
simultaneously with the adoption of its housing element. A city could also adopt a housing
element that is provisionally certified by HCD and then subsequently complete the rezoning,
which is what occurred here. While section 65588, subdivision (e)(4)(C)(iii) may subject a city to
the Builder's Remedy it if does not complete its rezoning at the same time adopts its housing
element, Respondents do not show such possibility conflicts with section 65860 or that the
Page 18 of 39
Legislature lacked the authority to impose such measures to encourage the development of
housing.19
Because the City had not completed its required rezoning, the City's housing element was not
in substantial compliance with the Housing Element Law when 600 foothill filed the Preliminary
Application in November 2022. As a result, the City Council prejudicially abused its discretion
when it found the Builder's Remedy did not apply to the Project in its May 1, 2023 Decision.
Did the City's ❑ctober 2022 Housing Element Substantially Comply with the Housing
Element Law Without Consideration of Rezoning?
In its May 1, 2023 Decision, the City Council found "the 'builder's remedy' under the Housing
Accountability Act does not apply and is not available for the project ... because the City's
Housing Element was, as of October 4, 2022, in substantial compliance with the Housing
Element law." (AR 7167.) Petitioners contend the City Council's finding was a prejudicial abuse
❑f discretion. The court agrees. The October 4, 2022 Housing Element was not in substantial
compliance with the Housing Element Law.
Standard of Review —Substantial Compliance with Housing Element Law
"In an action to determine whether a housing element complied with the requirements of the
Housing Element Law, the court's review 'shall extend to whether the housing element
substantially complies with the requirements' of the law. (§ 65587, subd, (b), italics added.)
Courts have defined substantial compliance as 'actual compliance in respect to the substance
essential to every reasonable objective of the statute,' as distinguished from 'mere technical
imperfections of form.' {Citations.] Such a review is limited to whether the housing dement
satisfies the statutory requirements, 'not to reach the merits ❑f the element or to interfere with
the exercise of the locality's discretion in making substantive determinations and conclusions
about local housing issues, needs, and concerns: (Martinez, supra, 90 Cal.App.5th at 237,)
HCD is mandated by statute to determine whether a housing element substantially complies
with the Housing Element Law. (See e.g., § 65585, subds. (i)-(j); Health & Saf. Code § 50459.
subds. (a), (b).) Given HCD's statutory mandate and its expertise, HCD's determination of
substantial compliance with the Housing Element Law, or lack thereof, is entitled to deference
from the courts. {See Hoffmaster v. City of San Dieg❑ (1997) 55 Cal.App.4th 1098, 1113, fn. 13
19 Further, even assuming a conflict existed, Respondents do not explain why section 65860
would take precedence over section 65588, subdivision (e)(4)(C)(iii) under the specific
circumstances presented here (i.e., a statutory bar to attaining substantial compliance with the
Housing Element Law until rezoning is complete). (See State Dept. of Public Health v. Superior
Court (2015) 60 Ca1.4th 940, 960-961. ("If conflicting statutes cannot be reconciled, later
enactments supersede earlier ones [citation], and more specific provisions take precedence
over more general ones."})
Page 19 of 39
["We substantially rely on the Department of Housing and Community Development's
interpretation [...] regarding compliance with the housing element law . , , ."]; accord
Martinez, supra, 90 Cal.App.5th at 243 ["courts generally will not depart from the HCD's
determination unless 'it is clearly erroneous or unauthorized' "].)
However, "HCD's housing element compliance determinations are not binding on courts." (See
Intervenor Reply 10:2; see also 500 Foothill Opening Brief 15:8-9.) The trial and appellate courts
"'independently ascertain as a question of law whether the housing element at issue
substantially complies with the requirements of the Housing Element Law.' ..." (Martinez,
supra. 90 Cal.App.5th at 237.)2° Thus, to be clear (and as noted during the hearing) the court
has not deferred to HCD concerning substantial compliance —the issue is properly subject to
the court's independent review as a question of law.
Affirmatively Further Fair Housing
As background, HCD found the City's October 2022 Housing Element did not substantially
comply with the City's duties under the Housing Element Law to analyze how the housing
element will affirmatively further fair housing. Specifically, HCD wrote:
While the element now analyzes census tracts and sites with a concentration of
affordable units (p. D71-73), it should still discuss whether the distribution of sites
improves or exacerbates conditions. This is critical as the sites to accommodate
the lower -income households are only located along Foothill Boulevard near the
210 Freeway. If sites exacerbate conditions, the element should include programs
to mitigate conditions (e.g., anti -displacement strategies) and promote inclusive
communities, {AR 5263-5264.)
HCD also found the element must include a complete assessment of fair housing. Based on the
outcomes of that analysis, the element must add or modify programs." (AR 5264.)
° While Martinez advises "'[t]he burden is on the challenger to demonstrate that the housing
element ... is inadequate" (ibid.), the HAA provides the City "beads] the burden of proof that
its decision has conformed to all of the conditions specified in Section 65589.5." (§ 65589.6; see
also § 65587, subd. (d)(2) [city has burden of proof in action to compel compliance with
requirements of section 65583, subd. (c)(1)-(3)].) The parties do not address the language in
Martinez or how it should be applied, if at all, in this proceeding. The court concludes based on
sections 65589.6 and 65587, subdivision (d)(2) the burden is on Respondents to show the City
Council's May 1, 2023 Decision complied with the HAA. Such a showing requires the City to
demonstrate it attained substantial compliance with the Housing Element Law before 600
Foothill's submitted its Preliminary Application and it was "deemed complete." The court notes
and clarifies, however, it would reach the same result herein even if the initial burden of proof
is with Petitioners.
Page 20 of 39
Housing elements must contain "an inventory of land suitable and available for residential
development, including vacant sites and sites having realistic and demonstrated potential for
redevelopment during the planning period to meet the locality's housing need for a designated
income level" —the "sites inventory." (§ 65583, subd. (a)(3).j The sites inventory must be
accompanied by "an analysis of the relationship of the sites identified in the land inventory to
the jurisdiction's duty to affirmatively further fair housing." (Ibid.) In addition, each updated
housing element must include "a statement of the community's goals, quantified objectives,
and policies relative to affirmatively furthering fair housing" (§ 65583(b)j1jj, and must commit
to programs that will, among other things, "Affirmatively further fair housing in accordance
with [Section 8899.501." (§ 65583, subd. (c)(10).j21
Here, the October 2022 Housing Element discloses the sites identified by the City to
accommodate affordable housing are all located near the Foothill Freeway. (AR 5130.) In this
context, HCD found the October 2022 Housing Element lacked sufficient analysis of the
relationship of the sites identified in the land inventory to the City's duty to affirmatively
further fair housing, i.e. whether the site inventory would improve or exacerbate fair housing
conditions. (AR 5263-5264.)
Respondents do not cite to any specific analysis in the October 2022 Housing Element
addressing the concern raised by HCD. (See Opposition to 600 Foothill 9:14 [citing AR 1741,
5203}.) In fact, neither AR 1741 nor 5203 demonstrate the October 2022 Housing Element
analyzed how the clustering of affordable housing near the Foothill Freeway would promote or
exacerbate fair housing. While Respondents now explain in the context of this proceeding why
the City clustered all affordable housing near the freeway (See Koleda Dec!. 1)11 9-16j,
21 Section 8899.50, subd. (b)(1) provides: "A public agency shall administer its programs and
activities relating to housing and community development in a manner to affirmatively further
fair housing, and take no action that is materially inconsistent with its obligation to affirmatively
further fair housing." Compliance with the obligation is mandatory. (Id, at subd. (b){2).j The
statute defines "affirmatively further fair housing" as:
taking meaningful actions, in addition to combating discrimination, that overcome
patterns of segregation and foster inclusive communities free from barriers that
restrict access to opportunity based on protected characteristics. Specifically,
affirmatively furthering fair housing means taking meaningful actions that, taken
together, address significant disparities in housing needs and in access to
opportunity, replacing segregated living patterns with truly integrated and
balanced living patterns, transforming racially and ethnically concentrated areas
of poverty into areas of opportunity, and fostering and maintaining compliance
with civil rights and fair housing laws. The duty to affirmatively further fair housing
extends to all of a public agency's activities and programs relating to housing and
community development. (Id. at subd. (a)(1).)
Page 21 of 39
Respondents were required to include that analysis in the October 2022 Housing Element. (See
§ 55583, subds. (a)(3), (b)(1), and (c)(10).]27
Respondents contend the "City undertook numerous outreach efforts to reach a variety of
economic groups, including via two housing workshops with 18 different stakeholder
organizations." (Opposition to 500 Foothill 9:10-12 [citing Koleda Decl. 111138-50 and AR 3896-
3900, 4651].) Respondents do not cite any authority that outreach alone satisfies the City's
statutory obligations to include in its housing element "an analysis of the relationship of the
sites identified in the land inventory to the jurisdiction's duty to affirmatively further fair
housing," (§ 65583, subd. (a)(3) [emphasis added].) Exercising its independent judgment on the
statutory question, the court concludes outreach alone does not substantially comply with the
requirement —outreach does not constitute analysis.
The deficiencies in the October 2022 Housing Element as to the affirmatively further fair
housing analysis are demonstrated by changes made by the City in the February 2023 Housing
Element.' Specifically, the February 2023 Housing Element added analysis —"the sites to
accommodate the lower and moderate -income households are concentrated primarily in the
western end of the City along the Foothill Boulevard Corridor, and near the 210 Freeway." (AR
6090.) The analysis recognized "adverse air quality conditions have the potential to be
exacerbated" based on "close proximity to the freeway[.)" (AR 6090.) in addition, the revised
February 2023 Housing Element committed to Program 24 to mitigate these impacts. (AR 6091;
See also AR 5577-5578 [adding Program 24, "Mitigation for Housing in Proximity to Freeways"
committing to building design measures for new residential development near the freeway].)
Respondents contend "those air quality mitigation measures were adopted in 2013 and the
2023 Housing Element merely added a heading regarding these existing measures." (Opposition
to 600 Foothill 9:7-8 [citing Koleda Dec1. 1133 and AR 4515].) Respondents cite AQ Policy 1.1.6
from its General Plan Air Quality Element, which states the policy to "Ensure that new
developments implement air quality mitigation measures, such as ventilation systems,
adequate buffers, and other pollution reduction measures and carbon sequestration sinks,
especially those that are located near existing sensitive receptors." (Koleda Decl. 1133.)
During argument, Respondents suggested the material included in the February 23, 2023
housing element had previously been provided in the October 2022 Housing Element. While it
is true Table D-12 can be found in both versions of the housing element (compare AR 6090 p.
❑22 with AR 5158 p. D22), the February 23, 2023 revisions to the October 2022 Housing
Element (AR 6090-6092) included additional narrative material beyond repeating information
from Los Angeles County's Department of Public Health. Further, AR 5193-5204, identified by
Respondents during the hearing as an analysis of how the clustering of affordable housing near
the Foothill Freeway would promote or exacerbate fair housing within the October 2022
Housing Element, does not appear to address the issue. Finally, it does not appear Respondents
cited any of this material in their briefs before the court in response to the claims raised by
Petitioners. 600 Foothill objected to the argument as new during the hearing.
"See supra footnote 22.
Page 22 of 39
While Program 24 and AQ Policy 1.1.6 have similarities, they are not the same. Program 24
identifies specific mitigation measures that apply to receptors near the freeways and is
enforceable by HCD. (See § 65585, subd. (i) [requiring HCD to investigate a "failure to
implement any program actions included in the housing element."].) In contrast, AQ Policy 1.1,6
is a shorter and more general policy that is not enforceable by HCD as a housing element
program. Contrary to Respondents' assertion, the inclusion of Program 24 in the February 2023
Housing Element supports HCD's findings that the October 2022 Housing Element lacked
sufficient analysis of the City's affirmatively further fair housing obligations.
Exercising its independent judgment on the issue, the court concludes the City's October 2022
Housing Element did not substantially comply with the affirmatively further fair housing
requirements in section 65583, subdivisions (a)(3), (b)(1), and (c)(10).'
Nonvacant Sites Analysis
HCD found the October 2022 Housing Element's analysis of nonvacant sites did not sufficiently
analyze "redevelopment potential and evaluate the extent existing uses impede additional
development." (AR 5264,) HCD also found "as the element relies on nonvacant sites to
accommodate 50 percent or more of the housing needs for lower -income households, the
adoption resolution must make findings based on substantial evidence in a complete analysis
that existing uses are not an impediment and will likely discontinue in the planning period." (AR
5264.)
For nonvacant sites, the Housing Element Law provides "the city or county shall specify the
additional development potential for each site within the planning period and shall provide an
explanation of the methodology used to determine the development potential," (§ 65583.2,
subd. (g)(1).) In addition, "when a city or county is relying on nonvacant sites .. , to
accommodate 50 percent or more of its housing need for lower income households, the
methodology used to determine additional development potential shall demonstrate that the
existing use ... does not constitute an impediment to additional residential development
during the period covered by the housing element. An existing use shall be presumed to
impede additional residential development, absent findings based on substantial evidence that
the use is likely to be discontinued during the planning period." (5 65583.2, subd. (g)(2).)
14 In reaching this conclusion, the court has considered Respondents' assertion the City
undertook outreach efforts "in the face of 'changing goal posts' and what appeared to be
intentional obstructive behavior by HCD." (Opposition to 600 Foothill 9:16-21.) The court finds
Respondents' evidence does not prove substantial compliance with the affirmatively further
fair housing requirements in section 65583 or an excuse from substantial compliance. (See e.g.
Koleda Decl. 91149-50,) The court has also considered CHDF's arguments and evidence that the
City discriminated on the basis of race and income when it selected sites for rezoning. The court
further discusses CHDF's claims of discrimination and bad faith infra.
Page 23 of 39
The Court of Appeal explains "there are many types of sites the Legislature has either deemed
infeasible to support lower income housing or that require additional evidence of their
feasibility or by -right development approvals before being deemed adequate to accommodate
such housing [including] ... when a city relies on over 50 percent of the inventory to be
accommodated on nonvacant sites .... The goal is not just to identify land, but to pinpoint sites
that are adequate and realistically available for residential development targets for each
income level." (Martinez, supra, 90 Cal.App.5th at 244 [emphasis added].)
Here, more than 50 percent of the parcels included in the City's site inventory to accommodate
the lower income RHNA are nonvacant. (AR 4506.) Accordingly, the City is required to comply
with section 65583.2, subdivision (g)(2). The site inventory in the October 2022 Housing
Element does not show substantial compliance with section 65583.2, subdivision (g)(2), (See AR
5124-5129.) The criteria used to describe nearly all of the lower income nonvacant sites are
some combination of "underutilized site," "buildings that are older than 30 years," "vacant lot
or parking tot with minimal existing site improvements," "property has not been reassessed" in
some time, "antiquated commercial uses," or "existing use retained and institution would add
residential units.' (AR 5124-5129; see also AR 4601-4603 [discussing methodology].) While
these factors may be relevant to and inform on the analysis of "additional development
potential" required by section 65583.2, subdivision (g)(1), they do not sufficiently address in
any substantive way whether the sites are "likely to be discontinued during the planning
period," as required by section 65583.2, subdivision (g)(2).
in the resolution adopting the October 2022 Housing Element, the City Council made the
following finding;
Based on general development trends resulting from continuously rising land
values, changes in desired land uses, the financial pressures placed on religious
institutions that have been impacted by falling congregation numbers, aging
structures, and underutilized properties, rising demand for housing, adjacency to
public transportation and commercial services, and other factors/analysis as
identified in the Section 9.4.1.3 Future Residential Development Potential and
Section 9.4.1.4 Overview of Residential Development Potential and Realistic
Capacity Assumptions by Zone of the Housing Element, the existing uses on the
sites identified in the site inventory to accommodate the tower income RHNA are
likely to be discontinued during the planning period, and therefore do not
constitute an impediment to additional residential development during the period
covered by the housing element. (AR 4506.)
The City Council's generalized statement does not reference any specific evidence to support a
finding the existing uses of nonvacant sites, which were identified to accommodate housing
need for lower income households, are "likely to be discontinued during the planning period."
(§ 65583.2, subd. (g)(2).)
Page 24 of 39
Further, Petitioners cite record evidence that the owners of several of the nonvacant sites
included in the October 2022 site inventory, including certain sites identified for lower income
households, informed the City they did not intend to redevelop the site or discontinue the
existing use during the planning period. (See AR 5114-5116, 2222, 2238, 2206, 5126, 12812,
5233, 5123-5129, 6054-6061.)25 Significantly, the City subsequently amended the housing
element to disclose that some of the identified lower income category sites are "not currently
available" and were included in the site inventory "as a buffer site because it may become
available further along in the 6th cycle HE planning period." (AR 6054-6061, 6098.) Such a
change in characterization is a major substantive change in the site inventory and demonstrates
the October 2022 Housing Element did not substantially comply with the Housing Element Law.
The court has also reviewed Director Koleda's summary of changes to the October 2022
Housing Element. The court concludes, on the whole, Director Koleda's summary is consistent
with Petitioners' arguments the October 2022 Housing Element was not substantially compliant
and required significant changes. (See Koleda Decl, 1156 and Exh. A.) As Intervenors argue, the
substantial changes to the October 2022 Housing Element show the City did not substantially
comply with section 65583.2, subdivision (g)(2) until after it adopted the October 2022 Housing
Element.
Respondents assert the City "adopted a Site Inventory using both a data -driven model endorsed
by HCD ... and along with that gathered 'substantial evidence' by sending TWO mailings to
each commercial and religious property owner in the City to determine potential inclusion on
the Site Inventory/' (Opposition to 600 Foothill 11:9-12 [citing Koleda Decl. 911129, 54-56].)
However, Respondents do not dispute it included multiple nonvacant sites in the October 2022
Site Inventory for which the City lacked substantial evidence, in October 2022, that the existing
uses were "likely to be discontinued during the planning period." (§ 65583.2, subd. (g)(2),)
Notably, Respondents do not cite any written communications with the nonvacant site owners,
prior to the adoption of the October 2022 Housing Element, as evidence the uses were "likely
to be discontinued during the planning period." (§ 65583.2, subd, (g)(2).)
Respondents assert their methodology should be sufficient. During the hearing, they followed
HCD guidance and should not be penalized for doing so. Respondents also argue for purposes
of section 65583.2, subdivision (g)(2), they should not be required to knock on owners' doors
and undertake an active investigation for its sites inventory.
The court cannot find on this record the City followed HCD guidance on the section 65583.2,
subdivision (g)(2) issue. While the City's reliance on methodology alone may be consistent with
For example, a representative of a restaurant (Panda Express) wrote "we have NO intention
of discontinuing the current use of this property during the next eight -year housing planning
period." (AR 5115.) The owner of sites 86-89 on the October 2022 site inventory (identified in
the lower income category) similarly informed the City that the premises are leased to retail
store (Big Lots) under a 20-year lease with two 10-year extension options, and it had no
intention of discontinuing the current use during the planning period. (AR 5116.)
Page 25 of 39
HCD's section 65583.2, subdivision (g)(1) compliance guidance, that is not the case for section
65583.2, subdivision (g)(2).
As discussed during the hearing, HC❑ guidance specifies at Step 3 how to prepare a nonvacant
sites inventory when a municipality has relied on "nonvacant sites to accommodate more than
50 percent of the RHNA for lower income households." (Koleda Decl., Exh. Q p. 26.) Consistent
with section 65583.2, subdivision (g)(2), the guidance makes clear:
If a housing element relies on nonvacant sites to accommodate 50 percent or
more of its RHNA for lower income households, the nonvacant site's existing use
is presumed to impede additional residential development, unless the housing
element describes findings based on substantial evidence that the use will likely
be discontinued during the planning period, (Id. at 27.)
"The goal is not just to identify land, but to pinpoint sites that are adequate and realistically
available for residential development targets . , . ," (Martinez, supra, 90 Cal.App.5th at 244
[emphasis added],) Accordingly, HCD guidance also explains the "housing element should
describe the findings and include a description of the substantial evidence they are based on,"
and a housing element "should describe the findings and include a description of the
substantial evidence they are based on." ]Koleda Decl., Exh. Q at 27.)
[Ibid.)
HCD further advised substantial evidence "includes facts, reasonable assumptions predicated
upon facts, and expert opinion supported by facts." ((bid.) HCD provides specific examples of
what Constitutes substantial evidence "that an existing use will likely be discontinued in the
current planning period ...." (ibid.) Those examples include:
11] The lease for the existing use expires early within the planning period,
[2] The building is dilapidated, and the structure is likely to be removed, or a
demolition permit has been issued for the existing uses,
[3] There is a development agreement that exists to develop the site within the
planning period,
[4] The entity operating the existing use has agreed to move to another location
early enough within the planning period to allow residential development within
the planning period.
[5] The property owner provides a letter stating its intention to develop the
property with residences during the planning period. (Ibid.)
Of the 21 nonvacant sites identified by the City as "sites that are adequate and realistically
available for residential development targets" for lower income persons (Martinez, supra, 90
Cal.App.5th at 244), 19 percent or only four (sites 74, 91, 95 and 96) provide any site -specific
evidence to support the City's inclusion of the site in its sites inventory. (AR 5124-5128.) For the
four sites, the owner indicated some interest in redevelopment. (AR 5126, 5128.) The
Page 26 of 39
remaining sites rely on the City's generalized methodology to meet their obligations under
section 65583.2, subdivision (g)(2).
Respondents argue 600 Foothill's principal "actively manipulated" certain sites that were later
deemed "buffer sites." (Opposition to 600 Foothill 10:22.) Respondents also blame deficiencies
in their October 2022 site inventory on "dilatory guidance" of HCD and dilatory actions of SCAG.
{Opposition to 600 Foothill 12:9-10.) Having considered the evidence cited by Respondents, the
court finds Respondents' arguments unpersuasive. As discussed infra with Respondents'
unclean hands defense, Respondents do not demonstrate 600 Foothill or its principals have
engaged in any inequitable or wrongful conduct related to these proceedings, including the
City's adoption of its housing element. Respondents also do not prove deficiencies in the site
inventory of the October 2022 Housing Element resulted from actions or omissions of 600
Foothill, SCAG or HCD. Nor do Respondents cite any authority suggesting a city or county may
be excused from substantial compliance with the Housing Element Law based on actions or
omissions of SCAG, HCD or a project applicant.
Respondents contend the City was permitted "to rely upon letters with site owners and
between itself and HCD not included specifically in its Housing Element" and the City "made
reasonable inferences" from the information it received from site owners. (Opposition to 600
Foothill 12:15-19.) Respondents rely on Martinez to support their claims. (see Martinez, supra,
90 Cal.App.5th at 248.)
Martinez addressed the City of Clovis' nonvacant site analysis under section 65583.2,
subdivision (g)(1); the Court did not analyze the heightened requirements of section 65583.2,
subdivision (g)(2). (See Martine;, supra, 90 Cal.App.5th at 248-250.) While Martinez held the
substantive material required by section 65583.2, subdivision (g)(1), need not appear in the
Housing Element itself, the Court did not suggest nonvacant sites may be included in a site
inventory if the agency lacks substantial evidence, or has not sufficiently investigated or
analyzed, whether the sites are "likely to be discontinued during the planning period/'
(§ 65583.2, subdivision (g)(2).)
Here, Respondents have not cited substantial evidence to support the City's position multiple
nonvacant sites listed in the October 2022 inventory could realistically be developed in a
manner to satisfy the City's RHNA obligations. In addition, that Respondents made substantive
revisions to the site inventory after October 2022 also supports a reasonable inference the City
did not complete the analysis and attain the evidence required by section 65583.2, subdivision
(g)(2), for many of the sites on its site inventory, before it adopted the October 2022 Housing
Element. (Compare AR 5124-5129 with 6054-6061.)
Exercising its independent judgment, the court concludes the City's October 2022 Housing
Element did not include a nonvacant site analysis that substantially complied with the Housing
Element Law, including section 65583.2, subdivision (g)(2).
HI
Page 27 of 39
Realistic Assessment of Development Capacity
The Housing Element Law requires that municipalities "specify for each site [in its inventory]
the number of units that can realistically be accommodated on that site." (§ 65583.2, subd. (c).)
The law provides "the number of units calculated" for each site "shall be adjusted" to account
for "the land use controls and site improvements requirement identified in paragraph (5) of
subdivision (a) of Section 65583, the realistic development capacity for the site, typical
densities of existing or approved residential developments at a similar affordability level in that
jurisdiction, and on the current or planned availability and accessibility of sufficient water,
sewer, and dry utilities." (Id. at subd. (c)(2).)
CHDF contends the October 2022 Housing Element did not substantially comply with these
statutory provisions because it failed to apply a "downward adjustment on the number of units
projected on each site to account for, among other constraints, the City's maximum floor -area
ratio of 1.5 (AR 4607), its 80-percent maximum fot-coverage requirement (AR 4566), its 35-foot
height limit (AR 4567), and significant parking requirements (AR 4572) for sites in mixed -use
zones." (CHDF Opening Brief 20:4-7.)
Respondents did not address or rebut CHDF's argument. (Sehulster Tunnels/Pre-Con v.
Traylor Brothers, Inc., supra, 111 Cal.App,4th at 1345, fn, 16 [failure to address point is
"equivalent to a concession"].) The court concludes the City's October 2022 Housing Element
did not substantially comply with Housing Element Law because the City failed to adjust the
development capacity for each site based on the factors set forth in section 65583.2,
subdivision (c)(2).26
Government Code Section 65583.2, Subdivision (h)
CHDF argues fewer than 50 percent of the October 2022 Housing Element's low-income sites
were zoned exclusively for residential use, and the City did not include analysis showing it
would "accommodate all of the very low and low-income housing need on sites designated for
mixed use [and] allow 100 percent residential use and require that residential use occupy 50
percent of the total floor area of a mixed -use project." (CHDF Opening Brief 20:21-23 [citing
§ 65583.2, subd. (h)].j CHDF supports its assertion with citations to the administrative record.
(CHDF Opening Brief 21:1-4 [citing AR 5124-5129, 4607-4610j; see also AR 4612.) Based on the
.2h During argument, the court engaged CHDF and Respondents at length on this issue. While
Respondents provide an explanation that their rezoning included the required adjustments, the
court finds Respondents conceded the issue by not addressing it in their brief. (Compare CHDF
Opening Brief 19:20-20:15 with Opposition to CHDF 10:10-11:20.) Respondents' analysis of
development constraints is not entirely clear and undeveloped in their brief. (See AR 4565-
4570.)
Page 28 of 39
evidence, CHDF argues the October 2022 Housing Element did not substantially comply with
section 65583.2, subdivision (h).'
Respondents do not squarely address CHDF's position, and they do not show, with citation to
the administrative record, the October 2022 Housing Element substantially complied with
section 65583.2, subdivision (h). (Opposition to CHDF 12:4-9.) Accordingly, the court concludes
the October 2022 Housing Element did not substantially comply with the Housing Element Law
for this reason as well.
Based on the foregoing, the court concludes the October 2022 Housing Element did not
substantially comply with the Housing Element Law. Accordingly, the City Council prejudicially
abused its discretion when it found in its May 1, 2023 Decision the Builder's Remedy did not
apply to the Project.
Respondents' Defenses to the HAA Causes of Action
Respondents raise a defense of unclean hands to the HAA causes of action asserted by 600
Foothill. Respondents also raise defenses of ripeness, exhaustion of administrative remedies,
and claim the petitions violate rules designed to prevent piecemeal litigation,
Unclean Hands
A party seeking equitable relief must have "clean hands" and inequitable conduct by the party
seeking relief is a complete defense. (Dickson, Carlson & Compillo v. Pole (2000) 83 Cal.App.4th
436, 446; Solos v. Sierra Chem. Co. (2014) 59 Ca1.4th 407, 432.) The plaintiff must "come into
court with clean hands, and keep them clean," or the plaintiff "will be denied relief, regardless
of the merits of his claim." (Kendall -Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th
970, 978.) For the doctrine to apply, "there must be a direct relationship between the
misconduct and the claimed injuries." (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52
Cal.App.4th 820, 846, citation omitted.)
Respondents contend "the only reasonable inference to draw [from the opposition evidence) is
that on the eve of final review and approval of the Housing Element containing the Site
Inventory, 600 Foothill's principal was running around town attempting to manipulate owners
to 'decline' inclusion on the inventory and derail the process," (Opposition to 600 Foothill 14:2-
5.) The court has reviewed all of the evidence cited by Respondents. (Koleda Decl. 99 46-51;
Hernandez Decl. 4E114, 5; AR 7081-7085, 5233; Sheridan Decl. Exh. DD.) Respondents' assertion
2' Section 65583.2, subdivision (h) provides in pertinent part: "At least 50 percent of the very
low and low-income housing need shall be accommodated on sites designated for residential
use and for which nonresidential uses or mixed uses are not permitted, except that a city or
county may accommodate all of the very low and low-income housing need on sites designated
for mixed use if those sites allow 100 percent residential use and require that residential use
occupy 50 percent of the total floor area of a mixed -use project."
Page 29 of 39
that Garret Weyand, one of 600 Foothill's principals, engaged in "deliberate attempts to
manipulate the Site Inventory" is speculative and not supported by the evidence. (Opposition to
600 Foothill 10:22.) To the contrary, the court finds Weyand's public advocacy in support of the
Project is not evidence of inequitable conduct. (See Reply Weyand Decl.) Respondents have not
demonstrated, by a preponderance of the evidence, 600 Foothill or any of its principals,
including Weyand and Jon Curtis, engaged in inequitable conduct that has a direct relationship
to any cause of action in 600 Foothifl's petition. Respondents failed to meet their burden of
demonstrating unclean hands and their entitlement to the defense,28
Ripeness, Exhaustion, and Piecemeal Litigation
"'A decision attains the requisite administrative finality when the agency has exhausted its
jurisdiction and possesses 'no further power to reconsider or rehear the claim/ Until a
public agency makes a 'final' decision, the matter is not ripe for judicial review." (California
Water impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1485.)
Relatedly, "[t]he exhaustion doctrine precludes review of an intermediate or interlocutory
action of an administrative agency. A party must proceed through the full administrative
process 'to a final decision on the merits.' " (Id. at 1489.) There are exceptions to the
exhaustion requirement, including "when the aggrieved party can positively state what the
administrative agency's decision in his particular case would be." (Edgren v. Regents of
University of California (1984) 158 Cal.App.3d 515, 520.)
Respondents do not show any lack of finality or any further administrative remedy to exhaust
as to the May 1, 2023 Decision. The May 1, 2023 Decision of the City Council is final because
there is no further avenue for administrative appeal. As discussed, the City disapproved (within
the meaning of the HAA) the Project. Nothing in the HAA requires Petitioners to complete C£QA
review before suing t❑ enforce the HAA.
Respondents argue 600 Foothill did not sufficiently raise issues pursued in this proceeding,
including that the City failed to rezone, the housing element does not meet its affirmatively
further fair housing obligation, as well as the site inventory issues. The court concludes
Petitioners sufficiently raised and preserved their contentions during the administrative
proceedings. (See AR 6284-6286, 6307-6317.) Many of the issues in these petitions were also
raised by HCD in letters to the City at the administrative level, including a notice of violation.
(AR 7170-7175.)
Respondents argue "[n]o express 'disapproval' of the entire project occurred hero ...."
(Opposition to CHDF 16:25.) While not entirely clear, Respondents seemingly suggest 600
Foothill should redesign the Project to avoid reliance on the Builder's Remedy. Respondents do
not develop an argument 600 Foothill has any legal obligation, under the circumstances here,
to redesign the Project "as a standard, nonbuilder's remedy project." (AR 7103.). Respondents
2E This defense only applies to 600 Foothill. Respondents do not develop any argument the HAA
claims of CHDF or Intervenors are subject to the defense_
Page 30 of 39
also do not show that any further administrative action, including appeal of the City's June 24,
2023 letter describing inconsistency between the Project and the City's general plan and zoning
ordinances (see AR 7176), could remedy the harm suffered by 600 Foothill when the City
Council determined the Builder's Remedy does not apply to the Project.
Moreover, Petitioners can positively state what the City's decision is with respect to 600
Foothill's application to develop the Builder's Remedy Project. In its May 1, 2023 Decision, the
City Council made clear any required land use approvals or entitlements would not be issued
for the Project as a Builder's Remedy project. Based on its review of the administrative record
and the parties' declarations, the court finds no reasonable possibility Respondents, including
the City Council, will change their position and process 600 Foothill's Project as a Builder's
Remedy under the HAA. Accordingly, even if some additional appeal or administrative process
were available, the futility exception to exhaustion applies under these facts, (See, e.g., Felkay
v. City of Santa Barbara (2021) 62 Cal.App.Sth 30, 40-41 [futility exception, which is a question
of fact, applied where city "made plain" it would not permit the proposed development]; Ogo
Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 832-34 [futility exception applied
where it was "inconceivable the city council would grant a variance for the very project whose
prospective existence brought about the enactment of the rezoning" that necessitated the
variance in the first place].)
Respondents do not demonstrate (1) the HAA claims in the petitions are unripe, (2) Petitioners
failed to exhaust their administrative remedies, or (3) Petitioners have violated rules designed
to prevent piecemeal litigation. Further, even if Petitioners have additional administrative
remedies (such as an appeal of the June 24, 2023 inconsistency letter), the court finds
exhaustion of such remedies is futile under the circumstances presented here.
CHDF's Claims of Bad Faith and ❑iscrimination Based on Race and Income
CHDF contends:
La Canada Flintridge officials clearly acquiesced to the biases and prejudices of city
residents when they revised the draft Housing Element's sites inventory and
rezoning program to eliminate multiple 'low-income` sites south of Foothill
Boulevard. This was a blatant violation of California and Federal fair housing laws
alike. (See Gov. Code, § 65008, subd. (b)(1)(C) ... ; Cal. Code Regs, tit. 2, § 12161,
subd. (c) .. ; Mhony Management, Inc., supra, 819 F.3d 581 ... ,) (CHDF Opening
Brief 17:13-21,)
As acknowledged in reply, CHDF did not plead a cause of action in its petition alleging the City
violated the Fair Housing Act or state or federal discrimination laws. (CHDF Reply 10:15-20.)
CHDF also did not move to amend its petition ❑r request leave to amend its petition. (See
Simmons v, Ware (2013) 213 Ca1.App.4th 1035, 1048. ["The pleadings are supposed to define
the issues to be tried."])
Page 31 of 39
In reply, CHDF argues the "City's discriminatory site -selection practices demonstrates the City
did not substantially comply with the Housing Element Law's requirements to affirmatively
further fair housing." (CHDF Reply 10:18-19.) However, CHDF failed to plead that claim in its
petition. (See CHDF Reply 10:20-21 [citing CHDF Pet. ¶1 1 22, 26, 29-30 (generalized allegations
the City "did not affirmatively further fair housing or provide an assessment of fair housing")].)
On the merits of CHDF's claim, even if the affirmatively further fair housing allegations in the
petition are interpreted to encompass CHDF's arguments about race and income discrimination
(a difficult task), the court finds Respondents' opposition persuasive. (Opposition to CHDF 13:5-
15:21.) There is insufficient evidence the City Council "acquiesced" to or acted based on public
comments at the August and September 2022 public hearings highlighted in CHDF's briefs. (See
e.g., AR 2602-2603 ("different value system and much more high crime ... the value system is
different than people that move here"], 3491-3494 [similar comments from same individual at
AR 2502-2603], 3539-3541, 3543-3545 ["dust off my shotgun" "likelihood of being some bad
apples"], 3493 [additional similar comments from commenter at AR 2602-2603 and AR 3491-
3494], 5107-5110 [crime and will become dangerous community], 5112 ["fear poor or homeless
people will move into La Canada and bring crime"].)
While some of the public comments were quite unfortunate, CHDF cites statements of
councilmembers out of context and does not show those councilmembers "agreed" with the
public comments highlighted by Petitioners. (CHDF Opening Brief 10:13-11:6.) Even if the
councilmembers could have stated their disagreement with certain public comments, but did
not, there is insufficient evidence to support an inference the City Council took any action on
the housing element based on the unfortunate public comments and discrimination.24
Other Contentions Related to the HAA Causes of Action
Several other contentions are not necessary to the court's ruling on the HAA claims. For
completeness, the court briefly addresses them.
The court agrees with Intervenors that the City did not have authority under the HAA or
Housing Element Law to backdate its housing element and "self -certify" or declare its housing
element to be in substantial compliance with state law as of October 2022. (Intervenors
Opening Brief 14:3-15:24.) Respondents appear to concede the point. (See Opposition to
Intervenors 19:18-21:7 [asserting City did not back date or self -certify].)
During argument, 600 Foothill provided a series of acts undertaken by Respondents that it
believed demonstrated bad faith. Many of those acts, however, flowed from the City's belief it
properly adopted the October 2022 Housing Element or the City's violation of the Permit
Streamlining Act (P5A) discussed infra. Based on all of the evidence before the court, the
evidence is insufficient to establish the City acted with bad faith and "will continue to use all
means to obstruct" as suggested by CDHF during argument.
Page 32 of 39
As argued by 600 Foothill, when HCD found the October 2022 Housing Element did not
substantially comply with the law, section 65585, subdivision (f) required City to take "one" of
the following actions: "(1) Change the draft element or draft amendment to substantially
comply with this article; [orj (2) Adopt the draft element or draft amendment without changes
[, but with] written findings which explain the reasons the legislative body believes that the
draft ... substantially complies with this article despite the findings of the department." (600
Foothill Opening Brief 14:16-19.) The court agrees the "City unlawfully blended these
approaches by making some changes in response to HCD's comments, adopting the February
2023 Housing Element with written findings explaining why the October 2022 Housing Element
was sufficient, and then resubmitting its revised draft to HCD." (600 Foothill Opening Brief
14:19-22.)
If the City believed its October 2022 Housing Element substantially complied with the Housing
Element Law, it should have taken the action set forth in section 65585, subdivision (f)(2).
Thereafter, the City could have sued for a judicial declaration that its October 2022 Housing
Element substantially complied with state law. The City did not do so here.
The court finds 600 Foothill's arguments based on section 65589.5, subdivisions (j) and (o) are
not ripe at this time. Once ripe, the claims are subject to exhaustion. (See 600 Foothill Opening
Brief 9:12-10:21; Pet. 1111 134-162.) Upon the remand ordered here, the City is required to
process the application as a Builder's Remedy project and in accordance with the HAA,
including sections 65589.5, subdivisions (j) and (o). Thus, it is premature to adjudicate today
whether the City has complied with those provisions of the HAA.
Relatedly, since the court concludes the City is required by taw to process the application
pursuant to the Builder's Remedy provision of the HAA, the court need not address the financial
infeasibility of a redesigned project. (600 Foothill Opening Brief 8:21-9:3 and 10, fn. 6.)
Summary of HAA Causes of Action and Scope of Writ Relief
The court finds the City Council prejudicially abused its discretion with its finding in its May 1,
2023 Decision that the Builder's Remedy does not apply to the Project. As a remedy, the court
grants 600 Foothill's petition and will issue a writ directing Respondents to set aside the May 1,
2023 City Council decision finding 600 Foothill's Project does not qualify as Builder's Remedy
and compelling the City to process the application in accordance with the HAA and state law.
That remedy is consistent with section 65589.5, subdivision (k)(1)(A)(ii) of the HAA (compliance
required in 60 days) and Code of Civil Procedure section 1094.5, subdivision (f).
CHDF argues the court should order the Project "approved" due to the City's alleged bad faith
and unlawful discrimination. (CHDF Opening Brief 23:18-24:24.) For the reasons discussed, the
court finds evidence the City Council "acquiesced" to or acted based on the public comments
from the August and September 2022 public hearings highlighted in CHDF's briefs insufficient.
(See e.g., AR 2602-2603, 3491-3494, 3539-3541, 3543-3545, 3493, 5107-5110, 5112.) CHDF has
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not rnet its burden of demonstrating Respondents acted in bad faith in connection with those
public comments.
CHDF also argues "[wjhen 600 Foothill subsequently proposed a project under the HAA's
builder's remedy, the City Council concocted a bizarre scheme to evade judicial review of their
decision to disapprove that project, ...." (CHDF Opening Brief 24:15-18.) 600 Foothill contends
the court should order Respondents to approve the Project on similar grounds. (600 Foothill
Reply 18:13-19:8.) While the court finds the City prejudicially abused its discretion with its May
1, 2023 Decision finding the Builder's Remedy inapplicable to the Project, the court does not
find sufficient evidence to conclude the City Council acted in bad faith when it made its legally
incorrect decision.
Further, even if it could be argued the City Council lacked a good faith reason to find the Project
did not qualify as a Builder's Remedy, Petitioners do not show it would he equitable for the
court to compel the City to approve the Project. Among other reasons, CEQA review is
specifically preserved by the HAA. (See § 65589.5, subds. (e) and (o)(6); Schellinger, supra, 179
CaL.App.4th at 1245.) In the exercise of the court's discretion, the court finds a writ compelling
Respondents to approve the Project, without CEQA review, would not be an equitable or
proportionate remedy for the violations of the HAA at issue. Respondents should be permitted
on remand to process 600 Foothill's application, as a Builder's Remedy, in conformance with
state law, including the HAA and CEQA.
Based on the foregoing, the HAA causes of action are GRANTED IN PART.
600 Foothill's First Cause of Action — Violation of Housing Element Law
600 Foothill prays for a writ of mandate "compelling Respondents to adopt a revised housing
element pursuant to Government Code Section 65754. 2" and "to complete the required
rezoning consistent with an HCD-approved housing element." (Pet. Prayer 1}11 1-2.) 600 Foothill
filed its petition on July 21, 2023. The petition alleged the City had not substantially complied
with the Housing Element Law at that time. (Pet. 1191.)
As discussed, the City completed the required rezoning in September through November 2023,
after 600 Foothill filed its petition. On November 17, 2023, HCD sent a letter to the City finding
the City had "completed actions to address requirements described in HCO's April 24, 2023
review letter" and was in substantial compliance with the Housing Element Law. (See Coy 0ec1.
11 12, Exh. D.)
600 Foothill has not pleaded in the petition, or argued in its briefing, there is any deficiency in
the February 2023 Housing Element that HCD found to be substantially compliant with the
Housing Element Law in November 2023, after the City completed its rezoning. Accordingly, the
first cause of action is moot. ( Wilson & Wilson v. City Council of Redwood City (2011) 191
Cal.App.4th 1559, 1573 ("A case is considered moot when 'the question addressed was at one
time a live issue in the case,' but has been deprived of life 'because of events occurring after
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the Judicial process was initiated/ .... 'The pivotal question in determining if a case is moot is
therefore whether the court can grant the plaintiff any effectual relief.'']]
600 Foothill's first cause of action is DENIED as moot,
600 Foothill's Second Cause of Action — Affirmatively Furthering Fair Housing
600 Foothill prays for a writ "compelling Respondents to comply with their statutory obligation
to Affirmatively Further Fair Housing," (Pet. Prayer 119.) 600 Foothill's writ briefing, however,
only challenges the City's compliance with affirmatively further fair housing obligations as to
the October 2022 Housing Element and required rezoning. (See 600 Foothill Opening Brief
21:10-12; Pet. ¶¶ 106-108.) 600 Foothill does not develop any argument the City's February
2023 housing element, after completion of the required rezoning, does not comply with the
City's affirmatively further fair housing obligations. Accordingly, the second cause of action is
moot. (Wilson & Wilson, supra, 191 Cal.App.4th at 1573.) Alternatively, to the extent 600
Foothill contends in the petition the City remains out of compliance with its affirmatively
further fair housing obligations (see Pet. 11105), 600 Foothill has not sufficiently supported its
position with evidence and legal analysis.
600 Foothill's second cause of action is DENIED as moot.
600 Foothill's Sixth Cause of Action — Violation of the PSA
600 Foothill contends the City violated the PSA in several ways with its incompleteness
determinations and the City Council's May 1, 2023 Decision. (600 Foothill Opening Brief 19:14-
20-25; Pet, ¶¶ 163-175.) 600 Foothill prays for a writ "compelling Respondents review and
process applications pursuant to the Permit Streamlining Act's provisions, including refraining
from refusing to process development applications based on erroneous assertions of
incompleteness." (Pet, Prayer 114.)
600 Foothill has demonstrated Respondents violated the PSA in at least two respects.
Specifically, section 65943, subdivision (a) provides "[i]f the application is determined to be
incomplete, the lead agency shall provide the applicant with an exhaustive list of items that
were not complete." (Emphasis added.) In addition, the list "shall be limited to those items
actually required ❑n the lead agency's submittal requirement checklist," (Ibid. {Emphasis
added].) "In any subsequent review of the application determined t❑ be incomplete, the local
agency shall not request the applicant to provide any new information that was not stated in
the initial list of items that were not complete." (/bid. {Emphasis added].)
While neither party has cited any published authority interpreting these provisions, the plain
language of section 65943, subdivision (a) is clear. The PSA required the City to provide 600
Foothill with an "exhaustive list" of incomplete items in its First Incompleteness Determination;
incomplete items are limited to items on the City's "submittal requirement checklist"; and the
City could not later request new information it omitted from the initial list. Respondents
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provide no alternative interpretation of the statutory language. (Opposition to 600 Foothill
20:5-21:8.) Director Koleda reports "it is a common practice for the City to provide information
to a developer in the early stages of the application review regarding ways that the
development does not meet applicable development standards." (Koleda Dec1. 1142 [emphasis
added].) Even if true, the City's common practice does not supersede the statutory
requirements of the PSA.
In violation of these provisions of the PSA, the Second incompleteness Determination found the
Project was inconsistent with City's zoning and general plan standards because the Project did
not qualify as a Builder's Remedy. (AR 6280-6281,) However, that issue was not raised in the
First Incomplete Determination and was also not included on the City's submittal requirement
checklist. (See AR 5276-5279, 6280-6281; see also Koleda Decl. 11 42.) Accordingly, the City
violated section 65943, subdivision (a).30
Respondents suggest 600 Foothill was not prejudiced by the violations of the PSA because the
application was deemed complete on May 26, 2023. (Oppo. to 600 Foothill 22:19-21 [citing AR
7169].) Respondents do not cite any authority for the proposition that PSA violations are
excused by a purported lack of prejudice. Moreover, 600 Foothill was prejudiced when
Respondents made a legally unauthorized incompleteness determination,
600 Foothill does not cite a statute or published authority suggesting the appropriate remedy
for these types of violations of the PSA is an order compelling the City to approve the project.
As discussed for the HAA causes of action, the court will grant a writ directing Respondents to
set aside the City Council's May 1, 2023 Decision and process 600 Foothill's application in
accordance with the HAA. The violations of the PSA proven by 600 Foothill provide additional
support for that remedy, 600 Foothill does not dernonstrate any additional relief is justified
under the PSA.
To the extent 600 Foothill prays for a writ directing the City to comply with the PSA in the
future or with respect to development applications of non-parties (see Prayer 1] 4), 600 Foothill
600 Foothill also contends "Respondents' Second incompleteness Determination was issued
on March 1, 2023 (AR 6280-81) more than 30 days after Petitioner submitted the Project
application on January 13, 2023." (600 Foothill Opening Brief 20:22-24.) 600 Foothill did not pay
the fees for the application until January 31, 2023, which was less 30 days before March 1,
2023. (AR 7161-7162.) When submitting its application, the City advised 600 Foothill "the 30-
day time limit to determine completeness of a development application per Government Code
Section 65943 does not begin until all invoiced fees have been paid." (AR 7161-7152) Section
65943 is ambiguous as to whether the 30-day period begins running when the application is
submitted/received or when the fees are paid. While 600 Foothill has a colorable argument the
30-day period began when City "received" the application on January 13, 2023, Respondents'
alternative interpretation is also reasonable. 600 Foothill has not submitted any legislative
history to support its interpretation. Accordingly, the court is not persuaded 600 Foothill met its
burden as to it complaint about timeliness under the PSA.
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does not sufficiently support such a prayer in its briefing. Specifically, 600 Foothill does not
explain how it has standing to enforce the PSA on behalf of non-parties, or how any claim with
respect to the City's future compliance with the PSA is ripe for judicial review.
600 Foothill's sixth cause of action is GRANTED IN PART. The court finds the City violated the
PSA in the manner it processed 600 Foothill's application. As a remedy, the May 1, 2023
Decision finding that the application was incomplete because the Project does not qualify as a
Builder's Remedy must be set aside. In all others respect, the sixth cause of action is DENIED.
600 Foothill's Seventh and Eighth Causes of Action — State Density Bonus Law and Subdivision
Map Act
600 Foothill argues the City Council's May 1, 2023 Decision effectively denied 600 Foothill's
requests for a density bonus and concessions or incentives under the State Density Bonus Law,
and "necessarily constituted a disapproval" under the Subdivision Map Act. (600 Foothill
Opening Brief 21:25-22:12; see Pet. 1111176-197.)
The court's analysis of the seventh and eighth causes of action is similar to that set forth earlier
with 600 Foothill's claims under section 65589.5, subdivisions (j) and (o). Upon remand, the City
will be required to process 600 Foothill's application as a Builder's Remedy and in accordance
with the HAA and other state housing laws, including the State Density Bonus Law and the
Subdivision Map Act. It is premature at this time to adjudicate whether the City has complied
with those statutes. 600 Foothill has been informed that the City's review process under the
State Density Bonus Law and the Subdivision Map Act is ongoing. (See AR 7176-7178, 7169.)
Accordingly, 600 Foothill does not prove its seventh and eighth causes of action are ripe for
judicial review or that the issues have been exhausted. Further, to the extent 600 Foothill seeks
a writ directing the City to "approve" the Project in full, it does not demonstrate it is entitled to
that remedy, as discussed earlier.
600 Foothill's seventh and eighth causes of action are DENIED.
600 Foothill's Ninth Cause of Action is Stayed
Respondents specially moved to strike 600 Foothill's ninth cause of action (right to fair hearing)
pursuant to Code of Civil Procedure section 425.16. The court denied the motion, and
Respondents appealed. Given the appeal, the ninth cause of action is stayed. (See Code Civ.
Proc., §§ 425.16, subd, (i), 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal,4th 180, 195.)3'
1/!
31 Respondents conceded at the time the court heard the special motion to strike that an
appeal would stay only the ninth cause of action.
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Causes of Action for Declaratory Relief by AM Petitioners
Issuance of a declaratory judgment is discretionary. (Code Civ. Proc., § 1060.) Further, "it is
settled that declaratory relief is not an appropriate method for judicial review of administrative
decisions." (Selby Realty Co. v. City of San Buenaventura (1973) 10 Ca1.3d 110, 127; accord
Sheer v. County of El Dorado (2022) 84 Cal.App.5th 394, 414 ("administrative mandamus is 'the
proper and sole remedy' to challenge a local agency's application of the law (e.g., application of
a zoning ordinance to a particular property)").)
Although the petitions include various requests for declaratory relief, all such requests pertain
to the validity of City Council's May 1, 2023 Decision, including the City Council's determination
the October 2022 Housing Element substantially complied with state law and the Project did
not qualify as a Builder's Remedy, None of the Petitioners have developed a legal argument
that declaratory relief is an appropriate, or necessary, form of judicial review of the
administrative decisions at issue. Accordingly, Petitioners have not demonstrated they are
entitled to declaratory relief.
600 Foothill's eleventh cause of action for declaratory relief, CHDF's second cause of action for
declaratory relief, and Intervenors' second cause of action for declaratory relief are DENIED as
unnecessary given the court's decision on the HAA causes of action.
Retention of Jurisdiction
The court found Respondents, "in violation of subdivision (d), disapproved a housing
development project ... without making findings supported by a preponderance of the
evidence."3z (§ 65589.5, subd. (k)(1)(A)(i).) Accordingly, the court is required to 'retain
jurisdiction to ensure that its . , judgment is carried out ..." (Id. at subd. (k)(1)(A)(ii).)
CONCLUSION
The petitions of 600 Foothill, CHDF, and Intervenors to enforce the HAA are GRANTED IN PART.
The court finds the City Council prejudicially abused its discretion when it found in its May 1,
2023 Decision that the Builder's Remedy does not apply to the Project. The court will grant a
writ directing Respondents to set aside the City Council's decision, dated May 1, 2023, finding
600 Foothill's application does not qualify as a Builder's Remedy and to process the application
in accordance with the HAA and state law. The HAA claims are denied in all other respects.
600 Foothill's first, second, seventh, and eighth causes of action are DENIED.
37 The City's finding its October 2022 Housing Element was in substantial compliance with the
Housing Element Law was not supported by substantial evidence. As discussed supra, HCD had
advised the City why the October 2022 Housing Element was not in substantial compliance.
Moreover, Director Koleda on January 11, 12 and February 9, 2023 appeared to accept HCD's
evaluation that the City could not achieve substantial compliance with the Housing Element
Law without "additional changes" and "clarifications," (AR 12894, 13011.)
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600 Foothill's sixth cause of action is GRANTED IN PART. The court finds the City violated the
PSA in the manner it processed 600 Foothill's application and, as a remedy, the May 1, 2023
❑ecision finding the application was incomplete because the Project does not qualify as a
Builder's Remedy must be set aside. in all others respect, the sixth cause of action is DENIED.
600 Foothill's ninth cause of action is stayed pending Respondents' appeal ❑f denial of its anti-
SLAPP motion. (See Code Civ, Proc. §§ 425.16, subd, 0), 916, subd. (aj.)
600 Foothill's eleventh cause of action for declaratory relief, CHDF's second cause of action for
declaratory relief, and Intervenors' second cause of action for declaratory relief are DENIED.
As to Case No. 235TCP02614 brought by CDHF, the court will enter judgment on the first cause
of action in favor of CDHF and Intervenors on the first cause of action.
As to Case No. 235TPCO2575 brought by 600 Foothill, the court does not enter judgment at this
time given the pending appeal on 600 Foothill's ninth cause ❑f action and Respondents' special
motion to strike. The matter is continued to December 4, 2024 at 9:30 a.m. for a hearing on the
status of Respondents' appeal.
The court will retain jurisdiction ❑ver this matter (in both cases) as required by section 65589.5,
subd. (k)(1)(A)(ii).
IT IS SO ❑RDERED.
March- 2024
Hon. Mitchell Becklof
Judge of the Superior Court
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