A Victory for Housing, One Project at a Time

Save Lafayette v. City of Lafayette
(2022) (Case No. A164394)

As an early Christmas present to the state’s residents in need of housing, the recent First District California Court of Appeal’s decision in Save Lafayette v. City of Lafayette (A164394) upheld a 315-unit apartment project against CEQA and General Plan consistency challenges. The published portion of the decision confirms that a project subject to the Housing Accountability Act (HAA) is properly analyzed for consistency with the agency’s general plan and zoning standards in effect at the time the project application is deemed complete, even if the general plan or zoning is subsequently updated prior to approval. The opinion brings welcome certainty to housing developers and local agencies alike in an era where housing projects can often take years to process from application to approval.

Factual Background

O’Brien Land Company, LLC’s application to develop a 315-unit apartment project on 22 acres was deemed complete by the City of Lafayette on July 5, 2011. At that time, the City’s General Plan and zoning regulations for the project site allowed multi-family developments with a land use permit. In 2013, the City certified an environmental impact report (EIR) for the project.

Subsequently, the applicant and the City entered into an agreement to explore an alternative, lower-density project for 44 or 45 single-family, detached homes on the site, suspending the apartment project pending the City’s consideration of the alternative project. In August 2015, the City certified a supplemental EIR for the alternative project; approved a General Plan Amendment changing the land use designation for the site from 35 units per acre to 2 units per acre; and, by ordinance, rezoned the site for single-family residential use (R-20).

The 2015 zoning ordinance, however, did not survive a 2018 referendum. Further, a month after the referendum, the City adopted a new ordinance zoning the site Single-family Residential District-65, which provided for single-family housing on lot sizes three times larger than the rejected ordinance required.

The applicant responded by withdrawing its application for the alternative project and requested that the City resume processing of the original apartment project with a few modifications (resumed project). The City determined no supplemental EIR was needed for the resumed project and proceeded to certify an addendum under CEQA. Acknowledging the HAA preempted conflicting City requirements, the City approved the resumed project in August 2020. The City found that the project qualified as a housing development project for very low, low-, or moderate-income households under the HAA and, as a result, was exempt from certain findings the City normally required for the necessary permits.

Save Lafayette challenged the City’s approval of the resumed project, claiming analysis of certain impacts was necessary and a supplemental EIR was required. Save Lafayette also alleged that the resumed project was inconsistent with the City’s current General Plan and zoning requirements. The trial court denied the writ of mandate. The Court of Appeal affirmed.

Disposing of the General Plan and Zoning Consistency Claims
Through Application of the Housing Accountability Act

Save Lafayette argued that the resumed project was inconsistent with the current land use designation and zoning of the site as it was amended in 2018, and that the City erroneously analyzed project consistency with the prior 2011 standards. The court disagreed. Under the HAA, a local agency may not disapprove (or approve in a manner that renders infeasible) a housing development project for very low-, low-, or moderate-income households unless it finds that the project is inconsistent with the zoning ordinance and the general plan land use designation existing at the time the application was deemed complete. The court explained: “O’Brien got a complete project application on file in 2011, and the HAA requires that such a project be assessed against 2011 general plan and zoning standards.”

Save Lafayette argued that the Permit Streamlining Act’s (PSA) time limits deprived the City of the power to act on the application, such that the application must be treated as if it had been resubmitted when the applicant asked the City in 2018 to resume its processing. The court again disagreed. First, Save Lafayette’s interpretation would mean the application was deemed disapproved by operation of law when the City failed to act on it within 180 or 270 days. But the PSA provides the opposite: if an agency fails to timely act, a project is deemed approved. Second, silence in the PSA did not support Save Lafayette’s argument that the application should be deemed withdrawn, disapproved, or resubmitted at a later date if the applicant fails to perfect its “deemed approval” under the statute by providing notice.

Third, Save Lafayette’s argument that the resumed project should be considered a resubmittal was unavailing. Under the PSA, “resubmittal of the application” specifically refers to a resubmittal in response to a notice that an application is incomplete, after which the agency has an additional 30 days to assess the application’s completeness. That was not what occurred; the application was deemed complete in 2011. Fourth, the court explained that if the 2011 application were allowed to be “deemed disapproved,” the argument would conflict with the PSA’s explicit finding requirements for disapproval.

Lastly, the court noted that the PSA should be interpreted in conjunction with the HAA, the purpose of which is to “aggressively confront” the housing crisis and “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.” These considerations weighed in favor of applying the general plan and zoning designations from 2011, rather than from a later date “after the City had twice down-zoned the project site to allow for much less housing development.”

Unpublished CEQA Holdings Resolved in the City’s Favor

In the unpublished part of the decision, the court analyzed, and rejected, Save Lafayette’s CEQA claims. Notable amongst the court’s analysis was its rejection of Save Lafayette’s wildfire and evacuation claims related to developing this housing in a very high fire hazard severity zone (VHFHSZ).

The court initially addressed procedural arguments. First, it declined Save Lafayette’s request to “construe the time limitations in the PSA as creating an implied requirement under CEQA that a project may not be approved when its EIR is more than 270 days old.” Second, the court rejected the argument that the substantial evidence standard of review was inapplicable to the City’s decision to prepare an addendum. That the City did not approve the project when it certified the original EIR was irrelevant to whether a supplemental EIR (SEIR) was or was not needed under CEQA Guidelines section 15162.

On Save Lafayette’s challenge to special-species impact analysis, the court concluded that the EIR adequately provided for mitigation even though its analysis determined no such species were present. Save Lafayette’s biologist’s observations of some special-species on site in 2020 did not qualify as new information that would require an SEIR.

Addressing wildfire and evacuation, the court rejected Save Lafayette’s argument that changed circumstances or new information regarding wildfire impacts required preparation of an SEIR. First, redesignation of the site as a VHFHSZ was not new: the City adopted a resolution redesignating the project site VHFHSZ before the EIR was certified – not after, as Save Lafayette argued. Second, Save Lafayette grossly oversimplified and misread the EIR’s wildfire risk analysis, which concluded impacts would be less than significant based on a number of factors, not the “simple lack of a VHFHSZ designation.”

Third, the court found that the EIR’s failure to indicate the site’s re-designation to a VHFHSZ did not render the project description inadequate. The EIR accurately described the physical conditions in the vicinity of the project, including describing the area as a high-risk zone. The EIR also explained how the risk would be reduced and emergency response and evacuations would not be impaired. The court was “not persuaded that the EIR failed as an informational document because it did not include a quantitative analysis of evacuation times, or because it did not reach the same conclusions as Dr. Zhang” or Dr. Cova, Save Lafayette’s traffic and evacuation consultants. Substantial evidence — including a report by the EIR and addendum preparer that concluded evacuation times would improve with project-added roadway capacity — supported the City’s finding that the EIR’s emergency response and evacuation discussion was adequate and no SEIR was needed.

Tree removal was Save Lafayette’s final argument as to why an SEIR should have been prepared. The court agreed with the City’s determination that the resumed project’s removal of just 10 more trees than was contemplated under the original project, which was mitigated by replanting 68 more replacement trees than the original project, did not give rise to the conditions necessitating an SEIR.

In summary, the Save Lafayette decision is part of a continuing line of cases upholding the intention and integrity of the HAA and affirming that pathways for constructing needed housing do exist.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]