By William W. Abbott

In response to low production of affordable housing units, the City of Santa Monica adopted new and amended ordinances to increase the supply of affordable housing in June, 2006. These enactments were challenged by a coalition of multifamily residential developers on multiple grounds, with two issues going to the Court of Appeals: do the holdings of Nollan and Dolan apply to the ordinance enactment (as compared to the application of an ordinance to a given individual), and were the enactments subject to approval by the Department of Housing and Community Development (“HCD”) pursuant to its review powers of Housing Elements? As to both issues, the appellate court ruled in the negative. Action Apartment Association v. City of Santa Monica (August 28, 2008) 2008 Cal.App.Lexis 1372.

Readers of our earlier blogs (July 2005) probably remember that the bad boy Irish brothers-in-arms Nollan and Dolan involved as applied legal challenges. That is, both decisions dealt with adjudicatory or administrative type permits, in which the legal debate centered around the constitutional limits on imposing conditions as a part of the approval. Attempting to build on language in Lingle v. Chevron U.S.A. Inc, (2005) 544 U.S. 528, the Action Apartment Association ("Association") argued that the same rough proportionality requirement of Nollan/Dolan applied to facial changes to ordinances. Both the trial and appellate courts disagreed. This decision does not mean that inclusionary ordinances (or any other land use type ordinance) cannot be challenged. Rather, the decision establishes that the grounds for a facial challenge are limited.


The Association’s second challenge asserted that these enactments were subject to review and approval by the Department of Housing and Community Development. Here, the court ruled that the HCD’s review was limited to the housing element adopted as part of the general plan. The state agency had certified the City’s housing element, and this certification remained in effect. The appellate court determined that no statute granted HCD’s review and approval authority over affordable housing ordinances, and as a result, the plaintiff failed to state a claim.


Bill Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.


The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.