YIMBY Law Amicus Briefs
Amicus comes from the latin phrase, amicus curiae, or “friend of the court.” Amicus curiae are people who aren’t a party to a case. By filing an amicus brief, these “friends of the court” can offer additional, arguments, specialized knowledge, perspective, or relevant information the court may want to consider before making their ruling.
GEORGE SHEETZ v. COUNTY OF EL DORADO
Original petition (filed 5/2/2023) | YIMBY Law, California YIMBY, and CalHDF Amicus Brief (filed 11/20/2023)
Sheetz v. County of El Dorado asks the Court to clarify that its “unconstitutional conditions doctrine”—as developed in Nollan v. California Coastal Commission (1987), Dolan v. City of Tigard (1994), and Koontz v. St. Johns River Water Management District (2013)—applies to so-called “impact fees” that local governments often tag onto building permits. In this instance, for example, the County charged $23,420 for a landowner to build a home for his family. If the Court rules for the landowner, the County will be required to prove that the $23,420 is “roughly proportional” to the traffic impacts that the fee is intended to offset.
Many impact fees exacerbate the housing shortage by making it more difficult and expensive to build. The amicus brief filed by CalHDF, California YIMBY, and YIMBY Law, illustrates the housing-crisis connection for the Court, citing numerous cases where local governments have made housing needlessly expensive by imposing fees without any plan to use the revenue. The housing organizations argue that “rough proportionality” requires governments not to impose fees that they would collect again later in the form of increased tax revenue, as is often triggered by new housing construction in California due to Proposition 13.
NORTHGATE GONZALEZ, LLC v. REALM REAL ESTATE, LLC
Trial Court Decision (filed 10/22/2021) | CaRLA/YIMBY Law Amicus Brief (filed 10/10/2022)
Respondents’ Reply to Amicus (filed 10/26/2022)
We joined the California Renters’ Legal Advocacy and Education Fund in support of a 450-home project in the City of Riverside. The city has cleared the project, and is even counting on it in its housing element. But a neighboring grocery store convinced the local superior court to block the project, based on a 1979 easement over one corner of the project site.
Easements are a type of private property restriction. The easement in this case gives the grocery store “ingress and egress” rights over a small strip of road so that delivery trucks can drive across the project site and get to the back of the neighboring store. Grocery stores and apartment complexes work these things out all the time, and we don’t see that the project developer in Riverside is planning to block the store’s access. Instead, the grocery store persuaded the trial court that the easement prohibits any apartments anywhere on the site. The project developer has appealed.
We and CaRLA weighed in to remind the Court of Appeals that there’s a strong public interest in getting homes built, and that the trial court’s injunction blocking 450 homes harms the public interest. What’s more, caselaw warns against interpreting “nonexclusive” easements (which this easement is) to prohibit entire land uses (as the trial court’s injunction does). But that’s effectively what the trial court did in Riverside, and we hope it gets reversed so Riverside can gain 450 new neighbors.
Many easements are useful: they help reconcile private property with public infrastructure, among other things. But as this case shows, easements can also be turned into anti-housing zombies. That’s not what easements are supposed to do, and we’re watching this case so that California doesn’t suffer an outbreak of zombie easements.
Snowball West Investments LP vs City of Los Angeles
Trial Court Documents | Trial Court Decision ( filed 6/24/2021) | Petitioner’s Appeals Court Opening Brief (filed 4/8/2022) | City’s Appeals Court Opening Brief (filed 7/28/2022) | YIMBY Law Amicus Brief (filed 8/31/2022)
Similar to our victorious case in Los Angeles, Snowball is another example where the City of Los Angeles has killed a housing project that they were legally required to approve under the Housing Accountability Act (HAA).
In this case, the developers, Snowball West Investments, planned to develop 28 acres of the former Verdugo Hills Golf Course, into a 215-unit, single family home subdivision housing project, in an area of the city where the general plan allows up to 244 homes, but the zoning allows just 19 single family homes for the property. The city actually approved many of the entitlements for the 215-unit project, pending a zoning change to bring the zoning into consistency with the general plan, but the city council member for the project’s district was opposed to the project, and at the final approval hearing before the city council for the zoning change, because the council member was opposed, the city denied the zoning change, killing the project.
Los Angeles has, for decades, kept areas of the city with zoning that allows housing at densities lower than what is allowed in the city’s general plan. Whether this is merely incompetence or purposeful, corrupt malice we can’t say for sure, but what is clear is that this inconsistency has allowed the city to require developers to pay large fees for zoning changes, and the discretionary nature of zoning change approvals means that the city council’s decisions to approve housing projects can be influenced by politics.
For over 30 years, the Housing Accountability Act had a loophole that allowed cities like Los Angeles to use the inconsistency between zoning and general plans to get away with denying a project on the basis that it was inconsistent with the zoning, even if it was consistent with the general plan. Thankfully, because of the severe housing crisis, the California legislature significantly strengthened the Housing Accountability Act in the late 2010’s. Most relevantly, In 2018 AB 3194 was passed to close the loophole in the HAA caused by inconsistencies between the general plan and the zoning. In introducing the bill, the author wrote, “This bill would prohibit a housing development project from being found inconsistent, not in compliance, or not in conformity, with the applicable zoning ordinance, and would prohibit a local government from requiring a rezoning of the project site, if the existing zoning ordinance does not allow the maximum residential use, density, and intensity allocable on the site by the land use or housing element of the general plan.” This seems like pretty clear intent, right? The actual language that was added, into the HAA, section j(4), says,
(4) For purposes of this section, a proposed housing development project is not inconsistent with the applicable zoning standards and criteria, and shall not require a rezoning, if the housing development project is consistent with the objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan. If the local agency has complied with paragraph (2), the local agency may require the proposed housing development project to comply with the objective standards and criteria of the zoning which is consistent with the general plan, however, the standards and criteria shall be applied to facilitate and accommodate development at the density allowed on the site by the general plan and proposed by the proposed housing development project.
The “paragraph (2)” quoted in section j(4) says,
“(A) If the local agency considers a proposed housing development project to be inconsistent, not in compliance, or not in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision as specified in this subdivision, it shall provide the applicant with written documentation identifying the provision or provisions, and an explanation of the reason or reasons it considers the housing development to be inconsistent, not in compliance, or not in conformity” within a certain amount of time depending on the size of project, and “(B) If the local agency fails to provide the required documentation pursuant to subparagraph (A), the housing development project shall be deemed consistent, compliant, and in conformity with the applicable plan, program, policy, ordinance, standard, requirement, or other similar provision.”
In this case, it seems obvious that the City of Los Angeles improperly required a rezoning for the Snowball project, because the city itself determined that the zoning and general plan were inconsistent: the 215-unit project was deemed consistent with the general plan by the City, but the city still required a rezoning to allow more than 19 units to be built, since the existing zoning does not allow the density allowed in the general plan for the site. We believe what the city of Los Angeles did in disallowing the Snowball project is a clear violation of the law.
The City’s argument is that they did not violate the law because the zoning for the site IS consistent with the general plan. In fact, they subscribe to a “hierarchy of uses” theory to claim ALL zoning codes which are less intensive uses than allowed by the general plan are consistent with the general plan. In other words, the city is effectively arguing that the Snowball project is consistent with the general plan regardless of whether it is 19 or 215 units, but because the zoning is consistent with the general plan and only allows 19 units, section j(4) of the HAA doesn’t apply, because there is no inconsistency between the zoning and general plan, the city does not have to approve the zoning change, and the Housing Accountability Act does not apply to the project. This is not how the law works.
We disagree with the city’s “hierarchy of uses” theory, but we also are confident that it doesn’t matter. We successfully argued in AJ’s case, that even if the city believes the zoning and general plan are consistent, that the HAA requires the city to approve projects allowed under the maximum density of the general plan, regardless of the zoning.
Los Angeles is a huge city of over 500 square miles. Many of the lots, like AJ’s and the Snowball properties, are on sites where the zoning is inconsistent with the general plan, or at least does not allow the full density for development contemplated in the general plan. If the arguments we made in AJ’s case are also successful in Snowball at the Court of Appeals, this decision will effectively be an upzoning for wide swaths of Los Angeles, and will be important case law for cities across the state, who must approve projects which are consistent with the general plan density, regardless of what the zoning allows.
SANDAG vs Solana Beach, Imperial Beach, Coronado and Lemon Grove
Trial Court Petition | Demurrer | YIMBY Law Amicus Brief (filed 2/11/2022) | Appellants Answer to Our Brief (filed 3/18/2022)
June 20, 2022 - UPDATE: Complete win. The 4th District Court of Appeals sided with us, and SANDAG and against the cities, confirming that SANDAG’s RHNA allocations are valid.
The San Diego Association of Governments (SANDAG) distributed its allocation of Regional Housing Needs Assessment units to the many localities it represents in January of 2020. The distribution relied on many factors but in particular it prioritized assigning units to cities with lots of jobs and lots of transit. Four cities within SANDAG, Solana Beach, Imperial Beach, Coronado and Lemon Grove, took issue with the allocations they received, believing them to be too high. These cities all appealed their allocations unsuccessfully and therefore decided to file a lawsuit together against SANDAG.
The primary points of contention between the cities and SANDAG are the methodology of the allocation and the procedure followed for finalizing the allocation. The cities claim that the methodology was flawed and put too much weight on jobs and transit without taking into account other factors. They also believed that SANDAG should not have been able to use a weighted system to approve the final plan.
On both of these issues we believe that the cities are very wrong. Allocating units based on the number of jobs in a city and the available transit makes sense and is well within the rights of SANDAG. Similarly though the weighted approval system allowed a minority of cities in the region to approve the plan, those cities represent the vast majority of the residents of the region. There is no conceivable reason why a tiny city of ten thousand people should have the voting impact as San Diego, a city of 1.4 Million people.
So far things have gone well. SANDAG prevailed over the quartet of cities in court. The cities decided to appeal the lower court’s ruling, and the case is now moving forward in the court of appeals. We at YIMBY Law filed an amicus brief in this lawsuit to lend our support to SANDAG. Our hope is that by doing so we can make their case stronger and ensure a favorable outcome. You can find our brief, as well as a rather unusual “answer” filing to respond to our brief from the appellant cities, at the links on the top of this article.