Yes in My Backyard, Sonja Trauss, and Janet Jha v. City of Los Angeles and City Council, 21STCP03883

 

Tentative decision on (1) motion to reconsider: denied; (2) motion for new trial: denied

 

            Respondents City of Los Angeles (“City”) and the City Council (collectively, “City”) move for reconsideration of the court’s order dated July 29, 2022 granting the Petition of Petitioners Yes in My Backyard (“YIMBY”), Sonja Trauss (“Trauss”), and Janet Jha (“Jha”).  Alternatively, the City moves for a new trial.

            The court has read and considered the moving papers, opposition,[1] and reply, and renders the following decision.

 

            A. Statement of the Case

            1. Petition

            Petitioners commenced this proceeding against the City on November 24, 2021.  The Petition alleges claims for traditional and/or administrative mandamus under the Permit Streamlining Act (“PSA”), traditional and/or administrative mandamus under the Housing Accountability Act (“HAA”), and declaratory relief for the application process The Petition alleges in pertinent part as follows.

            On May 19, 2020, Jha submitted a preliminary application for the Project, which is a multi-family development with affordable units and one commercial unit at 5353 Del Moreno Drive (“Property”).  The Property is in a “Limited Commercial” area within the Canoga Park-Winnetka-Woodland Hills-West Hills Community Plan (“Community Plan”) area.  The preliminary application included all the information listed in Government Code (“Govt. Code”) section 65941.1 as necessary and Jha paid the required $1,060.26 fee on May 29, 2020.

            On June 8, 2020, the City rejected the preliminary application and informed Jha that it was non-compliant with the Property’s RA-1 zoning, which prohibits multi-family housing and more than one dwelling per lot.  The City also stated that the Property is not eligible for a density bonus because the RA-1 zoning permits only one unit on the Project site, and it would require a rezoning of the Project site to permit a density bonus.  The City directed Jha to verify the appropriate entitlement path and secure a signed Affordable Housing Referral Form (“AHRF”), something not required by Govt. Code section 65941.1 and SB 330.

            On August 17, 2020, Jha submitted a completed AHRF.  The City’s Housing Services Unit refused to process an invoice or return a signed AHRF – or a Geographic Project Planning Referral Form (“GRF”) – because it concluded that the Project is non-compliant with the Property’s zoning. 

            On August 18, 2020, Jha submitted a complete development application to the City’s Department of City Planning (“City Planning”).  On September 18, 2020 – a day after the PSA’s 30-day deadline for finding an application incomplete - Respondents issued Jha a completed “CP-7782.1 DCP Application Checklist and Deemed Complete” form (“Checklist”) reflecting City Planning’s belief that the application was incomplete.

            Jha submitted the documents listed on the Checklist on January 21, 2021.  On February 26, 2021, the City notified Jha that the application was still incomplete because (1) the Project is inconsistent with the Property’s zoning, and (2) the application lacked staff signatures on the AHRF and GRF forms.  The same day, Jha requested an appeal of the completeness determination.  The City claimed that the application was unacceptable and technically not an application because it had not signed the referral forms, and therefore not subject to appeal.

            In Jha’s attempts to proceed with the Project over the following months, the City refused to take any action based on the absence of signed referral forms despite the fact that it, not Jha, was supposed to sign them.  The City also demanded that Jha reduce the density of the Project to comply with the Property’s zoning or seek rezoning, despite the fact that the Project complies with the Community Plan’s designation of the area as Limited Commercial.

            Only after Jha retained an attorney did the City provide an appeal before the City Council’s Planning and Land Use Management Committee (“PLUM”) in June 2021.  YIMBY and its director Trauss provided written comments, attended the August 31, 2021 PLUM hearing, and testified.  City Planning recommended denial based on the absence of signed referral forms and the fact that the application was incomplete.  PLUM agreed that the PSA’s 30-day compliance determination requirement had not been triggered and denied the appeal.

            On September 1, 2021, the City Council heard and denied Jha’s appeal, finding the application only would be complete after Jha reduces the density of the Project or sought rezoning. 

            Petitioners contend that the City Council’s decision is part of the City’s larger pattern of circumventing the PSA’s deadlines by finding that permit applications have not been accepted.  The City also previously has concluded that RA-1 zoning is consistent with the Property’s Limited Commercial designation, despite the fact that RA-1 prohibits multi-family housing and the Limited Commercial designation permitting it.

            Petitioners seek a writ of mandate directing the City to (1) review and process development applications pursuant to the PSA, SB 330, and the HAA, and not refuse to accept preliminary applications based on their incomplete status, (2) deem Jha’s preliminary application complete under the PSA and SB 330, and (3) approve Jha’s application pursuant to the HAA.  Petitioners also seek attorney’s fees and costs.

 

            2. Course of Proceedings

            No proof of service for the Petition is on file.  On December 30, 2021, the City filed an Answer.

            After the trial on July 26, 2022, the court took the hearing under submission.  On July 29, 2022, the court issued a ruling granting the Petition and stating that a writ will issue deeming the SB 330 application to have been submitted and the Project application complete, and directing the City to comply with the HAA in 60 days.  The court issued a certificate of mailing for the ruling on the same day.

            On September 26, 2022, Petitioners filed a proposed judgment.

 

            B. Applicable Law

            1. Motion for Reconsideration

            Code of Civil Procedure section 1008(a) (“section 1008(a)”) provides for reconsideration of court orders.  Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders.  Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within 10 days of service of written notice of the original order. 

            A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order.  Morite of Calif. v. Superior Court, (1993) 19 Cal.App.4th 485, 490.  To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier.  Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61.  The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence.  Garcia v. Hejmadi  (“Garcia”) (1997) 58 Cal.App.4th 674, 690.  A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling.  Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.  A mistake based on ignorance of law is not a proper basis for reconsideration.  Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670. 

            Relief under CCP section 1008(a) is strictly limited.  A motion to reconsider must be brought within ten days of service of written notice of the original order.  Kalivas, supra, 49 Cal.App.4th at 1160. 

 

            2. New Trial

            A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.  CCP §656.  CCP section 657 sets forth the grounds upon which a party can seek a new trial.  They are as follows: (1) irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) misconduct of the jury; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law; and (7) error in law, occurring at the trial and excepted to by the party making the application. 

            Whenever the court grants a new trial, it shall specify the ground or grounds upon which it is granted, and its reasons for granting the new trial upon each ground must be stated.  CCP §657.  Furthermore, a new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.  Ibid. 

            A party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either: (1) before the entry of judgment; or (2) within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to CCP section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.  CCP §659.  Upon the filing of the first notice of intention to move for a new trial by a party, each other party has 15 days after the service of such notice to file and serve its own notice of intention to move for a new trial.  Ibid. 

            Within ten days of filing the notice of intention to move for a new trial, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion.  CCP §659a.  Other parties shall have ten days after such service within which to file and serve upon the moving party any counter-affidavits.  Ibid. 

            In ruling on a motion for new trial on a cause tried by the court without a jury, the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues; or, in lieu of granting a new trial, may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered.  CCP §662. 

 

            C.  Governing Law[2]

            1. The Permit Streamlining Act

The Permit Streamlining Act (PSA) (§§ 65920-65964) states that there is a statewide need to ensure a clear understanding of the specific requirements which must be met for the approval of development projects and to expedite decisions on such projects.  Govt. Code[3] §65921.  The PSA requires that each agency maintain lists that “specify in detail the information that will be required from any applicant.”  §65940.

Once a development project application has been submitted, the agency must make a written determination whether the application is complete within 30 calendar days, or else “the application together with the submitted materials shall be deemed complete.”  §65943(a).   Agencies have “30 days, and 30 days only” to determine an application is incomplete.  Orsi v. City Council of Salinas, (“Orsi”)(1990) 219 Cal. App. 3d 1576, 1584.

When the agency makes an incompleteness determination, it must provide “an exhaustive list of items that were not complete” which is limited to those items required on the agency’s submittal requirement checklist.  §65943(a).  Upon any resubmittal, a new 30-day review period begins during which the agency shall determine completeness, but the 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.”  §65943(a).

If the application is determined incomplete, the agency must provide a right to appeal that determination.  §65943(c).  There shall be a final written determination on the appeal no later than 60 calendar days after receipt of the written appeal.  Id.  If a final written determination is not made within that 60-day period, “the application with the submitted materials shall be deemed complete.”  Id.

Deemed complete does not necessarily mean deemed approved.  See §65950 (agency shall approve or disapprove project within specified time limits).  The PSA does not create an exception to the well-established law requiring hierarchical consistency of land use permits, zoning ordinances, and general plans.  Land Waste Management v. Contra Costa County Board of Supervisors, (“Land Waste”) (1990) 222 Cal.App.3d 950, 960.  Hence, the PSA does not require that a permit application be deemed approved if not acted on within the statutory period when the permit application would require a legislative change in the applicable zoning ordinance, general plan, or other controlling land use legislation.  Id. at 961. 

The City’s actions under the PSA are reviewed as traditional mandate.  §65943(c). 

 

2. SB 330

In SB 330, part of the Housing Crisis Act of 2019, the Legislature added a new preliminary application process for housing development projects.  §65941.1. The purpose of the preliminary application -- also known as a SB 330 application -- is to freeze or lock into place existing development standards.  A local government is prohibited from applying development standards that were not in effect at the time an SB 330 application was submitted.  §65589.5(o).

An applicant “shall be deemed to have submitted a preliminary application upon providing all of the following information”, a list consisting of 17 specific pieces of information that must be submitted.  §65941.1(a).  Each local agency shall compile a checklist and application form that applicants may use for the preliminary application.  §65941.1(b)(1).  The “checklist or form shall not require or request any information beyond that expressly identified in subdivision (a).”  §65941.1(b).

In 2020, the Legislature added that a project’s increase of 20% or more, in unit count or square footage, does not void preliminary application rights if the increase is from the Density Bonus Law (§65915), or from “any other locally authorized program that offers additional density or other development bonuses when affordable housing is provided.”  §§ 65941.1(c), 65589.5(o)(2)(E).

Within 180 days after submitted the requisite preliminary application, the applicant shall submit an application for a development project that includes all the information required to process the development application consistent with sections 65490, 65491, and 65491.5.  §654491.1(d)(1).  If the public agency determines that the application is not complete, the applicant shall submit the specific information required within 90 days.  If the applicant does not do so, the preliminary application will expire and have no force and effect.  §65491.1(d)(2). 

This section shall not require an affirmative determination by the local agency regarding the completeness of a preliminary application or a development application for purposes of complying with section 65491.1.  §65491.1(d)(3).

 

3. The City’s Application Procedure

The City provides forms and instructions for an applicant seeking to freeze local regulations to submit a preliminary application.  Bilow Decl., Exs. B, C.[4]  The City does not consider a preliminary application or a project application to be filed until it has been completed in accordance with the City’s rules and regulations, has been submitted with the required filing fee, and a receipt for the fees has been issued.  LAMC §19.00.A (Resp. RJN Ex. 13).  City Planning performs a brief review of the case contents for completeness of the application, site and building plans, authority to sign the application, and project description.  AR 565.  A case number is assigned, and a case jacket is prepared.  Id.   The case jacket is then transferred to the appropriate City Planning division processing the case.  Id.

The City’s acceptance for filing starts the 30-day PSA clock in which City Planning reviews the case record to ensure that it has all the necessary documents and information to process the application, including the accuracy and completeness of the project description and all plans, entitlement requests with related code provisions, description of the project site and surrounding areas, prepared findings, and the submittal of all necessary supporting reports.  AR 566.  By the end of the 30-day period, City Planning must either determine that the case is complete or identify deficiencies and put the case on hold.  AR 566. 

If the City determines that an application remains incomplete, the decision can be appealed in writing to the City Council.  The appeal is formally filed in writing using a City Planning appeal form.  AR 260-312.  The PSA does not prohibit an appeal form.  See §65943(c).

 

4. The Housing Accountability Act

            The Housing Accountability Act (“HAA”) (§§ 65589.5-65589.6) (known as the “anti-NIMBY law”) prohibits local governments from disapproving code-compliant housing development projects unless certain public health or safety impact findings are made. 

The Legislature adopted the HAA in 1982 and amended it numerous times afterwards to “significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters.” §65589.5(a)(2)(K). 

            The Legislature significantly amended the HAA, effective January 1, 2018, to strengthen its provisions, expand its applicability, and increase local governments’ liability for violations.   The HAA found that California is in the midst of a housing crisis that is “partially caused by activities and policies of many local governments that limit the approval of housing, increase the cost of land for housing, and require that high fees and exactions be paid by producers of housing,” §65589.5(a)(1)(B).  There were allegations that some local agencies intentionally maintain zoning inconsistencies with their general plan to gain an additional measure of control over development by requiring case-by-case rezoning, even when the projects are consistent with the objective standards of the general plan.  Pet. RJN Ex. 2.  Local agencies sometimes exploit this loophole to evade compliance with the HAA on the ground that the project is inconsistent with zoning standards.   Id.  In amending the HAA in 2017 and 2018, the Legislature hoped these “game changers” would undercut those efforts by requiring approval of creatin projects that are inconsistent with zoning even if the jurisdiction has not brought its zoning ordinance into compliance with the general plan.  Pet. RJN Ex. 3; Reply RJN Ex. A. 

The HAA should be “interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.”  §65589.5(a)(2)(L).

A local agency may require a “housing development project” to comply with objective plan and zone standards.  §65589.5(f)(1), (j)(1), (j)(4).  A housing development project “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” it is.  §65589.5(f)(4).

            Section 65589.5(j)(1) provides:

 

“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 housing development project's application is determined to be 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.” (emphasis added).

 

            The HAA defines a “specific, adverse impact” as 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 Legislature intended that conditions that would have a specific, adverse impact upon the public health and safety should arise infrequently.  §65589.5(a)(3). 

The standards and findings required by the HAA apply to an agency’s action on a project after an application is accepted for processing, when there is a vote, an approval, or a disapproval after the adoption of environmental analysis, or a decision on the requested entitlement.  §65589.5(f)(4), (h)(6) and (j)(1), 65589.6, 65950; compare Cal. Renters Legal Advocacy & Educ. Fund, (2021) 68 Cal.App.5th 820, 832-33, 837 (city council’s denial of application).  The HAA defines “disapproval” as any instance in which a local agency “[v]otes on a proposed housing development project application and the application is disapproved.”  §65589.5(h)(6).  

            If a permitting agency considers a proposed housing development project to be inconsistent with “an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision,” it must provide the applicant with written documentation identifying and explaining the claimed inconsistency within either 30 or 60 days of the submittal of a complete application, depending upon the size of the project.  §65589.5(j)(2)(A).  Absent timely notice, the project is deemed to be compliant with all applicable standards as a matter of law. §65589.5(j)(2)(B).

            A housing development project is not inconsistent with the applicable zoning ordinance, and shall not require a rezoning, if it is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan.  §65589.5(j)(4).

            If the agency has provided timely notice of inconsistencies with the applicable plan or zoning, it may require the proposed housing development project to comply with the objective standards and criteria of the zoning that are consistent with the general plan.  §65589.5(j)(4).  In that case, the standards and criteria shall be applied to facilitate and accommodate the development at the density allowed on the site by the general plan and proposed by the proposed housing development project.  §65589.5(j)(4).

            Agency decisions under the HAA are reviewed as administrative mandamus.  §65589.5(m); Honchariw v. County of Stanislaus, supra, 200 Cal.App.4th at 1072.  The court must inquire whether there is “substantial evidence that would allow a reasonable person to conclude that the housing development project” complies with applicable standards.  Cal. Renters Legal Advocacy & Educ. Fund v. City of San Mateo, (2021) 68 Cal.App.5th 820, 837.  The agency “bears the burden of proof that its decision has conformed to the HAA” and that its findings are supported by a preponderance of the evidence.  Id.; 65589.6.

If the court finds that an agency acted in bad faith in disapproving a project complying with applicable, objective general plan and zoning standards and criteria, without making the required findings, the court may issue an “order or judgment directing the local agency to approve the housing development project.”  §65589.5(k)(1)(A)(ii).  “Bad faith” “includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.”  §65589.5(l).  The City bears the burden of proving that its decision conforms to the conditions specified in section 65589.5.  §65589.6.  

 

HAA Amendments

In 2017, AB 1515 changed the standard of review a court must apply to review whether a project is code compliant.  AB 151 eliminated the deference given to a local government’s interpretation of its own municipal code and requires a court to find a housing project compliant if substantial evidence would allow a reasonable person to conclude the project is compliant.  §65589.5(f)(4); Pet. RJN, Ex. 1 p. 3 (Assembly Floor AB 1515 Analysis, July 13, 2017).

In 2018, AB 3194 sought to close a loophole that local governments have exploited to avoid compliance with the HAA: maintaining low zoning densities to force projects into discretionary rezoning processes.  Pet. RJN Ex. 2, pp. 2-3 (Senate Committee on Governance and Finance AB 3194 Report dated June 27, 2018).  AB 3194 added section 65589.5(j)(4) which prohibits local governments from requiring rezoning in cases where the general plan’s density supports the project’s density:

 

“For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.”

AB 3194’s proposed amendments to section 65589.5(i)(4) – now section 65589.5(j)(4) – would have prohibited an agency from finding that a proposed project is inconsistent or non-compliant with the applicable zoning ordinance, and would have eliminated a rezoning requirement, where “the existing zoning ordinance does not allow the maximum residential use, density, and intensity allocable on the site by the housing element or by the land use element of the general plan if it was adopted or updated within the previous 10 years.”  Resp. RJN Ex. 29 (emphasis added).

            The Legislature discussed AB 3194, which would add what is now Government Code (“Govt. Code”) section 65589.5(j)(4), in 2018.  RJN Ex. 41.  Proposed amendments also would have prohibited an agency from finding that a proposed project is inconsistent or noncompliant with the applicable zoning ordinance, and would have eliminated a rezoning requirement, where “the existing zoning ordinance does not allow the maximum residential use, density, and intensity allocable on the site by the housing element or by the land use element of the general plan if it was adopted or updated within the previous 10 years.”  RJN Ex. 29.

            On April 18, 2018, the Rural County Representatives of California (“RCRC”), the Urban Counties of California (“UCC”), and the California State Association of Counties (“CSAC”) issued a joint letter informing the Assembly of their “oppose unless amended” stance on the bill.  RJN Ex. 41.  They asserted that as drafted at the time, the bill would prohibit a local government from requiring a rezoning of a project site if the existing zoning ordinance does not allow the maximum residential use, density, and intensity allocable on the site by the land use or housing element of the general plan.  RJN Ex. 41.  This would undermine the purpose of the general plan as providing cities with long-term flexibility.  RJN Ex. 41.  They proposed an amendment that would allow the developer to use the density specified in the housing element of the general plan or zoning ordinance for a specific site, whichever is higher.  RJN Ex. 41.

The American Planning Association (“APA”) asserted to the Assembly Committee on Housing and Community Development that the proposed amendment obviated the general plan’s purpose of being general and forced it to reflect the specific analysis of zoning ordinances.  Resp. RJN Ex. 32.  The May 29, 2018 revisions to AB 3194 therefore deleted this language.  Resp. RJN Exs. 21, 30.

            By June 13, 2018, the Senate Transportation and Housing Committee proposed amendments that would only require cities to approve projects inconsistent with a jurisdiction's zoning code if the zoning code was not in conformity with the general plan.  RJN Ex. 41.  The RCRC, UCC, CSAC, and League of California Cities (“LCC”) withdrew their opposition to the bill.  RJN Ex. 41.

The Senate Transportation and Housing Committee heard comments that the land use element of a general plan can and often will conflict with zoning ordinances, causing confusion as to the applicable maximum density: “Theoretically the land use element and zoning should always be consistent.  In reality, they are often inconsistent.  In such cases, this bill will create confusion and conflict.”  Resp. RJN Ex. 34, p. 706.  Section 65915(o)(2) therefore clarifies that if the general plan and zoning are inconsistent, the general plan prevails: “If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.”

            On June 21, 2018, AB 3194 revisions added language authorizing local agencies, following proper notice to the applicant, to require a project to comply with the objective standards and criteria of the inconsistent zoning that are consistent with the general plan, while applying the standards and criteria to facilitate and accommodate development at the density allowed by the general plan.  Resp. RJN Ex. 31.  This language was adopted as part of section 65589.5(j)(4).  Resp. RJN Ex. 21.

On June 18, 2008, AB 2280’s version of section 65915(o)(2) defined “maximum allowable residential density” as the density allowed under the zoning ordinance and land use element of the general plan, meaning the maximum if it was a range. 

The October 2019 version of SB 330 amending section 65589.5(o)(2)(e) stated that while housing development projects are generally subject to policies and ordinances in effect at the time completed, revision of the project subjects it to newer policies if the number of residential units or square footage of construction changes by at least 20%, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision.  Resp. RJN Ex. 24. 

In September 2020, SB 1030 clarified that the bonuses and incentives exempt from this 20% calculation include those from any locally authorized program that offers additional density or other development bonuses for providing affordable housing.  Resp. RJN Ex. 22.

 

5. The Density Bonus Law 

The Density Bonus Law (§§ 65915-65918) mandates the approval of density bonuses and reduced development standards and parking for housing developments that set aside stipulated percentages of low income and very low-income units.  §65915(b).  The amount of the density bonus varies according to the amount by which the percentage of low and very low-income units exceed the percentages.  §65915(f).

A “housing development” that replaces existing units and contains specified percentages of affordable or target population units (e.g., disabled veterans), may obtain one density bonus, one to four incentives or concessions, and unlimited waivers of development standards that physically preclude the project.  §65915(b).

The Density Bonus Law prohibits local governments from applying development standards that would preclude the construction of such projects.  §65915(e)(1).  An applicant may propose a waiver or reduction of development standards that have the effect of precluding the construction of a development meeting the Density Bonus Law’s criteria.  Id.  The statute does not require a local government to waive or reduce development standards if there would be an adverse impact on health, safety, or the physical environment, and for which there is no feasible method of mitigation to avoid the impact.  Id.

The Density Bonus Law mandates that density bonuses be granted based on the “maximum allowable density” for the project site, defined as: “the density allowed under the zoning ordinance and land use element of the general plan, or, if a range of density is permitted, the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project.  If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.” §65915(o)(5).

 

Density Bonus Law Amendments

            In 2008, the legislature discussed AB 2280, which amended Govt. Code section 65915(o)(2).  RJN Ex. 42.  The original version held that whenever the density allowed under the zoning ordinance “differs from” density allowed under the land use element of the general plan, the general plan density shall prevail.  RJN Ex. 42.  Amendments replaced “differs from” with “is inconsistent with.”  RJN Ex. 42.

The Senate Transportation and Housing Committee heard comments that the land use element of a general plan can and often will conflict with zoning ordinances, causing confusion as to the applicable maximum density: “Theoretically the land use element and zoning should always be consistent.  In reality, they are often inconsistent.  In such cases, this bill will create confusion and conflict.”  Resp. RJN Ex. 34, p. 706.  Section 65915(o)(2) therefore clarifies that if the general plan and zoning are inconsistent, the general plan prevails: “If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.”

The October 2019 version of SB 330 amending section 65589.5(o)(2)(e) stated that while housing development projects are generally subject to policies and ordinances in effect at the time completed, revision of the project subjects it to newer policies if the number of residential units or square footage of construction changes by at least 20%, exclusive of any increase resulting from the receipt of a density bonus, incentive, concession, waiver, or similar provision.  Resp. RJN Ex. 24. 

In September 2020, SB 1030 clarified that the bonuses and incentives exempt from this 20% calculation include those from any locally authorized program that offers additional density or other development bonuses for providing affordable housing.  Resp. RJN Ex. 22.

 

6. The City’s Density Bonus Process

The City implements the Density Bonus Law through LAMC section 12.22.A.25, which incorporates on-menu incentives.  See LAMC §12.22.A.25(f)(1)-(8).

A housing development project that has 10% of the total units for low-income households or 5% of the total units for very low-income households, either as rental or for sale units, shall be granted a minimum density bonus of 20%.  Resp. RJN Ex. 9 (LAMC §12.22.A.25(c)).  In addition to the density bonus and parking options identified in LAMC section 12.22A.25(c) and (d), a housing development project that qualifies for a density bonus shall be granted a number of incentives based on meeting required percentages of very low-, low-, and moderate-income households.  Resp. RJN Ex. 9 (LAMC §12.22.A.25(e)).  These incentives include using the area of any land required to be dedicated for street or alley purposes as lot area for purposes of calculating the maximum density permitted by the zone in which the project is located.  Resp. RJN Ex. 9 (LAMC §12.22.A.25(f)(7)).

Due to existing City bonus programs, projects are entitled up to a 35% bonus and are ineligible for the state’s 50% bonus.  If a local agency has an ordinance or housing program that incentivizes the development of affordable housing and it allows for density bonuses that exceed those required by the December 31, 2020 version of section 65915, the local agency is not required to amend its program to comply with amendments to the bonus density incentives of section 65915(d).  §65915(s).  As of section December 31, 2020, section 65915(f) provided a maximum 35% bonus.  AB 1763 (Resp. RJN Ex. 27).  The City had over a 35% bonus effective Feb. 26, 2018.  LAMC §12.24.U.26 (Resp. RJN Ex. 11).

Unless restricted to certain zones or locations, if approved by the Planning Commission as the initial decisionmaker, or the City Council as the appellate body, any zone may apply a density bonus for a housing development project in which the density increase is greater than the maximum permitted in LAMC section 12.22.A.25.  Resp. RJN Ex. 11 (LAMC §12.24.U.26).

A housing development located within a Transit Oriented Communities (“TOC”) Affordable Housing Incentive Area shall be eligible for TOC Incentives if it provides minimum required percentages of On-Site Restricted Affordable Units, meets any applicable replacement requirements of section 65915(c)(3), and is not seeking and receiving a density or development bonus under the provisions of section 65915 or any other state or local program that provides development bonuses.  Resp. RJN Ex. 9 (LAMC §12.22.A.31(b)(1)).  An eligible housing development shall be granted increased residential density at rates that shall meet or exceed a 35% increase.  Resp. RJN Ex. 9 (LAMC §12.22.A.31(b)(2)(i)).

 

            7. The City’s Zoning

            In order to regulate the use of property, the City is divided into various zones with a defined order of most to least restrictive.  Resp. RJN Ex. 1 (LAMC §12.04(a)).  RA Suburban Zones (No. 4), for example, are more restrictive than C1.5 Limited Commercial Zones (No. 24).  Resp. RJN Ex. 1 (LAMC §12.04(A)).  

            RA Suburban zones may have only specific types of buildings, including one-family dwellings.  Resp. RJN Ex. 2 (LAMC §12.07(A)(1)).  RA lots shall have a minimum width of 70 feet and a minimum area of 17,500 square feet, except for a two-family dwelling on lots having a side lot adjoining a lot in a commercial or industrial zone.  Resp. RJN Ex. 2 (LAMC §12.07(C)(4)).

            R1 One-Family zones may have only specific types of buildings, including one-family dwellings.  Resp. RJN Ex. 3 (LAMC §12.08(A)(1)).  R1 One-Family zone lots shall have a minimum width of 50 feet and a minimum area of 5,000 square feet, except for a two-family dwelling on lots having a side lot adjoining a lot in a commercial or industrial zone.  Resp. RJN Ex. 3 (LAMC §12.08(C)(4)).

            Any use permitted in an R1 One-Family zone is also permitted in an R2 Two-Family zone.  Resp. RJN Ex. 4 (LAMC §12.09(A)(1)).  Any use permitted in an R2 Two-Family zone is also permitted in an R3 Multiple Dwelling zone.  Resp. RJN Ex. 5 (LAMC §12.10(A)(1)).  Any use permitted in an R3 Multiple Family zone is also permitted in an R4 Multiple Dwelling zone.  Resp. RJN Ex. 6 (LAMC §12.11(A)(1)).  Any single-family dwelling, two-family dwelling, or apartment house use permitted in an R4 Multiple Dwelling zone is also permitted in a C1.5 Limited Commercial zone, provided that all R4 zone regulations are met.  Resp. RJN Ex. 8 (LAMC §12.13.5(A)(1)).

            Zoning regulations for “M1” Limited Industrial Zones permit (1) any use permitted in the MR1 Zone, provided that all regulations of the zone except as to front yard setbacks are complied with; and (2) any commercial use permitted in the C2 Zone except sanitariums and hospitals, provided that these uses are conducted in accordance with all building enclosure and fence enclosure limitations of the C2 Zone.  RJN Ex. 43 (LAMC §12.17.6(A)(1)-(2)).

            MR1 Restricted Industrial Zones, in turn, are designed to protect industrial land for industrial use, and prohibit unrelated commercial and other non-industrial uses.  RJN Ex. 44 (LAMC §12.17.5(A)(1)).  Permitted uses included (1) any use specified in Section 12.17.1-A.2, as first permitted in the CM Zone when complaint with CM Zone’s regulations; and (2) any use permitted in the C2 Commercial Zone, provided that any such use is devoted primarily to the manufacturing of products or assembling and treating of materials, development of software and other computer or media-related products or services, or only as an accessory use to the main use, and provides services for those persons employed on the premises.  RJN Ex. 44 (LAMC §12.17.5(B)(1)-(2)). 

            Acceptable uses for CM Commercial Manufacturing Zones, in turn, include any use permitted in the C2 Zone, except that residential uses shall be permitted but shall be limited to shelters for the homeless, joint living and work quarters, and those uses permitted in the R3 Multiple Residential Zone.  RJN Ex. 45 (LAMC §12.17.1(A)(1)). 

            Any change of use of a building, or a portion of a building, must conform to the current regulations of the zone and other applicable land use regulations.  Resp. RJN Ex. 10 (LAMC §12.23(B)(7)(a)).  However, in the R, C, or M zones, a non-conforming use may be changed to any use that is permitted in a more restrictive zone than the current zone.  Resp. RJN Ex. 10 (LAMC §12.23(B)(7)(b)). 

            An owner of property may apply for a proposed land use ordinance if authorized to do so.  Resp. RJN Ex. 12 (LAMC §12.32(B)).  The applicant shall complete the application for that proposed land use ordinance, pay the required fee, and file the application with City Planning on a form it provides.  Resp. RJN Ex. 12 (LAMC §12.32(B)). 

An application or appeal shall be considered filed whenever it has been completed in accordance with the applicable rules and regulations, has been submitted to the City department together with the required filing fees, and a receipt for the filing fees has been issued.  Resp. RJN Ex. 13 (LAMC §19.00(A)).  If at any time it is discovered during the processing of an application that the application has been improperly prepared, or requires pertinent information has not been submitted in accordance with established rules and regulations, upon notification to the applicant by the appropriate officer or employee, the time limits specified within the LAMC shall be suspended and not continue to run until the application has been rectified or the omitted information furnished in a proper manner.  Resp. RJN Ex. 13 (LAMC §19.00(A)). 

           

            8. The City’s General Plan

            Policy reasons behind the Land Use element of the general plan include to (1) limit the introduction of new commercial and other non-industrial uses in existing commercial manufacturing zones to uses which support the primary industrial function of the location in which they are located; and (2) consider the potential re-designation of marginal industrial lands for alternative uses by amending the community plans based on predefined criteria.  RJN Ex. 46 (General Plan 3.14.4, 3.14.6). 

            Policy reasons behind the Economic Development element of the general plan include to (1) retain the current manufacturing and industrial land use designations, consistent with other Framework Element policies, to provide adequate quantities of land for emerging industrial sectors; and (2) limit the redesignation of existing industrial land to other land uses except in cases where such redesignation serves to mitigate existing land use conflicts and fulfills the criteria.  RJN Ex. 47 (General Plan 7.2.8, 7.2.9). 

            Footnote 9 to the general plan for the city states that each plan category permits “all indicated corresponding zones as well as those zones referenced in the Los Angeles Municipal Code (LAMC) as permitted by such zones unless further restricted by adopted Specific Plans, specific conditions and/or limitations of project approval, Plan footnotes or other Plan map or text notations.”  RJN Ex. 17.  Further, it was the intent of the plan that “the entitlements granted shall be one of the zone designations within the corresponding zones shown on the Plan, unless accompanied by a concurrent Plan amendment.”  RJN Ex. 17. 

 

D. Analysis

            In an unwise shotgun approach that raises 24 separate issues, the City moves for reconsideration of the court’s decision or alternatively for a new trial.

 

            1. Motion for Reconsideration

            a. Timeliness

            A motion to reconsider must be filed within ten days of service of written notice of the original order. CCP §1008(a); Kalivas, supra, 49 Cal.App.4th at 1160.  However, mail service is complete at the time of deposit and extends the time for filing by five days if the place of mailing is within California.  CCP §1013(a).  Further, when the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.  CCP §12a(a).  If any public office other than a branch office is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday.  CCP §12b.

            The court’s clerk mailed the decision on July 29, 2022.  The mailing extended the ten-day deadline to 15 days, making the deadline August 13, 2022.  CCP §§ 1008(a), 1013(a).  As this was a Saturday, the deadline became August 15, 2022, the day on which the City filed and served the motion.  CCP §§ 12a(a), 12b; Mot. at 24.  The motion for reconsideration is timely.

 

            b. Request to Reconsider

            To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas, supra, 49 Cal.App.4th at 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia, supra, 58 Cal.App.4th at 690.

            The City’s proffered evidence consists of additional legislative history for statutes at issue and LAMC and General Plan provisions.  RJN Exs. 40-47.  The City asserts that this evidence is presented in response to arguments raised in Petitioners’ reply brief which the City could not have reasonably briefed.  As such, this is a new “circumstance” under CCP section 1008(a).  Reply at 6.  The fact that the court did not issue a tentative before the hearing or permit additional briefing adds to the problem because the City did not have adequate opportunity to respond.  Mot. at 10-12; RJN Ex. 39, pp. 3, 30, 78-79. 

            This argument is spurious.  The City’s legislative history, LAMC, and General Plan evidence is new in the sense that it has not previously been presented, but it obviously could have been presented in the exercise of due diligence.  The City’s argument that it could not respond to Petitioners’ reply arguments and evidence is belied by the fact that the reply was filed three weeks before the hearing and the City’s attorney participated in a two-hour trial where she could have argued any issue.  As the opposition asserts, the City fails to identify any specific new issues raised in Petitioners’ reply.  Petitioners contend there are none and that their reply only responded to the City’s opposition.  Opp. at 4-5.  The City’s additional contention that it only learned the basis for the court’s decision when it was issued deserves no attention at all.  Counsel are not entitled to a tentative decision before a court rules.

            The City fails to demonstrate new facts or circumstances that could not have been presented in the exercise of due diligence and the motion for reconsideration is denied.

 

            2. Motion for a New Trial

            The City moves for a new trial under CCP sections 657.  The City alleges (1) irregularity in the proceedings of the court that prevented it from having a fair trial; (3) accident or surprise, which ordinary prudence could not have guarded against; (6) insufficiency of the evidence to justify the decision; and (7) error in law occurring at the trial and excepted to by the party making the application.  CCP §657.

 

            a. Timeliness

            A notice of intention to move for new trial must be filed and served upon the parties of record not more than 15 days following the notice of entry of judgment.  CCP §659.  Within ten days of the filing of the notice of intent to move for new trial, the moving party must serve and file such affidavits (and authorities) on which the moving party intends to rely.  CCP §659a.  However, mail service is complete at the time of deposit and extends the time for filing by five days if the place of mailing is within California.  CCP §1013(a).