Does the Housing Accountability Act Apply to My Project? ZFP’s Clients Test the Law’s Boundaries.

by | Feb 23, 2022 | Land Use, Permits and Appeals |

California’s Housing Accountability Act (Government Code section 65589.5) requires local governments to approve code-compliant housing development projects. If a city denies a housing development project without making specific findings of an unmitigable “public health and safety” impact, a project sponsor, community group, or member of the public can file a lawsuit and force the city to rescind the denial, approve the project, pay attorney’s fees, and, in some cases, pay a hefty fine.

Zacks, Freedman & Patterson’s attorneys have been at the forefront of Housing Accountability Act litigation, helping their clients pioneer the use of this law to change the way cities review housing development project applications. We have prosecuted numerous lawsuits that have successfully expanded the Housing Accountability Act’s reach – putting cities on notice that they can no longer deny housing applications with impunity.

The Housing Accountability Act has been amended and strengthened many times over the past four decades, and our firm has been privileged to assist with the process in recent years. However, there is still significant ambiguity in the law that has made it difficult for real estate developers, builders, and community groups to sue cities that deny code-compliant housing development projects. Several new lawsuits filed by Zacks, Freedman & Patterson’s clients seek to finally resolve the Housing Accountability Act’s most troublesome ambiguities.

Does the Housing Accountability Act Apply to Conditional Use Permits?

450 O’Farrell Street, San Francisco

The Housing Accountability Act requires that a housing development project be approved if the project complies with applicable, objective codes and standards. But what if a project requires conditional use authorization (“CUA”)? Conditional use criteria are often subjective rather than objective. Moreover, conditional use authorization is often discretionary; it can be approved even if some of the criteria are not met. In Yes In My Back Yard (YIMBY) v. City and County of San Francisco, Case No. CPF-21-517651, ZFP will advance its clients’ argument that 1) conditional use criteria are not “applicable” if they are discretionary (i.e., if local code allows  for approval of conditional use authorization even if the criteria are not all met), and 2) conditional use criteria are not “objective” if they are subjective (e.g., a finding of neighborhood compatibility). If a conditional use permit includes non-applicable or non-objective requirements, it should be subject to mandatory approval under the Housing Accountability Act.

Does the Housing Accountability Act Require Project Approval Notwithstanding a Finding of Unmitigated Environmental Impacts Under CEQA?

469 Stevenson Street, San Francisco

By its own terms, the Housing Accountability Act does not excuse compliance with the California Environmental Quality Act (CEQA). On the other hand, the Housing Accountability Act requires project approval unless there is a specific finding of unmitigable impacts on public health or safety. Can a city avoid mandatory project approval by finding that its own CEQA process failed to take account of unstudied environmental impacts? In a second YIMBY case, Yes In My Back Yard v. City and County of San Francisco, Case No. CPF-22-517661, ZFP will advance its clients’ argument that the cities cannot avoid their obligations under state housing law by opting to do further environmental review instead of timely approving a housing development project. We argue that a housing development project must be approved regardless of a city’s failure to comply with CEQA, and regardless of unmitigated environmental impacts under CEQA (with the exception of certain public health and safety impacts).

Does the Housing Accountability Act Apply to a Single-Family Home?

308 Los Angeles Boulevard, San Anselmo

More than two-thirds of California’s residential land is zoned for single-family homes, yet it is an open question whether the Housing Accountability Act applies to an individual house. This is due to ambiguous wording in the statutory text. Nevertheless, the Housing Accountability Act states that it should be construed broadly, in a manner to support the creation of housing for all Californians. In Reznitskiy v. County of Marin, Case No. A161813 (pending oral argument in the Court of Appeal), ZFP advances its clients’ argument that the law must apply to single-family homes – both because of the statute’s plain language and because the future of housing in our state depends on this commonsense interpretation.

Does the Housing Accountability Act Require Approval of Projects that Comply with the General Plan Designation Even if They Do Not Comply with the Site’s Zoning?

5353 Del Moreno Drive, Los Angeles

The Housing Accountability Act states that a housing development project must be approved if it complies with a local government’s General Plan land use designation, notwithstanding inconsistent zoning for the site. In a third YIMBY case, Yes In My Back Yard v. City of Los Angeles, Case No. 21STCP03883, ZFP will advance its clients’ argument that a General Plan is inconsistent with zoning where the General Plan authorizes high-density residential use, and the zoning does not allow such use. If this question is properly resolved by the courts, cities will no longer get away with requiring rezoning applications for projects that comply with a site’s General Plan land use designation. Los Angeles and other cities commonly use this tactic to effectively opt out of the Housing Accountability Act on the theory that a project is not code-compliant if it includes more dwelling units than the zoning allows.

The attorneys at Zacks, Freedman & Patterson can advise you on the Housing Accountability Act or any other land use matter. Contact us to request a consultation.