Lafayette v. City of Lafayette (2022) 2022 Cal.App.LEXIS 979

A citizens’ group (Save Lafayette) petitioned for a Writ of Mandate, claiming that the project conflicts with the City’s General Plan as it existed when the project was revived in 2018.  The trial court denied the petition and the appellate court ruled that despite the lengthy delay between the certification of the EIR and the project, the City properly applied the General Plan and Zoning standards in effect when the application was deemed complete.   

O’Brien Land Company, LLC (“O’Brien”) applied in March 2011 for approval of a 315-unit apartment project.   City deemed the application complete on July 5, 2011.  An EIR was prepared for the apartment project and City certified the EIR on August 12, 2013.  However, the City’s Design Review Commission recommended that the Planning Commission deny the application for a land use permit. 

O’Brien and City staff then began to consider a lower-density alternative to the apartment project, consisting of 44 or 45 single-family detached homes.  As part of the discussions, O’Brien and the City entered an “Alternative Process Agreement” on January 22, 2014.   The expressed purpose of the process agreement was to establish a process for considering the project alternative; to “suspend” the apartment project in the meantime; and to “preserve” all of the parties” “rights and defenses . . . with regard to the Apartment Project” until the City made a determination on the project alternative.   After much delay, negotiations, and a referendum to downsize the property that was rejected by the voters, the City Council adopted a zoning ordinance that required lot sizes more than three times larger than those the voters had rejected.    On June 15, 2018, O’Brien notified the City that it was terminating the Alternative Process Agreement, and requesting the City to resume processing the apartment project application. 

Since the property had been rezoned for homes on large lots, was the City required to use the General Plan and zoning that was in place at the time that the application was deemed completed in 2011, or when O’Brien terminated the processing agreement in June 2018?   The appellate court ruled that the Housing Accountability Act (HAA) requires that the City must comply with the objective General Plan, zoning, and subdivision standards and criteria in effect at the time the application was deemed complete. (Government Code section 56589.5, subd (d)(5). 

Finally, the Permit Streamlining Act (PSA) addresses processes for permitting housing and other development projects.   One aspect of the PSA requires that public agencies specify upfront what information an applicant for a development project must supply, and then the agency must review applications for completeness within 30 days of receiving them.  (Government Code section 65940, subd. (a)(1), 65943, subd. (a).)   Upon resubmittal of the application, a new 30-day period begins, during which the City shall determine the completeness of the application.  Whether the application was complete for purposes of the PSA was also relevant under the HAA, which incorporates by reference the PSA’s definition of completed application.  (Government Code section 65589.5 subd (h)(5)).

Save Lafayette argued O’Brien’s request to resume processing must be treated as a resubmittal and the application should be reviewed under the standards in effect on a new “deemed complete” date.  The Appellant Court rejected four arguments by Save Lafayette as to why it was not a resubmittal. 

  • The PSA nowhere states that an application was deemed withdrawn, deemed disapproved, or deemed resubmitted at a later date, if after the agency acts within the PSA’s time limits, the applicant fails to perfect its right to a “deemed approval.”  (Government Code section 65956, subd. (b).) 
  • The Legislature made clear in discussing resubmittals that the PSA refers to applications that were resubmitted after the lead agency made a finding that the application as originally submitted was incomplete. 
  • The PSA expressly addresses disapproval of applications for a development project.  The lead agency must specify reasons for disapproval other than the failure to timely act in accordance with time limits of the PSA. 
  • The HAA was designed to meaningfully and effectively curb the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.  Here the application was complete on the date when the City made that determination in 2011, rather than at some later date after the City had twice down-zoned the project site to allow for much less housing development. 

The City deemed the application complete in 2011, and HAA requires the project be assessed against the 2011 General Plan and zoning standards. 

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.