Authors: Katharine Van Dusen Robert B. Hodil
In a decision partially published on November 30, 2022, Save Lafayette v. City of Lafayette[1], the First Appellate District Court of Appeal upheld the City of Lafayette’s approval of the Terraces of Lafayette (the “Project”), a 315-unit housing development project, 20% of which will be affordable to lower-income tenants. That opinion—now final, as the California Supreme Court has denied review[2]—allows an affordable housing project that drew national press attention to move forward.
Background
In early 2011, the City received the developer’s application for the Project, on an approximately 22-acre site adjacent to State Highway 24 north of the Pleasant Hill Road entrance/exit. At that time, the City’s General Plan land use designation and zoning for the Project site allowed multi-family development at a greater density than proposed. The City certified the Environmental Impact Report (“EIR”) prepared for the Project in 2013, but did not vote on whether to approve the Project at that time.
Instead, City staff and the developer entered into a “Process Agreement,” which allowed the City to devote its time and resources towards consideration of an alternative project, with 44 single family homes, a playfield, dog park, tot lot, and associated parking. Under this Agreement, the developer agreed that the City could suspend processing of its Project application, on the condition that the City would resume processing it at the developer’s request.
The City approved the alternative, 44-home project in 2015, but over the next three years opponents of that project successfully blocked its development through the referendum process and associated legal challenges.
In 2018, shortly after project opponents’ efforts to stop the 44-home project succeeded, the City Council changed the General Plan land use designations and zoning of the Project site (so as to no longer permit multi-family housing) and the developer terminated the Process Agreement and asked the City to resume processing the original Project. Around that time, the City engaged Coblentz Patch Duffy & Bass to serve as its legal counsel with respect to the Project. The City resumed processing the Project application, and prepared an addendum to the 2013 EIR. The Planning Commission approved the addendum and the Project on July 1, 2020, and the City Council affirmed the approvals on appeal in the early morning hours of August 25, 2020, after a long public meeting.
Courts Reject Challenges to the City’s Approval of the Project
One month later, Save Lafayette filed a writ petition to challenge the Project’s approval. It argued that the City had no power to process the developer’s 2011 Project application in 2018, because the Permit Streamlining Act (“PSA”) had required the City to process the application within 180 days. According to Save Lafayette, the City should have processed the Project as if the application had been submitted in 2018, not 2011. If Save Lafayette were correct, the General Plan and land use designations in effect in 2018 would have barred the Project. Save Lafayette also claimed that the addendum to the 2013 EIR violated the California Environmental Quality Act (“CEQA”), because the City should have instead prepared a supplemental EIR. The trial court rejected both arguments.
Save Lafayette appealed the trial court’s decision, and the First District Court of Appeal unanimously affirmed the trial court’s decision, a sound rejection to Save Lafayette’s claims. In the published portion of its decision, the Court explained that the Housing Accountability Act (“HAA”) prohibits a local agency (such as the City) from disapproving an affordable housing project unless it makes one of certain findings, such as that the project is inconsistent with the general plan land use designation and zoning that existed when the project application was deemed complete. The Court of Appeal concluded that the Project application was deemed complete in 2011 and rejected Save Lafayette’s arguments that the Project’s application had been withdrawn.
The Court explained that the PSA did not affect this determination, for four reasons.
- First, even if the City failed to meet the PSA’s deadlines, nothing in the PSA results in an application being deemed withdrawn, disapproved, or resubmitted at a later date. To the contrary, the PSA expressly states that the potentially available remedies for a violation of its deadlines are that the application is deemed complete or deemed approved.
- Second, the Project application had been deemed complete in 2011 and no resubmission was required or had occurred.
- Third, Save Lafayette’s interpretation of the PSA conflicted with its express provision requiring agencies to make findings specifying reasons for the disapproval of development applications other than the agency’s failure to act within the PSA’s deadlines.
- Fourth, the HAA’s protections against land use redesignations and rezonings occurring after a project is deemed complete, and the Legislature’s intent in curbing local agencies’ ability to deny housing projects, weighed in favor of relying upon the City’s 2011 determination that the Project application was deemed complete, rather than Save Lafayette’s preferred later date after the City had down-zoned the project site.
In an unpublished portion of its decision, the Court upheld the adequacy of the City’s 2013 EIR and the 2020 addendum, and held that substantial evidence supported the City’s decision to prepare an addendum rather than a supplemental EIR.
The Court of Appeal’s decision—left intact by the Supreme Court—is the first appellate decision considering the relationship between the PSA’s deadlines and the HAA’s protections for qualified housing projects, including affordable housing developments. Its analysis makes clear that projects can obtain the benefits of the Housing Accountability Act even after expiration of the Permit Streamlining Act’s deadlines. It is also another important published decision that gives full weight to the stated legislative intent in the HAA that it be “interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.” The Legislature in recent years has strengthened housing laws, particularly the HAA, and Save Lafayette is the latest affirmation that those changes have real impact.
[1] (2022) 85 Cal. App. 5th 842.
