Judge Stephen I. Goorvitch, Case Number: 24STCP00524, Date: 2024-10-30 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP00524, Date: 2024-10-30 Tentative Ruling

In December 2022, Mayor Karen Bass declared a local emergency in response to the City of Los Angeles’s ongoing housing and homelessness crisis. As authorized by the City Charter, the Mayor issued Executive Directive No. 1 (“ED1”), which created a streamlined ministerial approval process for 100 percent affordable housing projects throughout the City. Petitioner Mamba 24 LLC (“Mamba”) applied to build a 100 percent affordable housing project in a single-family residential zone. The City initially acknowledged that the project was “eligible” for the ED1 process. Then, the Mayor amended ED1 to exclude projects in single-family zones. The City informed Mamba that its project no longer qualified for ministerial review under ED1 and that the project would be subject to discretionary review. The City deemed Mamba’s application incomplete after Mamba did not submit application materials and pay the fees required for a discretionary project. Mamba appealed the decision, and the City Council voted to uphold the City’s incompleteness determination.

Petitioners Yes In My Back Yard, Sonja Trauss, and Mamba (collectively, “Petitioners”) now petition for a writ of mandate directing Respondents City of Los Angeles and the City Council (collectively, the “City” or “Respondents”) to, among other things, set aside the denial of Mamba’s appeal under the Permit Streamlining Act (“PSA”) and to process Mamba’s development application for an affordable housing project pursuant to the Housing Accountability Act (“HAA”). Because Mamba filed a preliminary application that included all information required by state law, the project was vested by operation of law in the ED1 ministerial review process. Accordingly, the City violated the PSA and HAA when it denied Mamba’s appeal and upheld the City’s incompleteness determination. The petition for writ of mandate is granted. The court has no tentative order on the issue whether the City acted in bad faith.

On December 12, 2022, Mayor Karen Bass issued a Declaration of Local Emergency (the “Declaration”), pursuant to City Charter section 231(i) and Los Angeles Administrative Code (“LAAC”) section 8.27, in response to the City’s ongoing housing and homelessness crisis. (Petitioner’s Request for Judicial Notice (“RJN”) Exh. A.) The Declaration states that “the continuing state of emergency shall be regularly evaluated, in coordination with City Council.” (Ibid.) The Declaration of Local Emergency remains operative, nearly two years later, and has been ratified by the City Council. (See RJN Exh. H.)

On December 16, 2022, Mayor Bass issued Executive Directive No. 1 (“ED1”) ordering the “Expedition of Permits and Clearances for Temporary Shelters and Affordable Housing Types.” (AR 713.) In ED1, the Mayor ordered that:

Applications for 100% affordable housing projects, or for Shelter as defined in Section 12.03 of the Los Angeles Municipal Code (LAMC) (hereinafter referred to as Shelter), shall be, and hereby are deemed exempt from discretionary review processes otherwise required by either the zoning provisions of Chapter 1 of the LAMC or other Project Review including Site Plan Review as described in LAMC Section 16.05 and LAMC Section 13B.2.4, as long as such plans do not require any zoning change, variance, or General Plan amendment. All City departments are directed to process all plans for such 100 percent affordable housing projects or Shelter using the streamlined ministerial review process currently used for projects eligible under Government Code section 65913.4, State Density Bonus law.

On February 9, 2023, the City issued implementation guidelines for ED1 (the “Guidelines”) that outlined the eligibility criteria and procedures for projects seeking ministerial approval under ED1. (RJN Exh. B.) In relevant part, the Guidelines state:

An ED 1 project may qualify for vesting of City ordinances policies and standards through either the submittal of plans sufficient for a complete plan check to LADBS, consistent with LAMC §12.26-A.3 or the submittal of a complete Housing Crisis Act (HCA) Vesting Preliminary Application prior to case filing.

(Id. at 11.) The Guidelines also state: “Most housing projects qualify to submit an optional HCA Vesting Preliminary Application, which ‘locks in’ local planning and zoning rules at the time the complete application is submitted.” (Id. at 14.)

On March 21, 2023, Mamba submitted a Housing Crisis Act (“HCA”) preliminary application for an affordable housing project at 10898, 10898 1/2, and 10900 West Olinda Street, in the City of Los Angeles (the “Olinda Project” or the “Project”). (AR 137-47.) In their opposition, Respondents have not disputed that the Olinda Project qualifies as a “100 percent affordable housing project” within the meaning of ED1.

In the application, Mamba proposed to replace two existing single-family dwellings, which are to be demolished, with a three-story affordable housing development with 78 new affordable rental units. (AR 138-139.) On March 23, 2023, a City planning staff person signed the preliminary application, verified a “submittal completion date” of March 21, 2023, and checked the box identifying the project as “ED1 eligible.” (AR 137.) The City assigned the application an “administrative review” case number (Case No. ADM-2023-4205). (Ibid.)

Mamba also submitted an Affordable Housing Referral Form (“AHRF”) to the City’s Affordable Housing Services Section (“AHSS”). (AR 171.) On May 9, 2023, AHSS staff signed the form and assigned it an ED1 case number (Case No. PAR-2023-2458-AHRF-ED1). (Ibid.)

On June 6, 2023, Mamba submitted a formal Department of City Planning application for the Project. (AR 184-190.) By June 21, 2023, Mamba had paid $2,926.98 for a building permit and a certificate of occupancy (AR 107) and $4,892.94 for administrative review and other application fees (AR 229).

On June 21, 2023, Mayor Bass issued an amended version of ED1 (“Amended ED1”). Amended ED1 was largely the same as ED1 except that it excluded any 100 percent affordable housing projects “located in a single family or more restrictive zone.” (AR 764.)

On July 6, 2023, the City sent Mamba a letter referring to Amended ED1 and stating that “the proposed project located at 10898, 10898 1/2, and 10900 West Olinda Street is in the R1-1-CUGU [single-family] zone and is not eligible for ED1 processing.” (AR 296.) On July 10, 2023, City Planning informed Mamba that its application was incomplete. City Planning identified the following items for correction: (1) there was no Environmental Assessment Form (“EAF”); (2) the AHRF was inconsistent with Project plans with regard to the number of Very Low Income Units; (3) there were no Landscape Plans as part of the Project Plan submission; and (4) the entitlement number needed conversion from an administrative review case number (starting with “ADM”) to a different case number for City Planning Commission (“CPC”) review (Case No. CPC-2023-4205-DB-PHP-VHCA). (AR 1125-1127.) City Planning also invoiced Mamba for more than $35,000 in additional fees in connection with the conversion of the application from “ADM” to “CPC” review. (AR 300-301.)

On August 4, 2023, City Planning sent Mamba a Second Status of Project Review explaining that the Project did not qualify for ED1 processing and was converted to a regular entitlement process under the new “CPC” case number. (AR 1128.) City Planning also referred to the prior incompleteness determination, including the need to provide the EAF materials required for discretionary review under the California Environmental Quality Act (“CEQA”). (AR 1129.)

In July and August 2023, Mamba’s representative asked City staff to explain why the Project would be subject to Amended ED1. (AR 806-809.) It appears that City staff did not respond to that request in July or August 2023. (Ibid.) On September 27, 2023, Mamba provided a response to the City’s July 10, 2023, incompleteness letter. (AR 815, 821, 852.) Mamba indicated that the EAF materials were not required because the Project is exempt from CEQA pursuant to ED1, and that Mamba would appeal “under SB330 vesting” the City’s determination to convert the Project from “ADM” to “CPC” processing. With respect to items two and four in the City’s incompleteness letter, Mamba provided revised plans, indicated that the AHRF was correct with respect to the number of Very Low Income Units, and provided landscape plans. (AR 852.)

On November 22, 2023, City Planning sent Mamba a letter of non-compliance pursuant to California Government Code section 65589.5(j)(2) explaining that the Project was inconsistent and not in compliance with the City’s Zoning Code with regard to density/use, residential floor area, setbacks / encroachment plane, vehicular parking, bicycle parking, and open space/landscape. (AR 1026–30.) The City identified missing information and requested a response within 30 days. (AR 1030, 1133–37.) Specifically, the City requested the EAF for environmental analysis, supplemental documents to accompany the EAF, and payment of outstanding fees. (AR 1030.)

On December 1, 2023, Mamba filed an administrative appeal of the City’s incompleteness determination. (AR 979-993.) Mamba argued that “as a matter of State law the HCA Preliminary Application filed for the Project grants vesting protections that require the City's continued ED 1 processing of the Case Filing, as the Project became vested prior to the issuance of the Revised ED 1.” (AR 981.) Mamba analyzed the HAA, as follows:

[T]he HAA specifically, intentionally and very broadly defines “ordinances, policies, and standards” to include “general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency.” Given this statutory provision, any attempt by the City to claim that ED 1 - a formal regulation promulgated pursuant to the Mayor’s authority under the City's Administrative Code - cannot be vested against because it is not an ordinance directly contradicts the plain statutory language and crystal clear intent of both the HCA and HAA.

City Planning also deemed a different affordable housing project, at 5511 North Ethel Avenue (“Ethel Project”), ineligible for ED1 and the applicant appealed. On September 14, 2023, the State, through its Department of Housing and Community Development (“HCD”), sent the City Council a Letter of Technical Assistance sharing HCD’s views with respect to the Ethel appeal. (RJN Exh. C.) HCD’s letter stated: “The central question between the City and the Applicant is as follows: Is an executive directive one of the rules, regulations, requirements, and policies that vest upon submission of a complete Preliminary Application? The answer is ‘yes.’” (RJN Exh. C.) HCD’s letter further explained that “ED1 is not excluded from the expansive HAA definition of ‘ordinances, policies, and standards’” and is therefore eligible for vesting. (Ibid.)

At the City Council meeting on September 26, 2023, some City Council members recognized the precedential nature of the Ethel appeal. As examples, Councilmember Rodriguez stated, “the process is gonna be delineated here today by this action for all future projects.” (RJN Exh. E at 34.) Councilmember Yaroslavsky stated:

So I'm going to be voting yes today in support of the appeal, and I want to say why. My vote is largely centered on the fact that if we deny this appeal today, we are very likely going to lose in court on this project and the other projects that are in a similar position, and it's gonna cost taxpayers millions of dollars we cannot afford to lose. As we discussed earlier, the state of California Housing and Community Development -- Housing Accountability Unit has made their position clear on this matter, that ED-1 does constitute a policy under which these projects are vested, and our own planning department initially said so as well.

(Id. at 39-40.) After deliberation, the City Council voted 8 to 5 to grant the Ethel Project appeal and determine that the Ethel Project could vest in ED1’s ministerial process, even though the Ethel Project was located in a single-family residential zone. (Id. at 64; RJN Exh. F.)

On January 11, 2024, City Planning issued an Appeal Recommendation Report recommending that the City Council deny Mamba’s appeal of the incompleteness determination. (AR 410-423.) In summary, City Planning opined that “ED1 is not a standard, ordinance or policy that is subject to the vesting rules in” the HAA or the HCA. (AR 413; see also AR 419-422.) At its meeting on January 30, 2024, the City Council considered Mamba’s appeal. (AR 1150, 1165.) The City Council unanimously denied the appeal. (AR 1150.) The meeting transcripts do not include any express findings or deliberation of the City Council with respect to Mamba’s appeal. (See AR 1151-1246.) However, the motion approved by the City Council adopted the reasoning of the City Planning’s appeal report dated January 11, 2024. (AR 1149-1150.)

This is an action to enforce the Housing Accountability Act (“HAA”). Although Petitioners also plead a cause of action under the Permit Streamlining Act (“PSA”), the “completeness” of Mamba’s application under the PSA is, fundamentally, a question of whether ED1 granted vesting rights to the Project under the HAA. Accordingly, the standard of review from the HAA governs that issue.

The HAA requires that, “[a]ny action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure. . . .” (Gov. Code § 65589.5(m)(1).) The court’s task “is therefore to determine whether the City proceeded in the manner required by law,’with a decision supported by the findings, and findings supported by the evidence; if not, the City abused its discretion.” (Cal. Renters Legal Advocacy and Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 837, citations and internal quotations omitted.) The City “bear[s] the burden of proof that its decision has conformed to all of the conditions specified in Section 65589.5.” (Gov. Code § 65589.6.)[1]

The court exercises independent judgment on questions of law arising in mandate proceedings, such as the interpretation of a statute or regulation. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) To the extent “purely legal issues involve the interpretation of a statute [or regulation] an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, taking into account and respecting the agency’s interpretation of its meaning.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343, citations and internal quotations omitted; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

Petitioner seeks judicial notice of Exhibit A through Exhibit J. Respondent does not oppose the request. Consistent with section 1094.5(e), the court may consider these exhibits for purposes of statutory construction. Therefore, the request is granted. However, the court would reach the same result on the petition even if judicial notice was denied.

In denying Mamba’s appeal, the City Council adopted the City Planning appeal report, which concluded that “ED1 is not a standard, ordinance or policy that is subject to the vesting rules in” the HAA or the HCA. (AR 413, 419-422, 1149-1150.) Petitioners contend that the City Council erred in its interpretation of the HAA. (Opening Brief (“OB”) 13-16.)

The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.

(Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340 [internal citations omitted].)

In 2019, the Legislature enacted the HCA and added a new “preliminary application” process designed to “stop[] [local governments] from changing the rules on builders who are in the midst of going through the approval process.” (RJN Exh. G at 7; see also Gov. Code

§ 65941.1(a).) Under the HAA, a housing developer that submits a preliminary application that contains all the information required by section 65941.1(a) “shall be subject only to the ordinances, policies, and standards” in effect at the time the preliminary application is submitted. (§ 65589.5(o)(1).) The HAA defines “ordinances, policies, and standards” broadly to include “general plan, community plan, specific plan, zoning, design review standards and criteria, subdivision standards and criteria, and any other rules, regulations, requirements, and policies of a local agency … including those relating to development impact fees, capacity or connection fees or charges, permit or processing fees, and other exactions.” (Gov. Code § 65589.5(o)(4), emphasis added.)

Here, ED1 orders that “[a]pplications for 100% affordable housing projects . . . shall be, and hereby are deemed exempt from discretionary review processes otherwise required by either the zoning provisions of Chapter 1 of the LAMC or other Project Review including Site Plan Review ….” (AR 713.) It is undisputed that the Project is a “100% affordable housing project” within the meaning of ED1 and that Mamba submitted a preliminary application that contained all the information required by section 65941.1(a). (See AR 137-47.) Thus, the court need only determine whether ED1 fits within the HAA’s definition of “ordinances, policies, and standards.”

ED1 was issued by the Mayor pursuant to section 231(i) and (j) of the City Charter. Section 231(i) of the City Charter states that the Mayor “shall have the power and duty to: … declare a local emergency ….” Section 231(j) states that the Mayor has the power and duty to issue “executive directives, which, in the absence of conflicting provisions in the Charter or ordinance, and until revised or rescinded by the Mayor, shall be binding on all departments, commissions, appointed officers and employees of the City.” (RJN Exh. C at 3.) Respondents do not argue that ED1 conflicted with the Charter or City ordinances in any way. Thus, because ED1 sets forth a “binding” development rule, it falls within the HAA’s broad definition of “ordinances, policies, and standards.”

The City concluded that an emergency directive, like ED1, “does not carry with it the legislative intent of process, procedures, and development regulations expected to be vested under Government Code Sections 65589.5 and 65941.1.” (AR 421.) However, the plain language of the statute shows that the Legislature intended the HAA’s vesting provision to apply to more than just legislatively enacted development standards. Section 65589.5 broadly defines the items eligible for vesting to include “any other rules, regulations, requirements, and policies of a local agency.” (Gov. Code § 65589.5(o).) By contrast, the provision that requires a local agency to identify project inconsistencies is only applicable to “general plan, zoning, and subdivision standards and criteria, including design review standards.” (Gov. Code § 65589.5(j)(1).) The provision that allows for the disapproval of affordable housing projects is narrower still and limited to instances of inconsistency with a “jurisdiction’s zoning ordinance and general plan land use designation.” (Gov. Code § 65589.5(d)(5).) When interpreting a statute, “significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.” (People v. McCart (1982) 32 Cal.3d 338, 342-343.) The HAA also instructs 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.” (Gov. Code § 65589.5(a)(2)(L).) Accordingly, the phrase “any other rules, regulations, requirements, and policies” in section 65589.5(o)(4) is reasonably interpreted to include housing development rules or policies of a local agency created by an emergency directive of the local agency’s mayor and that are binding on the City during the declared emergency.

Respondents contend that ED1 did not fall within the scope of the HAA’s vesting provision because “an emergency declaration is limited in duration” and the HAA “is intended to vest projects against changes in long-term substantive requirements, not the temporary emergency processing schedules referenced in Original ED1.” (Oppo. 14, citing City Charter § 231(i) and LAAC §§ 8.27, 8.29, and 8.31.) This argument conflicts with the Legislature’s purpose in enacting the HCA and HAA provisions at issue. The Legislature acknowledged that all local development rules are limited in duration and can be amended at any time, and the vesting rule was added to stop local governments “from changing the rules on builders who are in the midst of going through the approval process.” (RJN Exh. G at 7.) The fact that ED1 could be changed at any time supports applying the vesting rule, as affordable housing developers like Mamba relied on ED1 when deciding to pursue a project. (See AR 905.) Further, the City Charter and LAAC do not impose any specific time limit on how long an emergency declaration may last.[2] Indeed, the City’s declared housing emergency has been ongoing for nearly two years and was ratified by the City Council. (RJN Exh. H.)

The City is not entitled to deference in its interpretation of the HAA and HCA vesting rules, which are state law, not local ordinances. Further, as Petitioners argue, the City’s position with respect to the vesting rules has not been consistent. (See Reply 5:19-25.) As examples, the ED1 Guidelines inform applicants that a preliminary application “locks in” existing standards. (RJN Exh. B at 14.) The City Council granted the Ethel Project appeal and determined that the Ethel Project could vest in ED1’s ministerial process, even though the Ethel Project was located in a single-family residential zone. (RJN Exh. E at 64; RJN Exh. F.) The City does not explain this inconsistency to the court’s satisfaction.

In contrast, HCD has been consistent in its interpretation of the HAA vesting rules as applied to ED1. (See RJN Exh. C.) Respondents do not show otherwise. Further, HCD’s interpretation is well-reasoned and supported by the plain language of the HAA. “The amount of deference given to the administrative construction depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508, 524.) Based on these factors, HCD’s interpretation of the HAA vesting rules as applied to ED1 is entitled to some weight, while the City’s interpretation is not.

Based on the foregoing, the City Council prejudicially abused its discretion when it concluded that an emergency directive, like ED1, does not qualify for vesting under section 65589.5(o) of the HAA. (AR 413, 419-422, 1149-1150.)

Respondents contend that the original ED1 was meant to apply to multi-family zones, not single-family zones, and that the court should defer to the City’s interpretation of ED1. (OB 15-16.) City Planning and the City Council did not deny Mamba’s appeal on this basis. (See AR 413, 419-422, 1149-1150.) City Planning acknowledged in the appeal report that “the Mayor's [original] ED1 was not express about disqualifying multiunit projects in R1 and more restrictive zones,” and City Planning did not opine in the appeal report that the original ED1 should be interpreted to apply only to multi-family zones. (AR 413.) Generally, courts do not accept post hoc rationalization for agency action. (See Motor Vehicle Mfrs. Assn. v. State Farm Mut. (1983) 463 U.S. 29, 50; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 81.)

Regardless, the original ED1 applies to all “[a]pplications for 100% affordable housing projects . . . as long as such plans do not require any zoning change, variance, or General Plan amendment.” (AR 713.) ED1 did not restrict projects to multi-family zones and it was later amended to add this restriction. (AR 713-715 and 764-67.) If the original ED1 had prohibited projects in single-family zones, there would have been no need to amend it. (See Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1337 [“Where changes have been introduced to a statute by amendment it must be assumed the changes have a purpose….”].)

The City is not entitled to deference in its interpretation of the original ED1. (See Oppo. 15.) The City’s interpretation conflicts with the plain language of the original ED1. Further, The City’s interpretation has not been consistent. Notably, the City’s own planning department confirmed that projects in single-family zones were eligible for ED1. (See e.g., AR 137, 171, 296.) The City assigned the application an “administrative review” case number (Case No. ADM-2023-4205), which the City would not have done if the Project was not ED1 eligible. (Ibid.; see AR 296-299, 1029-30.) The City also has interpreted ED1 inconsistently, as evidenced by its approval of the Ethel Project and its denial of the Olinda Project even though both are located in single-family zones. Deference is only afforded to “consistent” and “long standing” interpretations, which is not the case here. (Mason v. Retirement Board (2003) 111 Cal.App.4th 1221, 1228.)

Respondents argue that the City “cannot be estopped from applying its zoning laws” based on its initial “error” in accepting Mamba’s application with an “administrative review” case number. (Oppo. 16-17.)

[T]he rule of law is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is [precluded] from averring against the latter a different state of things as existing at the same time.

(Feduniak v. Cal. Coastal Comm. (2007) 148 Cal.App.4th 1346, 1359 [internal quotations and citations omitted].) As discussed, the City did not err in its initial determinations that the Project was “ED1 eligible” and that it should be assigned an administrative review case number. (See AR 137, 296-299, 1029-30.) Petitioners do not argue that the City is estopped, by its prior statements or actions, from applying its zoning laws. Rather, Petitioners contend that the Projected vested under the development rules set forth in ED1 – by operation of law – when Mamba filed its HCA preliminary application. Estoppel does not apply in these circumstances and Respondents’ arguments based on estoppel are irrelevant.

The City’s reference to its status as a charter city is also irrelevant. (See Oppo. 17-18.) The HAA explicitly applies to charter cities, and the Court of Appeal has confirmed the HAA does not violate a charter city’s municipal authority. (See California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 835, 847-853.)

Respondents raise arguments concerning the completeness of Mamba’s preliminary application and compliance with deadlines specified in the Permit Streamlining Act (“PSA”). Respondents contend that the City Council properly denied Mamba’s appeal because “the Project Application was factually incomplete” and “[t]he City has no ministerial duty to accept an incomplete application.” (Oppo. 19.) As discussed, the application was complete under ED1. It is undisputed that the Project is a “100% affordable housing project” within the meaning of ED1 and that the application contained all the information required by section 65941.1(a). (See AR 137-47.)

Petitioners contend that the City’s failure to recognize vesting rights is a violation of the HAA. (OB 16-17.) Respondents do not argue otherwise. (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) The HAA states that a local agency violates the HAA if it “required or attempted to require a housing development project to comply with an ordinance, policy, or standard not adopted and in effect when a preliminary application was submitted.” (§ 65589.5(k)(1)(A)(i)(III).) As shown by the analysis above, this is exactly what the City did. (See AR 296-299, 302-303, 413-422, 1149-1150.) Accordingly, the court will issue a writ compelling compliance with the HAA within 60 days. (Gov. § 65589.5(o) and (k)(1)(A)(i) and (ii); Pet. Prayer ¶ 3.)

Petitioners contend that the City Council violated the HAA when it denied Mamba’s administrative appeal and thereby “disapproved” of the ministerial Project for which Mamba applied. (OB 17.) It is undisputed that the Project qualifies as a “housing development project” and “housing for very low, low-, or moderate-income households” under the HAA. (Gov. Code § 65589.5(h)(2) and (3).) The HAA prohibits a local government from disapproving of such housing projects unless it makes written findings based on a preponderance of the evidence in the record as to one of five specifically enumerated findings. (Gov. Code § 65589.5(d).) As Respondents acknowledge, the City has not made such findings. (See Oppo. 20-21.) Thus, the legal issue is whether the City “disapproved” the Project within the meaning of the HAA.

The HAA states, in relevant part, that the phrase “disapprove the housing development project” includes “any instance in which a local agency . . . [v]otes on a proposed housing development project application and the application is disapproved, including any required land use approvals or entitlements necessary for the issuance of a building permit….” (Gov. Code § 65589.5(h)(6), emphasis added.) 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.” (Gov. Code § 65589.5(a)(2)(L).) In addition, “[a]s a basic principle of statutory construction, ‘include’ is generally used as a word of enlargement and not of limitation…. Thus, where the word ‘include’ is used to refer to specified items, it may be expanded to cover other items.” (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1227.)

The City Council’s decision to deny Mamba’s appeal of the incompleteness determination falls within the broad definition of “disapprove” under the HAA. As discussed, the Project is a “100% affordable housing project” that qualifies for ministerial processing under ED1. (See AR 137-47.) Despite this, City Planning converted the Project from ministerial to discretionary through the incompleteness determination. (See AR 296-299, 302-303.) City Planning’s conversion of the ministerial application to a discretionary one was the equivalent of a disapproval of the application based on a substantive determination that the Project was no longer eligible for ED1. Stated another way, City Planning determined that Mamba could not obtain the “required land use approvals or entitlements necessary for the issuance of a building permit” for the ministerial project for which Mamba applied. Accordingly, when the City Council voted to uphold that determination, it “disapproved” of the ministerial project for which Mamba applied. (Gov. Code § 65589.5(h)(6).)

Respondents assert that “[t]here is no text in the HAA or the PSA that equates a decision on a PSA incompleteness appeal with a disapproval of the merits of a development application subject to the HAA.” (Oppo. 21.) Respondents’ argument is unpersuasive because it is based on the premise that a local agency can convert a ministerial project to a discretionary one and then claim “incompleteness” when the applicant does not submit materials only required for a discretionary project. Respondents do not cite any legal authority in support of that position, and the court has not found any.

The court finds that the City Council “disapproved” of the Project within the meaning of the HAA when it voted to deny Mamba’s appeal of the incompleteness determination. The City did not make written findings based on a preponderance of the evidence in the record as to one of the five findings required by the HAA to disapprove of a housing development project. Accordingly, the court will issue a writ compelling compliance with the HAA within 60 days. (Gov. Code § 65589.5(d) and (k)(1)(A)(i) and (ii); Pet. Prayer ¶ 3.)

Petitioners contend that the City Council acted in bad faith when it disapproved the Project and, as a result, the court “must order the local government to approve the project within 60 days.” (OB 18.) Under the HAA, “[t]he court may issue an order or judgment directing the local agency to approve the housing development project or emergency shelter if the court finds that the local agency acted in bad faith when it disapproved or conditionally approved the housing development or emergency shelter in violation of this section.” (Gov. Code § 65589.5(k)(1)(A)(ii).) The HAA states that “‘bad faith’ includes, but is not limited to, an action that is frivolous or otherwise entirely without merit.” (§ 65589.5(l).) A claim may be “frivolous” if it is “not well grounded in fact” or “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Bad faith may also be established if actions are taken for an improper purpose. (Trujillo v. City of Los Angeles (1969) 276 Cal. App. 2d 333, 338; Smith v. Selma Cmty. Hosp. (2010) 188 Cal. App. 4th 1, 34.)

The court has no tentative order on the issue whether the City acted in bad faith. On the one hand, the question of whether HAA vesting rights apply to an emergency directive of a local agency is one of first impression. It appears the Court of Appeal has not decided that issue, or a similar one, in a published appellate decision. Although HCD’s technical guidance deserves some deference, it is not binding on the court or on the City. It was not frivolous or improper for the City to disagree with HCD with respect to the proper interpretation of the HAA. Since a mayor’s declaration of emergency will often be of temporary duration and is not legislative in nature, the court cannot say that it was entirely without merit for the City to conclude that ED1 does not qualify for HAA vesting. On the other hand, the City does not sufficiently explain the different treatment between the Ethel Project and the Olinda Project.

Petitioners also contend that the Project vested under Los Angeles Municipal Code section 12.26.A.3. (OB 16.) Because the court finds that the Project vested under ED1 and the HAA, the court need not reach this contention.

Petitioners also seek declaratory relief. The court declines to issue a declaratory judgment because Petitioners have an adequate remedy in the writ causes of action. (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471; Hood v. Sup.Ct. (1995) 33 Cal.App.4th 319, 324.)

1. The court grants the petition for writ of mandate on the first and second causes of action.

2. The court will enter a judgment and writ directing the City Council to set aside its decision finding Mamba’s application to be incomplete and to reconsider that decision in light of this court’s opinion and judgment. The court will grant a writ directing the City to review and process Mamba’s application pursuant to the PSA and in a manner not inconsistent with this court’s opinion and judgment. (Pet. Prayer ¶ 1.) The court will also issue a writ compelling compliance with the HAA within 60 days. (§ 65589.5(d), (o), and (k)(1)(A)(i) and (ii); Pet. Prayer ¶ 3.)

3. The court declines to issue a declaratory judgment because Petitioners have an adequate remedy in the writ causes of action. (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471; Hood v. Sup.Ct. (1995) 33 Cal.App.4th 319, 324.)

[1] To the extent the petition raises PSA issues that are governed by traditional mandate, Code of Civil Procedure section 1085, the court “must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

[2] Section 8.31 states, in part, that “[u]pon the announcement by the Council of the City of Los Angeles of the termination of the existence of the local emergency by operation of law, such rules, regulations, orders and directives shall terminate and be of no further force or effect.”