Last week, CP&DR rank a link to a brief news item reporting that an Orange County judge ruled in favor of Huntington Beach on a controversial Housing Accountability Act case. To our surprise, this turned out to be one of the most-visited items on our web site in recent weeks – and it’s the latest in a long-running saga about fights over housing in Huntington Beach. So this week, we thought we’d take a deeper dive into the Huntington Beach case, which seems likely to become a pivotal appellate court case on the Housing Accountability Act. What the story shows is a developer – and a nonprofit legal advocacy group – trying to hold the city’s feet to the fire on the specifics of the Housing Accountability Act, while a local judge instead provided considerable deference to the city’s action and the city’s reliance on a traffic expert. The key to the city’s success may have been a fire expert who concluded that the project does not meet the city fire department’s standard for fire truck access.
Fights over housing in Huntington Beach have become increasingly common since the beginning of Gov. Gavin Newsom’s administration. Right out of the box in 2019, Newsom sued Huntington Beach over the city’s housing element, partly to make an example of a city that had consistently resisted development of more housing. Importantly to the court case at hand, the focus of much attention was the Beach and Edinger Corridors Specific Plan, adopted in 2011, which concentrated dense residential development along commercial corridors in order to protect nearby single-family neighborhoods. (You can read Morris Newman’s tongue-in-cheek CP&DR analysis of the plan way back when here.)
In 2015, however, the Huntington Beach City Council cut the allowable residential development in the BECSP in half, from 4,500 units to 2,100 units. Subsequently, however, the city’s obligation to affordable housing under the Regional Housing Needs Assessment went up significantly and the state sued Huntington Beach, which settled the lawsuit by adding more affordable housing back into the BECSP. (You can read Josh Stephens’ CP&DR article laying out all these events here.)
Since then, housing politics in Huntington Beach has only gotten more contentious – so much so that recently a group of citizen activists are seeking to recall the entire city council, including one council member who was just seated, in part because they have moved to permit more high-density housing.
Meanwhile, individual developers have tried to move forward with new housing projects in the BECSP area. One such developer was THDT, which in 2017 began working on a proposal to build a condominium project at 8401 Ellis Avenue, a long but narrow one-acre lot near the intersection of Beach Boulevard that currently contains a liquor store and a house. After a year of negotiation, THDT agreed to propose a 48-unit projects with five low-income units. The application was deemed complete in early April 2019, and the Huntington Beach Planning Commission considered the project at its meeting on May 28.
Going into the meeting, the staff recommended approval of the project, saying that it conformed with the BECSP and in fact drafted findings to support the approval of a tentative tract map and conditional use permits. (The staff report and recommended findings for the Planning Commission meeting can be found here.)
The Planning Commission balked, however. According to a legal brief by THDT and the California Renters Legal Advocacy and Education Fund – a document admittedly designed to persuade the court that the city was wrong – several commissioners objected to the project as too big and massive, even though it apparently met the density and bulk guidelines of the BECSP. The CaRLA brief quoted one commissioner as saying that the project met the code guidelines but not the spirit of the specific plan. The Planning Commission told the staff to return with findings supporting a denial.
Two weeks later, on June 11, the Planning Commission turned the project down, relying on a set of findings drafted by the staff saying that the project was not consistent with the BECSP and the city’s general plan. The policies cited were pretty general – for example, the findings said the project was inconsistent with General Plan Policy LU-1D, which says calls on the city to “ensure that new development projects are of compatible proportion, scale and character to complement adjoining uses.” (These findings can be found here.)
At this point, RHDT and CaRLA wrote the city to say that the findings were inconsistent with the Housing Accountability Act, which was strengthened in 2017 to require that projects be denied only if, among other things, the denial is accompanied by findings that objective, quantifiable standards had not been met. In a recent CP&DR article, HAA expert Barbara Kautz was quoted as noting that HAA “essentially replaces any other findings that a city or county might have with the need to find a violation of an objective standard to deny a project.”
The city then commissioned studies from two experts, a traffic expert and a fire expert, and used their conclusions to help justify a revised set of findings supporting denial, which the City Council acted upon on in February 18, 2020. The findings prepared for this meeting were substantially the same as before the Planning Commission, except the traffic and fire experts’ conclusions were included as well. In particular, the traffic expert focused on concern that residents of the project would be required to turn right on Ellis (left turns would be prohibited) and therefore would make a U-turn at Beach Boulevard to go in the other direction on Ellis. According to the finding adopted by the City Council, “The increase in approximately 222 u-turns at this intersection as a result of the project will exacerbate accident rates at this intersection causing an adverse public safety impact.” In this way, the new findings addressed the health and safety issue raised by CaRLA in its letter to the city.
THDT and CaRLA then sued, saying that the findings did not meet the Housing Accountability Act requirements and that the project should be deemed approved. Indeed, the plaintiffs argue that the project should have been deemed approved in May of 2019 because at that point – 30 days after the application was deemed complete -- the city had not provided any information about objective standards being violated, as required by HAA.
In one brief to the Superior Court, CaRLA wrote: “Nowhere in its Findings of Denial does the City identify a single objective, written health or safety standard that the Project fails to meet. While the findings speculate about the numbers of U-turns the project will generate, for example, at no time do the findings article a standard of how many U-turns should be considered unsafe, much less a standard that actually existed in writing at the time the application was deemed complete.” (This brief, along with virtually all documents filed by both sides in the case and the judge’s ruling, can be found on CaRLA’s web site here.)
However, the fire expert did say the project did not comply with the Fire Department’s minimum standards for fire truck access by allowing a 32-foot outer radius rather than the required 45-foot radius.. In particular, the fire expert took issues with a proposed “pork-chop” design of the driveway, which the developer claimed had been devised in response to previous staff concerns.
In response, the city made several arguments, but they were general. The city argued that charter cities should not be subject to the Housing Accountability Act (and, in fact, argued that the act is unconstitutional because it seeks to require charter cities to comply). The city also argued that it is entitled to “a presumption of correctness and all conflicts in evidence are to be resolved in favor of the city.” The city also referred to the Huntington Beach zoning code and the state Government Code Section 66474, both of which say that a project cannot be approved if findings cannot be made.
In her ruling on August 4, Orange County Superior Court Judge Deborah Servino did not bit on the charter city argument – she ruled that the HAA is constitutional – but she gave considerable deference to the city and especially to its experts. “The findings identified the applicable provisions of the Fire Department access standards and specifications, goals, and policies of the General Plan and Beach and Edison Corridors specific Plan to which the project was inconcistent, not in compliance, or not in conformity. These findings were based upon the reports of the Traffic Expert Mark Miller and Fire Code/Life Safety Expert James McMullen. As a result, the project did not qualify for HAA protections. [The city] proceeded as required by law. Its decision was supposed by its findings. Substantial evidence supported [the city’s] findings, as the evidence was reasonable in nature, credible, and adequate to support the conclusions.”
This case is almost certainly going up to the appellate court and could result in a significant appellate ruling about the HAA. Will the fire standard be enough to withstand the attack by the developer and CaRLA? Or will an appellate court conclude that the fire expert’s report is a post-hoc rationalization designed to get around the requirement that the city has to provide the developer with violations of objective standards within 30 days? Whichever way it goes, the Huntington Beach case should go a long toward clarifying the reach of the Housing Accountability Act.