YIMBY Law's Lawsuit against Simi Valley Proceeds to Trial

Update: The trial has been rescheduled and will now take place on May 4th at 8:30 am. Updates on how to tune in and live results can be found on our twitter page.

This week, on Thursday April 15th, Yimby Law’s Housing Accountability Act lawsuit against the city of Simi Valley will have its first real hearing. The case is important as it involves fundamental questions about the HAA and what types of projects it can be used to protect. The project in question in this case is a senior living community. On Thursday we will find out whether the judge sides with the city in their narrow view of projects included under the HAA’s purview or whether the judge will side with us in our broad, comprehensive, and common sense view of which types of projects are protected by the Act.

The project at the center of all of this is a senior living community proposed on the edge of a residential neighborhood dominated by single family homes in the city of Simi Valley. Located north of Los Angeles, Simi Valley is a medium sized city that has struggled to meet housing production goals, as have many in the region. The city has not met it’s 5th cycle RHNA goals for low and very low income housing units and it is too soon to know whether it will fare any better in the 6th cycle. Additionally, Simi Valley is an aging city with a growing senior population that needs specialized housing options. In fact, the city’s most recent general plan specifically calls for facilitating more construction of senior housing and care facilities.

With all of this in mind the proposed project seems like a perfect fit for Simi Valley. The proposed development at Cochrane and Welcome Court, just off highway 118, would include 68 assisted living units and 40 memory care units. The proposed size, density, and massing of the project all fall within the restrictions set by both the city’s zoning ordinance and general plan. The developer diligently worked with city planning staff for 16 months to ensure that the project didn’t just meet, but exceeded their expectations.

However, once the project reached public hearings in front of the Planning Commission it became obvious that there was significant opposition to the project from neighbors. The concerns cited were overwhelmingly issues of aesthetic preference and neighborhood character with no grounding in the zoning ordinance or general plan. The Planning Commission caved to public pressure and denied the conditional use permit necessary for the project to move forward. The developer appealed this decision and the same process and outcome repeated itself at the City Council, with neighbor opposition leading to City Council affirmation of the Planning Commission’s decision.

In the findings provided with the resolutions denying the conditional use permit both the Planning Commission and City Council relied entirely on subjective concerns over aesthetics and neighborhood character. None of these findings are sufficient to warrant a denial of a housing project under state law. An additional finding, predicated on the idea that the project would pose a danger in the case of a wildfire as residents would flee to the facility, is absurd enough that there is little need to elaborate on it. Suffice to say, these concerns do not constitute “a specific adverse impact upon the public health or safety” as state law requires for findings in the case of a denial of housing.

The crux of the city’s argument does not rely on the woefully inadequate findings made by the City Council and Planning Commission. Instead the city argues that the proposed project is not protected at all under the Housing Accountability Act because the proposed units do not contain kitchens and therefore cannot be considered “residential units.” The HAA does not define what it means by “residential units” exactly and there is some legitimate ambiguity here. However, the idea that the broad definition of residential use contained within the HAA somehow precludes senior assisted living units is ridiculous.

Additionally, definitions elsewhere in state code and within Simi Valley’s local code support our assertion that senior assisted living units count as residential for the purposes of the HAA. There is no reason to believe that this project should be treated differently from other housing projects simply because of a difference in amenities, linked to safety. Lastly, the HAA itself states that it should be construed broadly and “consistent with, and in promotion of, the statewide goal of a sufficient supply of decent housing to meet the needs of all Californians.” (Gov’t Code § 65589(d).)

We feel our case is very strong and we believe strongly in the principle behind it. Cities should not be able to wriggle out of their obligations under state law with opaque and incorrect interpretations of state law. Lots of effort and hard work has gone into formulating laws over the last decade to improve the legal environment for housing in California. If cities can ignore or bypass these laws all that effort goes to waste and cities can act with impunity. It is our job to enforce state law in cases like these to protect the legal gains we’ve made in the housing space and to ensure that further gains are possible.

Dorms, SROs and other types of group housing do count towards cities’ Regional Housing Needs Allocations

There seems to be significant confusion regarding how HCD treats separate living quarters that do not have a kitchen for the purpose of the Housing Element process and in particular, for the purpose of fulfilling the RHNA. This type of housing is also known as Single Room Occupancy, or SRO housing, group housing, dorms, assisted living and is also known by other names. 

All of these arrangements share common characteristics. The tenant rents a room that is intended for occupancy as a separate living quarters. Usually they have a lock on the door, for instance, indicating that their private space encompasses that room, but not the hall outside the room. The tenant may or may not have their own bathroom facilities and may or may not have access to a shared kitchen or cafeteria. Each tenant has their own lease with the owner of the building or the facility, and the tenant considers this unit to be their usual place of residence.

SROs do not include hotels or hospitals because the inhabitants of these institutions intend to stay a short time, and have a usual residence elsewhere. 

Housing Element law and the guidance materials of CA Department of Housing and Community Development confirm that separate living quarters that do not have a kitchen ARE counted as housing units for the purpose of the Housing Element and RHNA. 

The Government Code sections governing the Housing Elements process, Article 10.6. Housing Elements [65580 - 65589.11], don’t contain an explicit definition of “housing unit”, however, in sections 65583(c)(1) and 65583.2(c), both dealing with the sections of the housing element that demonstrate the city’s ability to accommodate its RHNA, the following language is used: 

“a variety of types of housing, including multifamily rental housing, factory-built housing, mobile homes, housing for agricultural employees, supportive housing, single-room occupancy units, emergency shelters, and transitional housing.”

This list includes “single-room occupancy units”, indicating that single room occupancy units are units for the purpose of fulfilling RHNA goals. 

HCD’s guidance on what constitutes a housing unit for the purpose of the RHNA references the Census definition of housing, and mostly concurs with the definition in state law:

Do Single-Resident Occupancy (SRO) units count toward RHNA progress? 

SRO units can be counted if the units are operated as separate living quarters, and occupied or will be occupied by persons who consider the unit their usual place of residence, rather than temporary motels. 

Can I count dorms in a college town? 

Dormitories, bunkhouses, and barracks cannot be counted as housing units, but student housing that is set up as separate living quarters per the census definition can be counted.

Can I count senior housing? 

Beds or quarters in an institution or hospital do not count, but separate living quarters per the census definition. For example, senior housing with individual units that would allow for eating and living separately for the broader community could count.

(Source: Department of Housing and Community Development Housing Element Annual Progress Report Frequently Asked Questions (FAQs)) 

HCD’s guidance on “Dormitories” causes some confusion. In context they seem to be describing a big room with multiple beds, in other words, a barrack. However, no US College houses students this way. Instead, college dorms are a type of SRO: a US College dorm is a building with a number of separate living quarters, with a shared kitchen or cafeteria. 

Dorms, retirement homes, residential hotels, sober living, long term drug rehab, board and care facilities, are all types of housing where tenants can have separate living quarters without a kitchen and usually also have access to a shared kitchen, in other words, SROs. These are also types of housing that California cities need more of. These are all long term living situations. Residents of this kind of housing can expect to spend at least one year and at most the rest of their lives living there. 

YIMBY Law looks forward to working with localities in their efforts to meet their RHNA and to craft and pass housing elements that are certified by HCD. We are also interested in promoting zoning for and constructing diverse types of housing, including separate living quarters without a kitchen as described here. Please get in touch with us if we can be of assistance.

For a google drive version of this post, click here. You can download a pdf version from the drive. Please feel free to email a pdf to a planner or decision maker in your local government, or ask us to by emailing sonja@yimbylaw.org

What kinds of emotional distress are public problems?

The practice of zoning today has become extravagant and baroque. Far beyond the already abhorrent goals of “protecting” higher income people from having to interact with residents of apartments, (see previous post) local governments also respond - at significant expense - to the anxieties and agonies of single family homeowners, for whom banning apartments is insufficient, when they become distressed by the prospect of single family homes that look like apartments. 

Culver City, for example, recently completed a nearly 3 year process of rezoning their single family neighborhoods. Fortunately, by the time they passed the zoning ordinance reducing the maximum allowed size of houses (FAR) and prohibiting more than one kitchen per unit, this kind of downzoning had become illegal, and YIMBY Law filed suit to stop it. The excerpts below are from a public records request we did as part of our lawsuit. You can view all of the records here. 

On Oct 17, 2019, at 10:52 AM,
Amy Levit wrote:

Could we maybe put a moratorium on new builds until the new codes can be put in place. Some of the new builds are so outrageous...take a look at 4301 Mentone Ave for example...almost 5,000 square feet...looks more like an apartment building than a home!

Thank you!
Amy Levit

Notes from a community meeting held on 09.18.2018:

[Resident] concerns included … Change of neighborhood character from single-family residential to multi-family residential when homes of similar style and materials (sometimes built by the same developer) are built to the maximum floor area ratio (FAR) and zoning envelope and are adjacent to one another.

From: Greg Cahill 
Date: Monday, May 25, 2020 at 3:16 PM

Dear City Council members:

... My wife and I and our two daughters moved here thirty years ago and now I fear the small town ambience we moved to Culver City to enjoy is being irretrievably eroded before our eyes.

From: Michael Monagan 
Thursday, April 18, 2019 7:10 PM

Hi William,

I’m Michael Monagan and I have lived on Fay Ave in the Arts District for 17 years. We have suffered and are suffering from overbuilt homes in our neighborhood.

Notes from a community meeting held on 09.18.2018: 

The continued construction of similar houses that maximize the FAR and “flipped” is upsetting for residents. “I live in fear that my neighbors are going to sell and a developer will come in and build a huge inappropriate house. The flippers are ruining the neighborhood.”

Local officials receive distressed pleas from all kinds of “suffering” and “fearful” residents. In addition, all of us suffer and are fearful at one time or another. The question is, what kinds of emotional distress are really public problems, and which are best solved privately? 

The answer to this question has changed over time, and also, in our time, depends on who is making the plea. Existing and historical land use patterns demonstrate unequivocally that when low income and non-white people express suffering and fear over nuisance land uses - even when those land uses are true nuisances, that cause asthma or release poison into the air or water - local governments ignore them. 

However, as in the Case of Culver city, when high income and white people express their land use related fears - even those land use fears that are totally subjective, and have absolutely no health related impacts - local governments mobilize significant staff time and resources to soothe their anxieties and accommodate their tastes. 

In 2017, Culver City hired John Kaliski Architects to helm a multi-year public process to develop new zoning standards to respond to the distress demonstrated by some Culver City homeowners. As part of this process, the city hosted ten meetings, each one 1.5 hours, where homeowners looked at photographs of houses, and indicated whether they thought the houses were pretty or ugly. Here is a sample description of one of the meetings:

A sixty-minute survey exercise was conducted with the group as a whole. The survey exercise consisted of twenty site photographs of Park West. The group voted with red and green cards to indicate their “like” or “dislike” of  each photograph. A second ten-minute community comment exercise followed which gave participants the opportunity to share their interests/concerns and to describe what works and doesn’t work in their neighborhood. (Pg 151, PRA Request Response)

Here are images from the meetings:

Presentation by JKA, PRA Request Response pg 123

Community meeting in Culver Crest, Culver City JKA blog

Below is a table summarizing the number of city staff at each meeting, the number of consultant staff and the number of participating members of the public:

The city staff and consultants are planners, most of them with advanced degrees. There is an average of 2 members of the public to each city consultant or staff member. The total number of attendees across the 10 meetings is 136, but the consultants reported 99 participants, which means 37 people came to 2 meetings, or a smaller number of people attended more than 2 meetings. Just in these in person meetings, a total of 94.5 professional staff hours were spent serving the emotional needs of 99 homeowners in Culver City. According to a scope of services memo submitted by KSA for a related project, their staff’s hourly rates are between $100 and $205. City staff time probably cost slightly less. 

According to a Professional Services Agreement with KSA executed in 2017, the consultant alone - not counting city staff time - cost up to $342,440. In addition to the 99 people who participated in person, another 239 residents answered an online survey. Culver City’s population is 39,437 which means every man, woman and child in Culver City paid at least $10 so that the local government could survey 338 residents to discover what kind of house they think looks cute, and what house looks ugly, and then craft new zoning reflecting those preferences. 

What an incredible level of service for those residents! What a solicitous local government. How lovely it is for this local government to carefully protect these residents from suffering from ugly houses. 

Culver City is our example city, but this practice is far from rare, in fact, every city runs programs like this for their low density, mostly white, single family residential neighborhoods. Culver City’s program, unfortunately, is extremely typical. 

 As we have seen in Culver City, even when residents expect houses to be single family and owner occupied, they believe that the “suffering” they feel due to homes merely looking like small apartment buildings entitles them to relief. How much more will their anxieties be when actual small apartment buildings begin to be built? If we are going to succeed in densifying low density neighborhoods, we cannot continue to treat these anxieties as a public problem.

Another reason to oppose the kinds of exercises described here, is that they are inequitably  provided. Anxieties about one’s changing neighborhood are universal, they are not more or less prevalent in any population. Nostalgia is something that all humans experience and share. However, we see that when white homeowners express these anxieties, planning departments rush to dry their tears, whereas when renters and non-white homeowners bring the same kinds of concerns to their local governments, the response is sluggish or absent. Local governments should treat all land use concerns equally - when there is a true life/ safety danger, they should respond quickly. When the issue is nostalgia, all populations should be on the same footing. 

Our budgets, as the saying goes, are our values. Why should Culver City spend at least $342,440 on a project that serves 338 residents who own their homes? Not only is it a very small number of people for the price, this population is not needy or in distress. There are about 1000 households under the poverty line in Culver City, what could $342,400 have done for them?

Zoning & Policing

Zoning is a police power. What does that mean? It means separate but related things. Mainly, the legal theory that allows the police to pull you over when you are speeding also legitimizes and justifies your local government’s ability to do everything from prohibiting apartment buildings in single family zones, to passing laws regulating specific aesthetic features of buildings. This is the same “police power” that undergirds all of our governments’ regulations that protect any aspect of public health and safety. Many of these police powers are good things, like ensuring toxic chemicals stay out of our food. 

In addition, political leaders, judges and other elites believe that using zoning to separate apartment housing and businesses in certain neighborhoods away from low density, single family housing is a policy that makes the job of the police force easier. In this sense, zoning as a police power is nested within the role of the police officer to promote “public safety” specifically by regulating who is allowed to be where. 

The connection between zoning and police powers begins over 100 years ago, in 1926 the Supreme Court of Louisiana, in State v. City of New Orleans, pp. 282-283, said:

... the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen's beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate, and the places of such congregations need police protection. (emphasis added)

One might think that apartment buildings are residences, because people live there, and therefore would be included as permitted uses in “residence districts” but one would be wrong.  Later that same year, the US Supreme court weighed in on whether cities had the power to pass zoning ordinances that prevented business uses in residential districts, and specified that apartments are not a residential use.

The serious question in the case arises over the provisions of the [zoning] ordinance [that] exclud[e] apartment houses, business houses, retail stores and shops, and other like establishments [from residential districts]. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded. (emphasis added)  Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)

The court goes on to explain why apartment houses in particular are not only not residential uses, but are active nuisances to so called “residential” districts. 

With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that, in such sections, very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities -- until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)

Implicit in the State v. City of New Orleans opinion is the principle that effective law enforcement is equivalent to a generalized suspicion of strangers, and therefore the practice of law enforcement is the effort to keep different kinds of people separated from each other. In this case, the police power is concerned with keeping the kinds of people who live in apartments out of neighborhoods inhabited by the kinds of people who live in houses. It goes without saying that since apartments are cheaper than houses, what we are talking about here is virulent classism and racism. 

By 1926 the principle was firmly established that prohibiting businesses and apartment buildings in single family areas was reasonable and desirable because it facilitated the ability of police officers to ensure that higher income people would not come into unwanted contact with lower income people. Prohibiting apartments and stores in single family zones also removed any legitimate reason for a lower income person to walk around an expensive neighborhood, making the police officer’s job very easy. Any unfamiliar individual in a high income neighborhood could be assumed to be a criminal, because the legitimate reasons for their presence had been outlawed and eliminated. 

As the decades passed, the police power of zoning only expanded. The foregoing conversation explains the counterintuitive fact that apartment buildings are separated from single family zones, even though they are both residential uses, but it doesn’t explain why zoning is so intensely concerned with aesthetic issues. Even within single family neighborhoods, the police power allows cities to regulate to minute detail exactly what single family homes are permitted, and what aren’t.

In 1954 Berman v. Parker expanded the police powers to include aesthetics, in addition to “public health, safety and welfare”: 

The legal basis for all land use regulation is the police power of the city to protect the public health, safety, and welfare of its residents. ... The concept of the public welfare is broad and inclusive... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” (emphasis added)

In this quote Justice Douglas again ties land use regulation to the work of police. Just as police “carefully patrol” a neighborhood, so too can the legislature make land use regulations that ensure that a community is “well balanced.” What is meant here by “well balanced” is not clear. The term “Balance” in relation to communities was used in England in the 1950s as a synonym for “integrated”, it also sometimes meant “harmonious”. The fact that Justice Douglas puts “well balanced” in a pair with “carefully patrolled” implies that his notion of “well balanced” is related to the patrol. Whatever he had in mind as constituting a well balanced neighborhood, clearly, there is some element that, if present, would throw the community out of balance. He is reiterating the existing standard that regulating the demographic “balance” of communities via land use is a valid use of police power. 

Twenty years later, in Village of Belle Terre v. Boraas (1974) Justice Douglas continues on the same theme, “A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs. . . The police power is not confined to elimination of filth, stench, and unhealthy places; it Is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”

What this means is that local governments have the authority to enforce vague concepts like “family values” and “youth values” and other “aesthetic” and “spiritual” values, and of course, when certain populations ask them to, they do. 

The Teeth! Consequences of Housing Element non-compliance

Cities are reeling from their new, higher housing allocations. Some cities are saying that they can’t possibly zone for their new allocation. [For potentially over 100 cities that have voter passed growth controls, they may be right, more on that in a future post].

What are the consequences for a city that is unable to pass a housing element, or unable to get HCD to certify their housing element? CLICK HERE TO FIND OUT and share this easy to understand reference with whoever you think needs to see it.

The most well known, and immediate consequence is that the city will no longer qualify for several state and even federal grant programs. This consequence is immediate. No lawsuit necessary. By not being certified they are automatically disqualified, or else they may lose points on their applications for funding.

The least well known consequence, but most exciting for YIMBYs, is that (per the HAA) if a city does not have a certified housing element, the city has to approve ANY proposed housing development that includes 20% low income units, irrespective of the zoning or general plan designation (the tenant protecting demolition controls in Section 66300(d) still apply). You read that right, yes, it is exactly as epic as it sounds.

Watch this space for our next blog post, which will list and discuss the 100 or so cities that are going to have the hardest time passing a certified housing element, and few dozen cities that currently don’t have a certified housing element.

Happy Purim! Happy Lunar New Year!
Have a great weekend.

Links to relevant resources:
California Code, Government Code - GOV § 65755
2015 Memo prepared for Los Gatos’ Housing Element Advisory Board on the consequences of non-compliance
2013 list of Housing Element Litigation results prepared for Menlo Park by Goldfarb & Lipman

18 month vacation from variances, for certain projects in San Francisco.

On January 22nd, Supervisor Peskin introduced and passed an emergency zoning ordinance that would exempt proposed residential developments that meet certain conditions from variances and height limits. This emergency ordinance lasts 18 months. The zoning change applies in the RC, RM and RTO districts, excluding RTO-M (lots that have form based zoning). Here is a map that shows what lots are affected: 

(Map Credit, Robert Fruchtman: https://twitter.com/_fruchtose/status/1347632079777849345/photo/1)

Under the new rule, any project in these districts that doesn’t maximize density has to have a Conditional Use Permit. In addition, any project that doesn’t tear down existing housing, maximizes density and whose units are each less than 2000 sq ft that would ordinarily need a variance to achieve the maximum density, now no longer requires a variance. 

Bypassing variances will allow project sponsors to build larger apartment buildings on smaller lots, cover more of the lot, build to the edge of the lot, avoiding commonly required setbacks. It will exempt them from providing private open space and give greater flexibility in choosing what areas apartment windows will look out onto. In short, all of the subjective and aesthetic regulations about building size and location on a lot will be stripped out, leaving only the regulations that protect health and safety. 

In addition, based on the text of the law, if a height limit increase would ordinarily be needed to accomodate the maximum density, the proposed project would also automatically get the necessary height increase. 

“FURTHER RESOLVED, That if existing lot conditions or form-based restrictions on development (e.g., height, bulk, rear yard requirements) are such that a proposed project cannot maximize density without seeking a variance or subdividing existing units on the lot, and while adhering to the minimum unit size requirements set forth in Planning Code, Section 206.3, Conditional Use Authorization under Planning Code, Section 303 shall not be required if a proposed project increases density on a subject lot, does not include any single unit greater than 2000 square feet in size, and would not be subject to Conditional Use Authorization under any other provision of the Planning Code;”

https://sfgov.legistar.com/View.ashx?M=F&ID=9053989&GUID=3ACFE8AA-FE29-4F76-B542-708B413B061A

This zoning change didn't go through the ordinary process. It wasn't heard before the planning commission, there was no staff report written by the planning department. It had one hearing at the BoS land use committee and then went straight to the Board of Supervisors. We strongly advise property owners to act as soon as possible. When the emergency ordinance expires in 18 months, it is unlikely that it will be extended. 

The public comment at the land use subcommittee was almost uniformly negative. Out of about ten commentators, only one spoke in favor. The public commenters, most of them YIMBYs, spoke out against the legislation because although it facilitates building more housing, it does not apply city-wide. Instead, it applies mostly in neighborhoods that are already heavi targeted for development, including the Mission District and Chinatown. YIMBY commentators averred that the fair and progressive way of achieving the goal of the legislation - promoting more multifamily development and discouraging large single family homes - would be to rezone the single family neighborhoods in San Francisco to become multifamily, and to allow this legislation to apply city-wide.