STATUS: Case WON!

Park View from 4910 Birch.jpg

Newport Beach

Orange County, CA

fighting corporate nimbyism

3/15/2022 Update: We won our case!

In a decisive victory for housing, the judge rejected every one of the petitioner’s claims. The Housing Accountability Act (HAA) arguments we made in our intervention were especially important in convincing the judge to rule in favor of housing. The HAA allows cities to deny projects which are inconsistent with a city's zoning or general plan. The HAA also allows orgs like ours to challenge denials of housing projects when that denial is purportedly based on an inconsistency with a general plan or zoning standard.

In this case, the Olen argued Newport Beach should have denied approval of the 4400 Von Karmen Ave. housing project because it didn't comply with the City's general plan standards, claiming it didn’t include a required “neighborhood park” with a “150-foot minimum dimension” and that it had more homes than the general plan allowed it to.

Unfortunately for NIMBYs, the HAA says that when applying a general plan standard to housing, the standard can only be applied when doing so involves "no personal or subjective judgment by a public official" is "uniformly verifiable by reference to an external and uniform benchmark or criterion available" and "knowable" by both the project applicant and public official. Under the HAA, a city also must find that a project meets a particular standard if a "reasonable person" could find that the project met that standard. Specifically, Olen claimed the project didn't conform to the general plan because it used a state density bonus law  that required approval of more units than allowed in the general plan (312 instead of 260), and wasn't a "residential village," because it didn’t include a "neighborhood park;" which was required under the general plan. However, the HAA and State Density Bonus Law work together to specifically allow projects to exceed the density allowed in the general plan, and require cities to approve those projects. And, under the "reasonable person" standard, because City staff had determined that the project did meet their own, somewhat subjective, definitions of "residential village" and "neighborhood park," and City staff are “reasonable” people, we argued it would have been an HAA violation for the City to find otherwise and deny the project. So the city followed the law by approving the project. 

The Court agreed with us: "The Density Bonus Law requires additional units beyond the caps, whether or not the caps contain exceptions. The Project is not 52 units over 260 because those 52 units do not count against the 260-unit cap in the first place…” The Court also noted, “other than the 150-foot minimum dimension requirement, there is no specific definition of what constitutes a neighborhood park...the City was within its discretion to find the park was consistent with the requirement of a neighborhood park...Intervenors argue...that if the 150-foot minimum isn't objective, the City cannot deny approval of the Project on the grounds of inconsistency with that policy...the Court questions whether "minimum dimension" is an objective criterion that could serve as a basis for finding of inconsistency...the City was within its discretion to find the park consistent with the 150-foot ['minimum dimension'] requirement [for a neighborhood park]." 

————

California’s housing crisis is created and maintained every day by thousands of selfish and anti-social decisions. In Newport Beach, housing advocates have found a particularly egregious example of NIMBYism, and are intervening on the side of creating housing in this high opportunity and exclusive Southern California beach community.

The site at 4440 Von Karman Avenue has been embattled for several years. On one side, we have the City of Newport Beach, the California state department of Housing and Community Development (HCD), the housing developer, and local housing advocates all enjoying a perhaps rare unity of opinion in support of new housing. And on the other side, Olenicoff Properties, a developer that owns a 52,000 sf office building adjacent to the development site.   

4400 Von Karman Ave is currently a flat grassy field surrounded by parking lots and office buildings. Olenicoff Properties is the landlord that owns the office park next door.  Across the street are several hotels and some coffee and fast food chain restaurants. In all, a thoroughly non-residential neighborhood.

The lack of voting residents in this area of town makes this site attractive to the officials at the City of Newport Beach as a place to zone for new housing without fear of NIMBY pushback. In a residential neighborhood, neighbors complain that new housing is “not consistent with the character of their neighborhood”, but in an office park, there are no existing residents to complain that new housing and new residents don’t belong.

This is why the city of Newport Beach has included 4400 Von Karmen in its Housing Element since 2007. In effect, for almost 15 years, the city of Newport Beach has promised the California Department of Community and Economic Development (HCD) that this site is available to developers wishing to build housing. Finally, in 2021, a proposal for 312 new apartments was approved.

Elizabeth Hansburg, co-founder and executive director of People for Housing OC, the YIMBY organization for Orange County, has been organizing residents to support this project since it was first proposed. “We have been longtime supporters of housing on this site, starting back in 2019. We wrote several letters of support addressing the city council. Since then, the project has been through several iterations, so when the current version of the project was approved in January of this year, it was refreshing to see the city do their part to add to the housing stock in a high opportunity community in Orange County. When Olenicoff Properties filed a CEQA suit to stop the new housing development from moving forward, we looped in our legal partner YIMBY Law, to see if we could intervene.”

On Monday, August 9, 2021, the judge granted the intervention, recognizing that housing advocates have a stake in the ability of this housing project actually being built. YIMBY Law typically enforces state housing law by suing cities that are illegally refusing to approve housing. Getting involved with a CEQA lawsuit, on the side of the city, is a novel strategy, says Executive Director Sonja Trauss, “We are usually in an oppositional stance with cities, unlike here, where we are supportive of what Newport Beach is trying to do. This lawsuit is also unique for us in that it involves the California Environmental Quality Act. CEQA is a state law that is meant to help protect the environment, but it is frequently abused, as it is here, by people who don’t care about the environment at all, and are merely trying to interfere with nearby housing construction for reasons of NIMBYism or their own personal gain. Unfortunately this abusive CEQA strategy is fairly common.”

Hansburg notes that Olenikoff’s opposition to apartments adjacent to an office use is inconsistent with the company’s own past development history. “I’ve lived in North OC for 15 years, and I frequently drive past the Olen Pointe office park off of Lambert Ave in Brea. It’s a really attractive development.” Olen Pointe includes six (6) Class A office towers and restaurants visible from Lambert Ave. 

The development in Brea was originally entitled for office and commercial use only, but in 2007 the owner / developer - Olen Properties - requested a change to the city’s zoning and general plan to accommodate the development of 260 apartments. The city of Brea granted Olen Properties’ rezoning request and the Pointe Apartments were built on the site of a surface parking lot within the office park around 2009.

Turns out, Corporations can be NIMBYs too.

Will you support us to take on more cases like this? Please sign up to volunteer or donate.