Judge: Ronald F. Frank, Case: 22TRCP00203, Date: 2023-08-21 Tentative Ruling

Case Number: 22TRCP00203    Hearing Date: August 21, 2023    Dept: 8

Supplemental Tentative Ruling¿ 

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HEARING DATE:                 August 21, 2023¿ 

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CASE NUMBER:                   22TRCP00203

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CASE NAME:                        New Commune DTLA, LLC; Leonid Pustilnikov v. City of Redondo Beach; City Council of the City of Redondo Beach

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MOVING PARTY: Plaintiff/Petitioner, New Commune DTLA, LLC and Leonid Pustilnikov

RESPONDING PARTY: Defendants/Respondents, City of Redondo Beach, and City Council of The City of Redondo Beach

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TRIAL DATE:                       Not Set.

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MOTION:¿                              Writ of Mandate

Supplemental Topics for Oral Argument:             The Court will place this matter at the end of its 8:30 calendar and expects lengthy oral argument, to DISCUSS several topics raised in the original Tentative Ruling for July 31 as modified below:

(1)    As to Measure DD issues, what does the City contend is the document, step, phase, or activity that triggers the right of the voters to veto the intent expressed in the Housing Element approved by the City and ultimately blessed by HCD after this lawsuit was filed?

a.      The City’s Planning Commission and City Council both indicate in the Administrative Record that the Housing Element is merely a “policy document” prefatory to implementing the intentions of the HE (AR 8075), but that future updates to land use planning to accommodate the City’s RHNA assessment WILL trigger a Measure DD voter approval (AR 8077)

b.     But isn’t the land use plan the implementation document that voters are entitled by Measure DD to approve or veto?  Opp at 13:14-16 concedes that the land use plan and map and zoning designations are what require voter approval, and at pg. 10:14-15  and 10:19-20 Opp asserts that Council approved the draft land use plan and map.  Or is it the future Land Use Element that amends the City’s 6^th Cycle General Plan that will require voter approval?

c.      Were Measure DD’s provisions given to HCD when the City applied for approval of the Draft Housing Element?   Appears Yes, since HCD’s approval letter seems to acknowledges that the Land Use Element requires voter approval ( AR 8679)

(2)            What is the effect of HCD’s September 1, 2022 substantial compliance determination?

a.                Does it effectively moot Petitioners’ contentions that the City failed to meet timeliness submission requirements before that date? 

b.               Put another way, what remedy should be imposed if the Court finds that the City failed to submit its Draft Housing Element adopted in the July 5, 2022 Resolution No. CC-2207-048 to HCD 60 days before adoption, notwithstanding HCD’s subsequent approval?

c.               Is there any authority for the Court to find that HCD retroactively approved the multiply revised HE that the City has worked for over a year to gain HCD approval?

(3)     Does Petitioner contend that development rights become vested upon approval of a housing element, or at some later point, such as (a) the granting of a building permit on a site identified for affordable housing in the housing element, (b) approval by the City Planning Department of a construction plans, (c) if Petitioner were entitled to the Builders Remedy in the Housing Element Law as a matter of right, or (d) some other step?  What is the City’s view?

(4)            Petitioner contends Martinez v City of Clovis (2023) 90 Cal.App.5^th 193, 243-44, bars a City from using a residential overlay zone where the “base” zone does not satisfy minimum density requirements.  In Clovis the base zone was low density residential but here the base zones are commercial or mixed use. 

(a)            Is that a sufficient ground for distinguishing the only appellate decision addressing an overlay zone used to accomplish compliance with the Housing Element Law, when the base zone has no minimum permissible residential density?

(b)            Does the applicability of Clovis depend on the Court’s resolution of the parties’ divergent construction of Government Code section 65583.2(g)(2)?

(c)            Does City contend that Section 65583.2(g)(2) is only triggered by a development project, or is it triggered by the adoption of a HE?

(d)             Assuming mixed use zoning was intended by the Legislature to include an overlay zone atop an existing non-residential use (like most of the designated sites for low-income housing in the City’s HE), what step, activity, approval, or document would implicate the 50% residential use mandate of section 65583.2(g)(2)?

(5) Does the City contend that it can comply with the Housing Element Law by approving an aspirational “policy statement” that never results in a single unit of affordable housing ever being issued a building permit?  Does Petitioner contend that the Draft Housing Element is illusory because under Measure DD the voters will eventually be given an opportunity to determine whether to approve the housing element and/or zoning changes?

(6) With respect to the specific designated sites listed in the HE and argued by the parties in their briefs, what do the parties contend to be the standard of review by this Court, i.e., is the fact that the City “considered” the intentions of parcel owners or forms and intention to attempt to negotiate with them in the future, or must the City make some specific determination or finding in its HE about the level of certainty expected for a non-vacant designated site to be actually developed for residential use?