This post was authored by Alan Murphy of Perkins Coie LLP and first appeared on the Perkins Coie website here: https://www.perkinscoie.com/en/news-insights/california-law-limiting-ability-of-local-governments-to-deny-housing-development-applications-upheld.html

In a major recent decision, the California Court of Appeal rejected a city’s interpretation of what constitutes an “objective” standard under the Housing Accountability Act (HAA), Government Code section 65589.5, and upheld the constitutionality of the law and amendments that strengthened it.[1] The opinion in California Renters Legal Advocacy and Education Fund v. City of San Mateo reinforces and upholds significant limitations imposed by the HAA on local consideration of housing development applications.

The HAA tightly restricts a local government’s ability to disapprove a proposed housing development that “complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards.” In 2017, the California Legislature passed the first of several packages of bills designed to increase housing supply by, among other approaches, strengthening the HAA. One of the 2017 bills bolstered the HAA’s objective standards restriction by adding subdivision (f)(4) to Government Code section 65589.5. This subdivision provides that a housing development project is deemed to comply with an applicable standard if “substantial evidence … would allow a reasonable person to conclude” that it does.

In California Renters, the City of San Mateo (City) denied an application to construct a four-story, ten-unit multifamily residential building. The court first concluded that the City’s denial of the project failed to comply with the HAA. The court then considered and rejected arguments that subdivision (f)(4) was unconstitutional and, in the process, held that the HAA, as a whole, did not impermissibly infringe on charter cities’ rights to control their own municipal affairs.

Compliance With “Objective” Standards

In denying the development application, the City made findings that the project failed to comply with adopted design guidelines. Yet the court determined that the relevant guidelines were not objective standards under the HAA due to their ambiguous language and lack of specificity, and, therefore, could not support disapproval of the housing project.

The guidelines provided that “a transition or step in height is necessary” if the height of adjacent buildings varies by more than one story. According to the City, a two-story differential between the proposed structure and adjacent single-family dwellings required a “stepback” in building height to comply with the guidelines.

The court determined that objective standards under the HAA do not include those that require “personal interpretation” or “subjective judgment,” and the court held that these design guidelines failed this test. The guidelines were unclear, the court determined, as to whether a stepback in height was required or, alternatively, if a “transition” in height provided by the project’s large trees and trellises could be sufficient. Further, to the extent the guidelines required a stepback in height, they failed to specify how extensive that stepback must be.

Constitutionality of the HAA

The court next upheld the constitutionality of the HAA against three arguments raised by the City. In its most significant ruling, the court disagreed with the City that the HAA and its amendments infringed on the City’s right to “home rule,” or control of its own municipal affairs as a charter city. Citing legislative findings and the HAA’s express purpose of ameliorating the housing crisis, the court concluded that the HAA “patently addresses a matter of statewide concern”—increasing the state’s housing supply. Further, the court held, the HAA is “narrowly tailored” to avoid unnecessary interference in local governance. While the HAA limits local agencies’ ability to reject new housing based on subjective criteria, the law leaves them free to establish compliant objective policies and development standards to meet local needs.

The court also rejected the City’s contentions that subdivision (f)(4) of the HAA unconstitutionally delegates municipal functions and violates the due process rights of neighboring landowners. The court reasoned that the new statutory provision does not cede municipal authority to private persons, nor does it prevent neighbors from having a meaningful opportunity to be heard.

Conclusion

For the second time this year, the Court of Appeal both has rejected a charter city’s interpretation of a key state housing law and has upheld the law’s constitutionality against a “home rule” challenge. The California Renters court echoed the reasoning the court adopted in April when it upheld Senate Bill 35 streamlining against similar challenges. Together, the decisions demonstrate a continued recognition by the courts that all local governments must comply with state housing law.

California Renters Legal Advocacy and Education Fund v. City of San Mateo, Nos. A159320, A159658 (1st Dist. Sept. 10, 2021).

This a good year to check out the 35th Annual National Land Use Institite, hosting by the Jacob D. Fuchsberg Touro Law Center’s Land Use and Sustainable Development Institute. The 4 half-day programs will take place on October 19, 20, 26 and 27. The full conference brochure is linked below. Sponsors include the American Bar Association’s State and Local Government Law Section, the New York State Bar Association’s Local and State Government Law Section, and the New York Planning Federation.

Key Topics to be Discussed Include:


• Case Law Update on Planning, Land Use, and Eminent Domain Decisions
• Federal Laws, Regulations, and Programs Affecting Local Land Use
Decision-Making
• New Opportunities for Affordable Housing
• Redevelopment: Re-Purposing Excess Office and Retail Space
• Addressing the Challenges of Climate Change
• Jurisdiction Over Native American Tribal Lands
• Ethical Considerations for the Land Use Practitioner and Government Lawyer
• Diversity, Inclusion, and Bias Considerations for Practitioners

Check out this alert by Holland & Knight highlighting:

  • Chapter 8 of the Acts of 2021, An Act Creating a Next-Generation Roadmap for Massachusetts Climate Policy, requires the development of a voluntary municipal specialized stretch energy code within 18 months of the Climate Act’s passage; however, no plans have been announced by the Massachusetts Department of Energy Resources or the Board of Building Regulations and Standards.
  • Meanwhile, Massachusetts municipalities are seeking to use the Massachusetts legislative process to develop their own climate-influenced building code regulations in the absence of state action.

https://www.jdsupra.com/legalnews/massachusetts-municipalities-pursue-3638964/

This post first appeared on the Municipal Minute Blog by AncelGlink and it is reposted with permission.

In 2018, Pumilia purchased a property in Rockford that had previously been used for a used car dealership, intending to operate a similar business on the lot. He bought the property, obtained insurance, improved the parking lot, and ordered signs for the new business. When the sign company filed an application for a sign permit with the City, it triggered a City zoning review. Shortly thereafter, the City informed Pumilia that the previously issued special use permit to allow a used car dealership had lapsed under the City’s ordinance because the used car business had not been operated for 12 months or more. City staff informed him that he would have to apply for a new special use permit, which he subsequently did. However, both the ZBA and City Council denied the special use request, and he sued.

In his lawsuit against the City, Pumilia claimed that the special use permit to operate the used car lot was re-established based on City staff’s actions and that he was entitled to monetary damages for the City’s actions. The trial court ruled in his favor, finding that the special use was not abandoned and awarding Pumilia his court costs as well as damages for his $2,500 business bond and $5,868 that he incurred for vehicle storage. 

The City appealed, and the appellate court upheld the ruling on the special use but vacated the award of damages.

First, the appellate court determined that although the property was not used as a used car lot for more than 12 months, Pumilia had “reestablished” the special use when he applied for a new special use and when City staff issued positive findings of fact on the special use, which the appellate court determined was expressly provided for in the zoning code. Specifically, the appellate court cited the provision in the zoning code that allowed a property owner to reestablish a special use if staff provides a positive review on six findings of fact.

On the issue of damages, the appellate court rejected the trial court’s award, finding that the City was clearly entitled to immunity from damages under the Tort Immunity Act. The appellate court rejected Pumilia’s argument that he was entitled to damages because City staff acted “willfully or maliciously,” finding that because City staff’s determination in this case was discretionary, it did not affect the immunity afforded to the City under the Tort Immunity Act.

Pumilia v City of Rockford, 2021 IL App. (2d) 200681-U (7/26/2021)

Petitioners challenged the decision of the Town Board that granted respondents’ application for a variance from the requirement that they must obtain a building permit before making improvements to their property. The Appeallate Court was unable on the record before them to review the propriety of Supreme Court’s conclusions regarding the Town Board’s determination stating, ” although the Town Board held a public hearing and a meeting to discuss
respondents’ application and engaged in a lengthy discussion regarding that application, the Town Board failed to articulate its reasons for granting the variance and failed to set forth any findings of fact to support its determination.” Therefore the Court helds its determination in reserve and and remitted the matter back to the Town Board.

Guttman v Covert Town Board, 2021 WL 3782998 (NYAD 4 Dept. 8/26/2021)

This post was authored by Olena Botshteyn, Esq.

In 2017, William Drummond, appellant in this case, leased a 265-acre property in Robinson Township with the purpose of operating a shooting range and engaging in the retail sale of guns. The property had a history of being used as a gun club before 2007, which Drummond planned to reopen. At the time, the gun ranges were permitted in three types of districts: Industrial and Special Conservation districts could host “Shooting Ranges,” and Interchange Business Districts (IBD), where the proposed range was located could host “Sportsman’s Clubs.” The same safety standards and rules applied to both categories of ranges. However, when the town residents learned about Drummond’s plans, to avoid possible nuisance they requested for re-zoning “to limit activities at the property.” The Board then imposed new rules, which limited Clubs to “pistol range, skeet shoot, trap and skeet, and rim-fire rifle” practice and provided a new definition of a “Sportsman’s Club” as a nonprofit entity aimed at wildlife conservation. In 2018, Drummond commenced this lawsuit, claiming that the ordinance is facially unconstitutional and that “the rules restrict his customers’ efforts to acquire firearms and maintain proficiency in their use.” The district court dismissed the complaint, and Drummond appealed.

On appeal, the court first referred to the Heller case as a guide for Second Amendment jurisprudence, and determined that similarly to the First Amendment cases, court must make a historic inquiry to determine whether a law interferes with the Second Amendment and then conclude that the law would survive “some form of heightened scrutiny.” Therefore, the court had to question whether regulations proposed by the town constituted an exception to the right to bear arms that dated back in history. Since the court found that historically training with common weapons was never barred in areas where firearms practice was otherwise permitted and nor did it find historical evidence of prohibitions on the commercial operation of gun ranges, it concluded that the rules attract intermediate scrutiny. To pass intermediate scrutiny, a rule must serve a “significant, substantial, or important” government interest, and it may not burden more conduct than is reasonably necessary. The court agreed that the government has an important interest of advancing public health, safety and welfare here, however, it determined that the Town failed to show that the challenged zoning laws will necessarily advance this interest. In court’s opinion, the Town could achieve its goals by implementing occupancy limits or hours-of-operation restrictions, but instead it introduced the and rim-fire rifle and non-profit rules, which are not linked to the asserted interest. Accordingly, the court vacated the district court’s order and remanded for further proceedings.

Drummond v Robinson Township, 2021 WL 3627106 (3rd Cir CA 8/17/2021)

This post was authored by Olena Botshteyn, Esq.

David Meyberg commenced this action after being denied an operating permit for his surf school, asserting violation of the Sherman Antitrust Act, as the city limited the number of permits available, as well as violation of the First Amendment rights, arguing that the City employee prevented him from operating his surf school in retaliation for prior litigation. The district court dismissed the action, and Meyberg appealed.

On appeal, the court concluded that both Meyberg’s claims fail. First, it determined that the city is immune from a claim under the Sherman Antitrust Act. The Supreme Court has previously held that local governments are immune as long as the challenged action was “undertaken pursuant to a ‘clearly articulated and affirmatively expressed’ state policy to displace competition,” authorized by the state. Both the California Government Code and the Coastal Act provide for expressly delegated zoning authority by the state to the city, and with the aim of promoting conservation of coastal zone resources the city was authorized to limit business activity on public beaches. Accordingly, the court concluded that the city was entitled to limit the number of surf school permits available.

Further, with respect to the First Amendment violation, Meyberg claimed that a City employee, Carol Scurich, was a party in a 2007 lawsuit in which he acted as counsel, and therefore, her actions in denying a permit can be regarded as retaliation. The court ultimately concluded that Meyberg failed to provide evidence that “the protected activity was a substantial or motivating factor in Scurich’s conduct.” The court thus affirmed the decision of the district court.

Meyberg v City of Santa Cruz, 2021 WL 3630226 (9th Cir CA 8/17/2021)

This post was authored by Olena Botstheyn, Esq.

In 2017, William Drummond, appellant in this case, leased a 265-acre property in Robinson Township with the purpose of operating a shooting range and engaging in the retail sale of guns. The property had a history of being used as a gun club before 2007, which Drummond planned to reopen. At the time, the gun ranges were permitted in three types of districts: Industrial and Special Conservation districts could host “Shooting Ranges,” and Interchange Business Districts (IBD), where the proposed range was located could host “Sportsman’s Clubs.” The same safety standards and rules applied to both categories of ranges. However, when the town residents learned about Drummond’s plans, to avoid possible nuisance they requested for re-zoning “to limit activities at the property.” The Board then imposed new rules, which limited Clubs to “pistol range, skeet shoot, trap and skeet, and rim-fire rifle” practice and provided a new definition of a “Sportsman’s Club” as a nonprofit entity aimed at wildlife conservation. In 2018, Drummond commenced this lawsuit, claiming that the ordinance is facially unconstitutional and that “the rules restrict his customers’ efforts to acquire firearms and maintain proficiency in their use.” The district court dismissed the complaint, and Drummond appealed.

On appeal, the court first referred to the Heller case as a guide for Second Amendment jurisprudence, and determined that similarly to the First Amendment cases, court must make a historic inquiry to determine whether a law interferes with the Second Amendment and then conclude that the law would survive “some form of heightened scrutiny.” Therefore, the court had to question whether regulations proposed by the town constituted an exception to the right to bear arms that dated back in history. Since the court found that historically training with common weapons was never barred in areas where firearms practice was otherwise permitted and nor did it find historical evidence of prohibitions on the commercial operation of gun ranges, it concluded that the rules attract intermediate scrutiny. To pass intermediate scrutiny, a rule must serve a “significant, substantial, or important” government interest, and it may not burden more conduct than is reasonably necessary. The court agreed that the government has an important interest of advancing public health, safety and welfare here, however, it determined that the Town failed to show that the challenged zoning laws will necessarily advance this interest. In court’s opinion, the Town could achieve its goals by implementing occupancy limits or hours-of-operation restrictions, but instead it introduced the and rim-fire rifle and non-profit rules, which are not linked to the asserted interest. Accordingly, the court vacated the district court’s order and remanded for further proceedings.

Drummond v Robinson Township, 2021 WL 3627106 (3rd Cir CA 8/17/2021)

This post was authored by Olena Botshteyn, Esq.

In November 2018, Razz Halili Trust (“Trust”) applied to the Hancock County Planning and Zoning Commission (“Commission”) for site-plan approval to operate a marina. The application stated that the Trust did not intend to process seafood in any way, only to unload oysters for further shipping. The Trust’s property is located in Zone C-4, where the use as a marina is allowed as a matter of right. The County zoning ordinance defines a marina as a “boat basin, harbor or dock, with facilities for berthing and servicing boats, including bait and fishing tackle shop and eating establishments.”

In January 2019, the Commission held a hearing on the Trust’s application and unanimously voted to recommend approval to the Board of Supervisors of Hancock County (“Board”). Further, at the meeting with the Board, the Trust clarified the intended use of the property, stating that they would merely be unloading oysters at the site, and the only equipment there would be a conveyor to get them to the trucks. The Board members were not certain whether unloading oysters does not mean processing them, as seafood processing is a prohibited use in Zone C-4. The Board referred to a state licensing statute, defining a seafood processor as a person “engaged in the canning, processing, freezing, drying, or shipping of oysters, fish, saltwater crabs, or saltwater shrimp.” The Board then concluded that the site plan was for seafood processing and not a marina, because the Trust intended to ship oysters, and rejected the application. The Trust appealed to the circuit court, which concluded that there was no evidence in the record, indicating that seafood processing would occur at the site and reversed the Board’s decision. The Board then appealed.

On appeal, the court concluded that the Board’s decision was arbitrary, capricious and not supported by substantial evidence, and affirmed. First, the court stated that the Board’s decision to rely on state licensing statute’s definition rather than the definitions in its own ordinance to determine the Trust intended to have a marina at the site or process seafood was unreasonable and showed that the Board disregarded the facts in this case. The court further clarified that the Trust’s status as a seafood processor is irrelevant here; what was relevant was whether the Trust actually intended to process seafood at the site. Nothing in the record indicated that the Trust intended to do anything beyond unloading oysters for further shipping. In other words, even if the Trust was a seafood processor by classification, this did not mean that it would be engaged in processing oysters at the site. The court ultimately concluded that the Board misunderstood the facts and failed to apply them to the law, held that that the Board’s decision was arbitrary and capricious, and affirmed the decision of the circuit court.

Board of Supervisors of Hancock County v Razz Halili Trust, 2021 WL 2587103 (MS 6/24/2021)

This post was authored by Olena Botstheyn, Esq.

Styller family owned a family house in a single-resident zoning district in the town of Lynnfield (“Town”). Between 2015 and 2017 the house was used for short-term rentals and rented out multiple times to a group of six or more guests. In 2016, the Town building inspector notified Styller that use of his home for short-term rentals violated the town’s zoning bylaw, as it constituted a lodging or rooming and qualified as additional use under the bylaw and required a prior authorization. The building inspector then ordered Styller to stop offering the house for short-term rentals, and Styller appealed to the board. While the appeal was pending, the town amended its bylaw expressly to prohibit short-term rentals in single-resident zoning districts, without prior authorization. The board then upheld the decision of the building inspector. Styller commenced an action with the Land Court, which affirmed the board, having concluded that before the bylaw was amended, “short-term rental use of the property constituted an additional use because it was functionally equivalent to use as a “tourist home” or “lodging house.” Styller appealed.

On appeal, the court first considered the issues of standing and mootness, as after the trial in the Land Court, but before judgment entered Styller sold the property. The court concluded that Styller had standing, since the use of the property is not such that is linked with a particular party. With regard to mootness, despite the fact that the ownership transferred and Styller may no longer have personal stake in the litigation, the court decided to exercise discretion and decide this case in the public interest, stating that it is “an important public question whose resolution will affect more persons than the parties to the case.”

Further, the court stated that it agreed with the plaintiff that the short-term rental was not an additional use, but ultimately concluded that it was not a specifically permitted principal use either. The court evaluated the terms of a “lodging house” and a “tourist home” and came to a conclusion that short-term rentals do not qualify for either one, as both terms entail that only part of a property is occupied by a person that comes for a short stay, and the rest is occupied by the owner, who remains on the property. During short-term rental of Styller’s house, tourists occupied all rooms in the house and the owner was not on the property. Nonetheless, the house did not constitute a permissible primary use as a one family detached house either, according to the court. The primary purpose of the single-residence zoning district is to preserve the residential character of the neighborhood. Where short-term rentals are at issue, there is an “absence of stability and permanence of the individuals residing in those districts, [and] the goal is necessarily subverted.” A “residence” is commonly understood to mean a place where one stays permanently, not temporarily. The court thus concluded that the plaintiff’s use of the property for short-term rentals was not a permissible use under the Town’s zoning bylaw and affirmed.

Styller v Zoning Board of Appeals of Lynnfield, 487 Mass. 588 (MA 6/7/2021)

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