Judge Curtis A. Kin, Case Number: 24STCP01880, Date: 2025-01-30 Tentative Ruling

Petitioner Cesar Chavez 888, LLC seeks an order directing respondents City of Los Angeles and East Los Angeles Area Planning Commission (collectively “City”) to set aside a decision granting an appeal to overturn the approval of a residential development and to enter a different decision to deny the appeal and approve the development.

Petitioner owns real property at 2115-2125 East Cesar Chavez Avenue and 301-309 North Chicago Street (the “Property”) in Boyle Heights. (AR 12, 204.) The Property consists of two lots improved with two commercial buildings and three single-family rent-controlled residential units. (AR 180, 205.) The Project proposes construction of a new, six-story, 55,265 square-foot building with 50 residential units and around 4,030 square feet of commercial area. (AR 396.)

Five of the 50 residential units will be reserved for extremely low-income households. (AR 401.) In addition, under state law, the demolition of the three rent-controlled units to make way for the Project will require that all 50 units in the Project be rent stabilized. (AR 2493; Pet. RJN Ex. I [LAMC § 151.28.A].) Tenants displaced by the demolition will also have the right to return and occupy the newly constructed rent-controlled units. (AR 204-06.)

The Project would be developed along the Brooklyn Avenue Historic Corridor. (AR 399.) While the public right-of-way is considered historic, the adjacent private property is not. (AR 493.) The City’s Office of Historical Resources found the Project is consistent with the historical character of the Corridor. (AR 373-80, 394, 493-94.)

The Property is zoned C2-1-CUGU, located in the Adelante Eastside Redevelopment Plan (“Redevelopment Plan”), and designated for Regional Center Commercial land uses. (AR 224-26.) The Project required only one discretionary entitlement—a determination under LAMC § 11.5.14.D that it is consistent with the Redevelopment Plan. (AR 401-05.)

On October 14, 2021, petitioner filed its application for a Redevelopment Plan Project Compliance Review. (AR 112, 113, 223.) The City assigned a planner to the Project on April 25, 2022, indicating that it had determined the Project application to be complete. (AR 808, 1370 [“The City will not process incomplete applications”].) There is no evidence that the City notified petitioner of alleged inconsistencies with the objective development standards within 30 days of the application being deemed complete.

The City later expressly found the Project to be consistent with all applicable land use and zoning policies and regulations. (AR 397 [“As shown in the case file, the project is consistent with the applicable Boyle Heights Community Plan designation and policies and all applicable zoning designations and regulations”], 406-13, 2544 [City Planner: “[B]ecause this project does meet all objective zoning standards, you would have to make that health and safety finding”].) The City also found the Project to be exempt from CEQA. (AR 396-99.)

On August 31, 2023, the Planning Department issued a Director’s Determination approving the Compliance Review for the Project. (AR 401-15.) The Director’s Determination included 12 pages of detailed findings and conditions of approval. (AR 402-13.) The findings confirmed the Project complies with the regulations, standards, policies, and goals of the Redevelopment Plan and is exempt from further CEQA review. (AR 406-13.)

On August 30, 2023, citing concerns over displacement and gentrification, Los Angeles City Councilmember Kevin de León introduced a motion for the Council to instruct the Planning Department to establish an Interim Control Ordinance (“ICO”), which would prohibit the issuance of demolition permits on residential units in Boyle Heights pending an update to the Boyle Heights Community Plan. (Pet. RJN Ex. C.) Petitioner’s counsel submitted a letter opposing the ICO as violating the state Housing Accountability Act (“HAA”). (AR 1198-1203.) Councilmember De León had also brought the motion to the attention of the East Los Angeles Area Planning Commission (“APC”), urging that the Project be evaluated in the context of the proposed ICO. (AR 800-03.) Petitioner’s counsel responded, providing evidence that the ICO violated state law as applied to the Project. (AR 1198-1203, 1240.) The City Council adopted the ICO on December 15, 2023, and has since amended and extended it. (Pet. RJN Exs. D-H.)

On September 15, 2023, a commercial tenant of one of the buildings proposed for demolition filed an appeal to the APC (the “Appeal”). (AR 418-22.) On November 8, 2023, the Planning Department issued an Appeal Recommendation Report (“Recommendation Report”), recommending that the Appeal be denied. (AR 529-41.)

In the Recommendation Report, the Planning Department explained that the Appeal’s reliance on the proposed updated Community Plan was erroneous because that plan had not yet been enacted and that, in any event, the Project satisfied the goals and policies of both the proposed and current Community Plans. (AR 533-35.) The Recommendation Report explained that the Appeal presented no substantial evidence that the Project would cause a significant environmental impact, including any alleged hazardous waste impacts. (AR 535-38.) It addressed the community opposition to the Project. (AR 538-39.) It explained that the Project would provide two additional affordable units than required under state law. (AR 539.) It also addressed traffic, historic character, and other Appeal comments. (AR 540-41.)

Under LAMC § 11.5.14.D.5.g.3.ii, the APC had to act on the Appeal within 75 days after the expiration of the appeal period, making the APC’s last day to act November 29, 2023. (AR 796, 1373 [“The Area Planning Commission shall act within 75 days after the expiration of the appeal period”].) On November 8, 2023, the APC noticed a public hearing on the Appeal, but cancelled it due to lack of a quorum. (AR 2346-50 [Item 5].) The City asked, and petitioner agreed, to extend the deadline to act on the Appeal to December 20, 2023. (AR 796.)

The APC then scheduled the Appeal hearing for December 13, 2023. (AR 2351-54.) The Planning Department reissued its Recommendation Report. (AR 935-48.) Prior to the hearing, counsel for petitioner sent a letter asserting the Project’s compliance with applicable general plan and zoning requirements. Counsel argued that the Project complied with residential unit replacement requirements and that state law gives existing tenants the right to return to the new building in comparable units at a price affordable to the same or lower income category as the demolished units and the right to relocation assistance funds. (AR 805, 204-06, 539.) Counsel also maintained that the HAA required the Project to be approved at the requested density unless the APC were to make specific health and safety findings. (AR 804-12.)

At the beginning of the hearing, the case planner gave a presentation. (AR 922-33, 2358-67.) Among other things, the planner acknowledged that the HAA applies, and the APC action must be consistent with the HAA. (AR 2361-62.) The planner explained why the Appeal was unmeritorious. (AR 2362-67.)

The appellant spoke (AR 2368-71), as did petitioner’s representative (AR 2371-75). There were 50 speaker cards submitted. (AR 2376.) When public comment began, a City representative announced that no request for a translator was made to the City. (AR 2378-80.) The APC heard public comment from English speakers. (AR 2380.) Although a translator was found and arrived, the APC could not accommodate simultaneous translation. The APC proposed continuing the hearing to January 10, 2024. (AR 2393-95.) Petitioner did not consent to the postponement. (AR 2395.) In response, the City Attorney advised the APC that the LAMC “does not include a failure to act provision[,] [s]o you would retain jurisdiction even if the applicant does not agree to the continuance.” (AR 2395-96.) In other words, although the Code requires the APC to act within 75 days, the Code does not impose a penalty for untimely action. (AR 2395-96.) The APC continued the hearing to January 10, 2024, over petitioner’s objection. (AR 2398.)

Before the hearing on January 10, 2024, Planning again reissued the Recommendation Report. (AR 1261-74.) At the outset of the hearing, Planning Department staff again presented the Project and recommended that it be approved and the Appeal denied. (AR 2418-19, 1246-59.) The City Planner stated that the Project was vested in the rules and regulations at the time petitioner applied for building permits and paid associated fees. (AR 2507; see also AR 194-203 [filing date of demolition permit application was on or before 8/20/21].) Because the ICO was not in effect at the time petitioner was vested, the City Planner stated that the ICO had no effect on the Project. (AR 2507-08.) If the Project was denied, the City Planner said that any new project would be impacted by the ICO prohibition. (AR 2507-08.)

The planner reemphasized the standards of the HAA, observing that, under the HAA, the APC “may not deny, reduce the density of, or make infeasible” the Project absent “specified written findings based upon a preponderance of the evidence that a specific adverse health or safety impact exists.” (AR 2421-22.) The APC allowed the appellant (AR 2430-33, 2484-85) and petitioner’s representative (AR 2434-38, 2485-88) to repeat their presentations and again heard comments from the public in the room and online. (AR 2430-88.)

Public comment was decidedly against the Project. (AR 2438-84.) Most commenters were community members who opposed the Project because they feared gentrification and displacement. (AR 2440-46, 2448-51, 2453-67, 2473.) Some speculated the Project site might contain hazardous waste due to the Exide recycling facility in Vernon. (AR 2442, 2462-63.) Others maligned the petitioner. (AR 2432-33, 2449-50.) Their comments were continuously met with applause from the crowd. (AR 2433, 2444-52, 2454-67.) A representative for Kevin de León spoke in opposition to the Project. (AR 2476-84.) At the conclusion of public comment, the case planner responded to the areas of concern raised by the commenters and appellant and explained why none was meritorious. (AR 2490-94.)

The Commissioners deliberated. (AR 2494-2560.) The City Attorney emphasized again the standards of the HAA in response to Commissioner questioning. (AR 2514-16.) The APC, largely antagonistic to the Project, attempted to find a rationale for denying the Project. (AR 2514-2516, 2535-2536, 2543.) One commissioner pondered whether the fact that there may be persons who do not have “good credit” was grounds to deny the Project. (AR 2542.) Another questioned whether immigrants would be displaced by the Project. (AR 2543.) The Planner again reminded the APC of the HAA standard: “[B]ecause this project does meet all objective zoning standards, you would have to make that health and safety finding” to disapprove the project. (AR 2544.) Several commissioners asked Planning staff to consider other factors to justify the denial of the Project, including the displacement of current businesses and change to a historic resource that the Project would cause, as well as the fact that most of the units in the Project would be rented at market rate. (AR 2536-46.) The City Attorney observed that the Director’s approval was supported by substantial evidence, and that the Commissioners’ desire that the department “find contrary evidence to their decision … wouldn’t be something that Planning could do ….” (AR 2546.)

The APC discussed continuing the item again. (AR 2546-60.) The City Attorney again advised the APC that they could violate the LAMC’s 75-day mandate without penalty. (AR 2554.) Petitioner’s representative declined to consent to another continuance, which was disregarded. (AR 2556-57.) The APC continued the matter to March 13, 2024. (AR 2559-60.)

The Planning Department issued the Recommendation Report a fourth time. (AR 1389-1402.) At the start of the March 13, 2024, hearing, staff again recapped the Project and the recommendation of approval, emphasizing, “the [P]roject meets all [] applicable zoning requirements and objective zoning standards.” (AR 2603, 1521-50.) Appellant’s and petitioner’s representatives again presented. (AR 2613-21; see also AR 1363-78.) The APC heard public comment, which again focused on concerns of displacement and gentrification. (AR 2622-56.) Councilmember De León’s office sent a representative who also spoke against the Project for the same reasons. (AR 2656-59.) There were several disruptions by the attendees, and the APC threatened to have them removed. (AR 2639, 2664, 2758.)

Just like the January 10 hearing, the APC struggled to reach a decision. (AR 2664-2777.) As deliberations continued, a majority—Commissioners Marquez, Gutierrez, and Avila-Hernandez—voiced their concerns about the Project. (AR 2666-84.) None of them, however, articulated a significant health or safety impact based on objective, written standards, which would allow them to deny the Project under the HAA. (AR 2744-77.) The focus of the deliberations remained on concerns of gentrification and displacement. (AR 2666-71.) The planner responded that “gentrification” and “displacement” is a “threat in general” and “isn’t enough evidence to tie it back to a—that housing accountability need in terms of a health specific health safety impact.” (AR 2679.) As the majority group moved toward denial, both the planner and the City Attorney continued to remind the APC of their burden under the HAA. (AR 2691-93, 2714-15, 2734-37, 2740-41, 2743-44.) Commissioner Avila-Hernandez admitted that, given the evidence, the HAA compelled approval of the Project: “the choices that we have before us are to approve it, right? Approve the recommendation, deny the appeal or be in violation—put the city in violation of the statewide act if we deny it ….” (AR 2697-98.)

President Yap made a motion to deny the appeal and approve the Project. (AR 2716-17.) The majority group voted no, and the motion failed. (AR 2717-18.) Commissioner Avila-Hernandez stated that she voted no because “I agree with the community’s position” but conceded “I don’t think I could develop a written, factual public health and safety impact response.” (AR 2720.)

Commissioner Gutierrez made a motion to grant the appeal, deny the Project, “and adopt the findings we stated earlier around the eviction crises that are—that’s happening in CD14 and that we’ve been seeing the trends going up” and “the findings that Commissioner Avila-Hernandez mentioned earlier around not taking into the account the Displacement Index into the decision of this project.” (AR 2733-34.) The City Attorney interjected and reminded Commissioner Gutierrez that the motion would also need to address the required HAA findings. (AR 2734-35.) That motion did not receive a second.

Deliberations continued; the majority group continued to discuss gentrification but could not articulate a health or safety basis for denial consistent with the HAA. (AR 2764-65.) Commissioner Gutierrez recognized that her earlier motion did not meet the HAA’s standards, and Commissioner Avila Hernandez agreed. (AR 2768 [Commissioner Gutierrez: “[F]rom my understanding, the findings that I shared earlier were not sufficient enough for it be like taken into account for the motion; is that correct in my understanding? … Commissioner Avila-Hernandez: “That’s also my understanding that the findings that we’ve tried to link to it are not sufficient. Based on the standard from the statewide law”].) Given the continued impasse, President Yap made another motion to deny the appeal, which again failed 2-3. (AR 2770-73.)

Commissioner Gutierrez again recognized that her original motion was not a sufficient basis for denial under the HAA. (AR 2773.) She nonetheless made essentially the same motion to deny the Project based on generalized gentrification and displacement issues: “I want to state the eviction filings that were lifted by CD14 representative during public comment. I want to lift up the displacement index that was lifted in what was shared with us through public comment.” (AR 2775.) She cited two alleged inconsistencies with subjective Redevelopment Plan policies on quality of life and the promotion of a range of housing types, rent levels, and ownership. (AR 2775.) The City Attorney reminded Commissioner Gutierrez about the need to make HAA findings, and Commissioner Gutierrez responded: “I would, you know, look at some of the displacement study that was shared with us in the record, and public comment that was given in testimony by residents that will be directly impacted by this and them sharing their, you know, their stress levels, their concerns, their worries around where they’re going to live….” (AR 2776.)

The motion to grant the appeal and overturn the Planning Director’s approval of the Project passed 3-2. (AR 2777.)

On May 1, 2024, the City mailed a document entitled Letter of Determination (“LOD”). (AR 1554-59.) In the LOD, the APC denied the Redevelopment Plan Project Compliance Review because it determined that it could not make the required findings under LAMC section 11.5.14 D.5. (AR 1554; see also Resp. RJN Ex. A [LAMC §11.5.14 D.5].) Specifically, the APC found that the Project does not substantially comply with the relevant redevelopment regulations, findings, standards, and provisions of the Redevelopment Plan. (AR 1556-57.)

The APC found that the project “will decrease the quality of life for those who live and work in and visit the Project area; reduce opportunities for residents who reside in or adjacent to the Project Area; and not promote a wide range of types, prices, rent levels, and ownership options to meet the needs of the resident population.” (AR 1556.) The APC found that the Project would be in conflict with Objectives 1 and 13 of Section 106 of the Redevelopment Plan. (AR 1556; see also section V.B, infra.) The APC found that the Project was in conflict with these Objectives because “[t]he Project will displace the existing residential and commercial tenants with a new, six-story commercial and residential structure. The Project's 50 units, of which 5 will be set aside for Extremely Low Income Households and 45 will be market rate, will increase gentrification pressures in the local rental housing market, and the rise in rent costs will create displacement of existing residents.” (AR 1556.)

The APC found that the Project would not conform to Objective 1, which seeks to improve the quality of life of residents and workers in the Project area, because “[t]he Project is located in an area with a high Displacement Pressure Index score. The Project proposes 45 units or 90 percent of the 50 units at market rate affordability levels, while the median household income of Boyle Heights is significantly lower than the Average Median Income of the City. The combination of these two factors will result in displacement of the residents and gentrification to the area. The Centers for Disease Control and Prevention indicates that displacement has many health implications that contribute to disparities among special populations including children, the elderly, and members of racial/ethnic minority groups. Therefore, the Project would not improve the quality of life for those who live and work in the Project Area.” (AR 1558.)

The APC found that the Project would not conform to Objective 13, which seeks to promote a diversity of housing in terms of types, prices, rent levels, and ownership option, because “[t]he Project proposes 50 new units, but 45 or 90-percent of these units will be market rate. The median household income for Boyle Heights is $36,451, which is significantly lower than the Average Median Income for Los Angeles of $98,200. This large discrepancy would create a rent burden that would not meet the needs of the resident population of Boyle Heights. The Project also only provides either market rate units or extremely low income units and none for the other affordability levels in between.” (AR 1558.)

The APC also found that the Project does not comply with Section 503.6 of the Redevelopment Plan, which “requires that Residential uses within the Commercial Area are appropriately designed and properly located, promote community revitalization, and include amenities which are appropriate to the size and type of housing units proposed,” because the construction of a new mixed-use building will displace community members and the Project does not provide a variety of unit types and sizes. (AR 1556; see also Resp. RJN Ex. B at 39.) The APC further found that “[t]he average rent right now for a studio in Los Angeles goes from $2,118 and up, and two-bedroom units could be anywhere between $3,700 in rental costs. This development does not promote a wide range and does not meet the needs of the resident population, given the rise of eviction filings in Council District 14. The reason for those evictions were non-payment, which means people cannot afford the rent.” (AR 1557.) The APC determined that the Project does not promote community revitalization, as required by Section 503.6, because the Project, by providing 90 percent of the units at affordability levels far greater than the median household income in the area, will add to the displacement in the area and would not promote community revitalization. (AR 1557.)

The APC found that the Project would have a specific, adverse impact upon public health unless the Project is disapproved and that there is no feasible method to satisfactorily mitigate or avoid the adverse impact, other than the disapproval of the housing development project. (AR 1558-59.) The APC found that “the Project will create a specific, adverse health impact on public health and safety by aggravating the displacement and gentrification in Boyle Heights through the introduction of 45 new market rate units in the community.” (AR 1559.) The APC also determined that “[g]iven that Council District 14, where Boyle Heights is located, has seen the highest eviction filing rates Citywide, and given the public comment shared during the public hearing regarding community members’ inability to pay rent, and the leading cause of eviction filings being the lack of rent payment, introducing 45 new market rate units will exacerbate the gentrification and displacement dynamics in Boyle Heights. People who cannot keep up with rent and are evicted, the safety of those individuals is at risk, and the resulting likelihood of adverse health impacts is higher for those individuals. Therefore, the Project will worsen the impacts of rent burden and this would create an adverse impact upon public health and safety by causing an increase in likelihood of serious adverse health impacts for those rent burdened and displaced.” (AR 1559.)

The APC found that “[t]hirty percent of all demolitions in Council District 14 occur in Boyle Heights. Thirty percent of those units are Rent Stabilization Ordinance (RSO) units…[and r]ents in Boyle Heights are 30 percent lower than citywide averages but are growing at a faster rate, increasing 97 percent since 2000 compared to the 61 percent Citywide. Developments like the Project are contributors to the rapid rise in rents in the area. The project will add 45 market rate units where the median household income is $50,000, thus being out of reach for locals.” (AR 1559.) Finally, the APC found that “Eviction in this current environment will lead to homelessness and displacement. This is a danger to safety and health and will worsen gentrification. Therefore, approval of the Project will create a specific, adverse impact upon public health and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact of gentrification and displacement. There is no feasible method to satisfactorily mitigate or avoid the adverse impact, other than the disapproval of this housing development project.” (AR 1559.)

On June 28, 2024, the State Department of Housing and Community Development’s (“HCD”) HAA Unit contacted the City to discuss the APC’s denial of the Project. (AR 2031-32, 2038-42.) On October 18, 2024, HCD issued a Letter of Support and Technical Assistance determining that the APC’s “findings of denial under the HAA do not meet the legal threshold necessary to show that the Project would have a ‘specific, adverse impact on public health or safety unless the project is disapproved.’” (Pet. RJN Ex. A at 6.) HCD observed that “potential neighborhood-wide gentrification impacts associated with the Project [do not] satisfy the legal threshold necessary to deny the Project pursuant to the HAA.” (Pet. RJN Ex. A at 3.) After follow up, the City stated that “[t]here is no process in our Code for the City to bring back this decision before the Commission” and that, “[i]n the past, when a decision was revisited, it was under the authority and direction of a court order.” (Pet. RJN Ex. B.)

On June 10, 2024, petitioner filed a Verified Petition for Writ of Mandate and Complaint. On October 17, 2024, respondents filed an Answer.

On November 13, 2024, petitioner filed an opening brief. On December 17, 2024, respondents filed an opposition. On January 15, 2025, petitioner filed a reply. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether 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. (CCP § 1094.5(b).)

In administrative mandate proceedings, the trial court reviews land use decisions for substantial evidence. (See Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) 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, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts 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.) However, “‘[o]n questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Generally, the petitioner seeking administrative mandamus has the burden of proof to demonstrate where the proceedings were unfair, exceeded jurisdiction, or demonstrated prejudicial abuse of discretion. (See Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.) However, in an action such as this to enforce the Housing Accountability Act, the burden of proof is reversed. Here, in this challenge to the validity of the City’s decision to disapprove the project, the City bears the burden of proof that its decision has conformed to all of the conditions specified in Section 65589.5. (Gov. Code § 65589.6; see California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 837 [“As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6)”].)

Petitioner’s request to take judicial notice of Exhibits A and C-I are GRANTED, pursuant to Evidence Code § 452(c), (g), and (h). Petitioner’s request to take judicial notice of Exhibit B is GRANTED, pursuant to Evidence Code § 452(g) and (h). Respondents’ request to take judicial notice of Exhibits A and B are GRANTED, pursuant to Evidence Code § 452(b).

“The HAA was enacted in 1982 in an effort to address the state’s shortfall in building housing approximating regional needs, and the Legislature has amended the law repeatedly in an increasing effort to compel cities and counties to approve more housing.” (Save Lafayette v. City of Lafayette (2022) 85 Cal.App.5th 842, 850.) “Still dissatisfied with the dearth of housing in this state, the Legislature in 2017 passed further amendments to the HAA, supported by detailed findings. The Legislature added a provision requiring that an applicant receive timely written notice and an explanation if an agency considers a proposed housing development inconsistent with applicable standards. (§ 65589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.) It heightened fines for bad faith disapproval of a project. (§ 65589.5, subd. (l); Stats. 2017, ch. 378, § 1.5.) It also increased the burden of proof required for a finding of adverse effect on public health or safety. (§ 655589.5, subd. (j)(1); Stats. 2017, ch. 378, § 1.5.).” (California Renters, 68 Cal.App.5th at 836.)

As relevant to this writ petition, “the HAA provides that when a proposed housing development complies with objective general-plan, zoning, and subdivision standards and criteria in effect at the time the application is deemed complete, the local agency may disapprove the project or require lower density only if it finds the development would have specific adverse effects on public health or safety that cannot feasibly be mitigated.” (Save Lafayette, 85 Cal.App.5th at 850, emphasis in original; see Gov. Code § 65589.5(j)(1).) [1] Put another way, the HAA requires approval (1) if a project complies with all applicable objective standards and (2) if the project will not have specific adverse effects on public health and safety of the type that cannot be mitigated feasibly.

Section 65589.5(f)(4)[2] provides: “For purposes of this section, a housing development project or emergency shelter shall be deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that would allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity.”

In an action under the HAA, where the City has denied approval of the housing project, “instead of asking, as is common in administrative mandamus actions, ‘whether the City's findings are supported by substantial evidence’ [citation], we inquire whether there is ‘substantial evidence that would allow a reasonable person to conclude that the housing development project’ complies with pertinent standards. (§ 655589.5, subd. (f)(4).) As the public entity that disapproved the project, the City bears the burden of proof that its decision conformed to the HAA. (§ 65589.6.)” (California Renters, 68 Cal.App.5th at 837.)

Finally, the HAA states that “[i]t is the policy of the state that this section 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(a)(2)(L).)

The Court first considers whether the Project “complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete.” (§ 65589.5(j)(1).) The City contends that the APC permissibly denied approval of the project because it concluded that the Project did not comply with Objectives 1 and 13 of the Redevelopment Plan due to purported displacement and gentrification.

To begin with, due to the City’s untimeliness, as a matter of law, the Project is deemed to have been compliant. Under the HAA, a local agency that determines a proposed housing development not to be in compliance with applicable standards must provide the applicant “with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity…[w]ithin 30 days of the date that the application for the housing development project is determined to be complete, if the housing development project contains 150 or fewer housing units.” (§ 65589.5(j)(2)(A)(i).)

Here, the Project has 50 units (AR 396) and is thus subject to the timing requirements set forth in § 65589.5(j)(2)(A)(i). Because petitioner’s application for a Redevelopment Plan Project compliance review was complete on or before April 25, 2022 (AR 808, 1370), the City had until May 24, 2022 (i.e., 30 days from April 25) to identify in writing the standards with which petitioner purportedly did not comply and the reasons for the claimed inconsistencies. Petitioner contends no such timely writing was sent (Opening Br. at 7:2-4), and the City identifies none. Accordingly, under the HAA, the Project is deemed “consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.” (§ 65589.5(j)(2)(B).)

Even if the City’s findings concerning the Project’s purported non-compliance with the Redevelopment Plan were timely, the City failed to identify any objective standard or criteria with which the Project was not in compliance, because Objective 1 and Objective 13 are not objective standards. As defined in the HAA, “objective” means “involving no personal or subjective judgment by a public official and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official.” (§ 65589.5(h)(9).) “[A] standard that cannot be applied without personal interpretation or subjective judgment is not ‘objective’ under the HAA.” (California Renters, 68 Cal.App.5th at 840.) Whether a standard is objective is a question of law. (Id. at 839.)

Objective 1 of the Redevelopment Plan states that a goal of the Redevelopment Plan is to “[i]mprove the quality of life for those who live and work in and visit the Project Area through enhanced business, employment, housing, shopping, entertainment, recreational, and educational opportunities.” (Resp. RJN Ex. B at 21.) Whether a proposed housing development “improve[s] the quality of life” involves a subjective judgment without any reference to any uniform benchmark to measure quality of life. As such, Objective 1 is not an objective standard or criteria within the meaning of the HAA.

Objective 13 states the goal of “[p]romot[ing] the development of housing in a wide range of types, prices, rent levels and ownership options to meet the needs of the resident population.” (Resp. RJN Ex. B at 22.) Whether the Project promotes “a wide range of types, prices, rent levels and ownership options” is entirely subjective, as there is no uniform benchmark or criterion for determining what a “wide range” for the listed items might be. Further, whether such range of items would “meet the needs of the resident population” entirely involves personal and subjective judgment to evaluate—both in terms of identifying the needs and deciding whether any such needs are met. Objective 13 it thus not an objective or standard or criteria within the meaning of the HAA either.[3]

Lastly, even if the Project’s compliance with Objective 1 and 13 were required, there is substantial evidence that would permit a reasonable person to conclude the Project is compliant. (California Renters, 68 Cal.App.5th at 837.) The Project will add commercial space and 47 additional rental units—all of which are subject to rent control and some of which are reserved for extremely low-income households. (AR 205, 396, 2493.) Tenants displaced by the Project will have the right to return and occupy the new units or receive relocation assistance. (AR 204-06.) Given these provisions, one might reasonably conclude the Project improves the quality of life for those in the area and provides a suitable range of options to meet the needs of the resident population in accordance with Objectives 1 and 13.

Accordingly, the Project complied with all applicable, objective general plan, zoning, and subdivision standards and criteria, as contemplated by section 65589.5(j)(1). The City thus could not disapprove the Project, unless the Project would have specific adverse effects on public health or safety that could not be feasibly mitigated.

When a proposed housing development project complies with applicable, objective standards, the local agency seeking to disapprove of the project must base its decision upon written findings supported by a preponderance of the evidence that: (1) the project would have a “specific, adverse impact upon the public health or safety” absent disapproval; and (2) there is “no feasible method to satisfactorily mitigate or avoid the adverse impact” other than disapproval of the project. (§ 65589.5(j)(1)(A-B).) A “specific, adverse impact” means a “significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” (§ 65589.5(j)(1)(A).) The City having failed to demonstrate that the Project did not comply with applicable, objective standards, the Court considers whether the City identifies a specific, adverse impact on public health or safety that would result from the Project unless the Project were disapproved.

The City references the APC’s finding that the Project would aggravate displacement and gentrification by adding 45 new market rate units in Boyle Heights. (AR 1559.) In its findings supporting the granting of the Appeal and the denial of the Project, the APC asserted that “[d]evelopments like the Project are contributors to the rapid rise in rents in the area.” (AR 1559.) The APC also argued that the council district where Boyle Heights is located has the highest eviction rates in the City and nonpayment of rent is the leading cause of evictions. (AR 1559.) The APC found: “Eviction in this current environment will lead to homelessness and displacement.” (AR 1559.) In summary, the Project will purportedly increase rents in the area, thereby leading to more evictions and displacement as residents are unable to afford the increased rents.

While the APC’s concerns may be important in the abstract, the City fails to demonstrate that the displacement and gentrification purportedly caused by the Project are quantifiable, direct, and unavoidable based on any objective, written public health or safety standard. First, the City cites no evidence (let alone a preponderance) demonstrating how the Project would cause the purported adverse health impacts of evictions and displacement. Second, while tenants who are evicted and displaced may have more difficulty securing their health and safety, evictions and displacement are not themselves inherently a health and safety issue. In other words, the City fails to show that the Project would directly lead to an adverse health or safety impact. Third, even assuming the Project would have an adverse health or safety impact, the City does not cite any method by which such impact of the Project can be quantified, nor any public health or safety standards against which to compare the impact of the Project.

Finally, the APC’s concerns about gentrification, eviction, and displacement are not unique to the Project; rather, they would apply to any new development offering market rate units in Los Angeles. The APC asserts that redevelopment of nearby Downtown, Highland Park, and Echo Park has led to gentrification, just as it purportedly would to Boyle Heights. (AR 1559.) In enacting the HAA, the Legislature explained “the conditions that would have a specific, adverse impact upon the public health and safety, as described in…paragraph (1) of subdivision (j), arise infrequently.” (§ 65589.5(a)(3).) It cannot be said that gentrification, eviction, and displacement purportedly resulting from new housing developments offering market rate units are an infrequent condition if, as the APC contended, they always result from any such development. 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(a)(2)(L).) The Court cannot interpret section 65589.5(j)(1)(A) in such a manner that would result in restricting housing from being built throughout the entire City.

Because there is no meaningful evidence the Project would have a specific, adverse impact upon the public health or safety, the City’s disapproval of the Project cannot stand.

In an action to enforce the HAA, if the Court finds that the “the local agency, in violation of subdivision (j), disapproved a housing development project complying with applicable, objective general plan and zoning standards and criteria…without making the findings required by [the HAA],” the Court may “issue an order or judgment directing the local agency to approve the housing development project…if the court finds that the local agency acted in bad faith when it disapproved…the housing development…in violation of” the HAA. (§ 65589.5(k)(1)(A)(i)(II), (ii).) When bad faith is found, the Court “shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner, except under extraordinary circumstances in which the court finds that awarding fees would not further the purposes of this section.” (§ 65589.5(k)(1)(A)(ii).) “[B]ad faith includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.” (Former § 65589.5(l), effective January 1, 2024 to December 31, 2024.)[4]

The Court finds that the City acted in bad faith when it denied approval of the Project. During the hearings on the Project, the City Planner and the City Attorney repeatedly informed and reminded the APC of their duty to comply with the HAA, including the requirement of making written findings that the Project would have a specific, adverse health or safety impact. (AR 2421-22, 2514-16, 2544, 2546, 2691-93, 2714-15, 2734-37, 2740-41, 2743-44, 2775.) Despite being aware of the HAA’s requirements, the Commissioners of the APC who granted the appeal and denied the Project looked for reasons to deny the Project which were not related to health and safety. For example, Commissioner Gutierrez asked Planning how it determined that the Project would not adversely change the historic character of the neighborhood, even though the City Planner had already shared the methodology with the APC. (AR 2537.) Commissioner Marquez asked the City Planner if there was any state policy concerning anti-displacement that could apply locally and supersede the HAA, but the City Planner said no. (AR 2667-69.)

Significantly, the Commissioners who denied the Project acknowledged it was not possible to come up with a health and safety impact from the Project that would warrant denial under the HAA. (AR 2720 [Commissioner Avila-Hernandez: “I don’t think I could develop a written, factual public health and safety impact response”], 2768 [Commissioner Gutierrez: “[F]rom my understanding, the findings that I shared earlier were not sufficient enough for it be like taken into account for the motion; is that correct in my understanding? … Commissioner Avila-Hernandez: “That’s also my understanding that the findings that we’ve tried to link to it are not sufficient. Based on the standard from the statewide law”].

Even though the Commissioners who formed the majority in granting the Appeal and denying the Project were aware of the HAA’s requirements, they voted against the Project anyway. While their concerns about potential displacement and gentrification may have been well-intentioned, the State has made abundantly clear that the production of new housing must be prioritized.[5] Accordingly, the Court finds that respondents acted in bad faith when they disapproved the Project, as the disapproval was entirely without merit. Because the APC acted in bad faith, the Court will issue a judgment directing respondents to approve the Project.

The petition is GRANTED. Pursuant to Local Rule 3.231(n), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate. The Court notes the fourth cause of action for declaratory relief and inquires whether the ruling herein resolves that claim.

[1] Gov. Code § 65589.5(j)(1) states:

When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time that the application was deemed complete, but the local agency proposes to disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by a preponderance of the evidence on the record that both of the following conditions exist:

(A) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific, adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.

(B) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.

[2] Statutory references are to the Government Code, unless otherwise stated.

[3] The APC also found that the Project does not comply with section 503.6 of the Redevelopment Plan. In opposing the instant writ petition, the City does not attempt to assert that justification in defense of the APC’s disapproval of the Project. It is not hard to see why. Among other things, section 503.6 requires that residential facilities within commercial areas “[p]romote community revitalization” and “[i]nclude amenities which are appropriate to the size and type of housing units proposed.” (Resp. RJN Ex. B at 39.) Whether revitalization is promoted and whether amenities are appropriate are entirely subject determinations. Section 503.6 is clearly not an objective standard or criterion within the meaning of the HAA.

[4] A new version of section 69985.5 became effective on January 1, 2025. Because the Project was disapproved in 2024, the Court applies the version of section 69985.5 that was effective at the time of denial.

[5] It would also appear the State would agree with the Court’s finding that the City’s position was entirely without merit. As stated by the State’s HCD in its Letter of Support and Technical Assistance, the APC’s findings “do not meet the legal threshold necessary” to disapprove the Project due to any specific adverse impact on public health or safety. (Pet. RJN Ex. A at 3, 6.)