Ruegg & Ellsworth v. City of Berkeley

Filed 4/20/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RUEGG & ELLSWORTH et al.,
Petitioners and Appellants,
v.
CITY OF BERKELEY et al.,
Defendants and Respondents,
A159218
CONFEDERATED VILLAGES OF (Alameda County Super. Ct.
LISJAN et al., No. RG18930003)
Interveners and Respondents.
Ruegg & Ellsworth and Frank Spenger Company applied to the City of
Berkeley (City) for approval of a mixed-use development pursuant to
Government Code section 65913.4, which provides for streamlined,
ministerial approval of affordable housing projects meeting specified
requirements and conditions. The City denied the application for failure to
meet several statutory requirements. Appellants now appeal the trial court’s
denial of the petition for writ of mandate by which they sought to require the
City to grant their application. For the reasons explained herein, we will
reverse the judgment and remand with directions for the trial court to grant
the writ petition.
1
BACKGROUND
In 2015, appellants submitted an application for a mixed-use
development at 1900 4th Street (Spenger’s parking lot) in Berkeley with 135
apartments over approximately 33,000 square feet of retail space and
parking. The project site is the block bordered by Hearst Avenue on the
north, University Avenue on the south, Fourth Street on the east, and the
Union Pacific Railroad tracks (Third Street) on the west.
The development site is part of a three-block area the Berkeley
Landmarks Preservation Commission (Commission) designated a City of
Berkeley Landmark in 2000, as the location of the West Berkeley Shellmound
(CA-ALA-307) (Shellmound).1 The Shellmound is listed in the California
Register of Historical Resources.
As described in the City’s landmark application, the Shellmound “is
believed to have been one of the first of its kind at the Bay’s edge, built ca
3,700 B.C.,” 1,000 years before the first pyramid.2 Shellmounds were “sacred
burial sites for the average deceased mound-dweller,” slowly constructed over
thousands of years from daily debris and artifacts left by the tribelet
communities that lived on the site. “The importance of the shellmounds
should not be underestimated.” Shellmounds contained “ritual burials
exhibiting a variety of deliberate, traditional positioning and use of burial
goods” and “[e]ven to this day, native descendants value these mounds as
The landmark area extends north to south from Hearst Avenue to
1
University Avenue and east to west from 4th Street to I-880.
2 A 2017 letter from a University of California Berkeley professor of
Anthropology states that the Shellmound is the earliest known shellmound
site in the region, first occupied about 4,900 years ago and used for the next
3,700 years, and sporadically revisited after that. It is #307 of “no less than
four hundred and twenty-five shellmounds on or near the shoreline of the
Bay” recorded by Archaeologist N.C. Nelson in 1907 and 1908.
2
sacred resting sites of their early ancestors.” In 1950, a University of
California Berkeley archeologists removed “numerous artifacts and 95
human burials” from the Shellmound. Other findings from the Shellmound
include a section of the floor of a “large, presumably ceremonial house,”
firepits, burials revealing ceremonial red paint and “mortuary goods,” animal
burials, food debris, and artifacts providing information about diet and
means of food collection, shell beads, and stone and bone tools.
The decision approving the West Berkeley Shellmound as a City
landmark states that the Shellmound “is most highly significant to native
descendants as a sacred burial ground,” its “cultural resource lies in its age,
the fact that it is the oldest and one of the largest mounds established around
the bay, that it represents ancient culture, that it was built by the earliest
humans in the area,” that “it is recognized that this historical resource has
yielded and is likely to yield information ‘important in prehistory or history,’ ”
and that “the Shellmound plays an important role in the history of the
changing shoreline and the change in attitude towards the use of natural
resources.” The landmark designation does not include any above ground
buildings or structures; it included “the site itself and all items found
subsurface including artifacts from the earliest native habitation, such as but
not limited to native tools, ornaments, and human burials.”
Nothing remains of the Shellmound above ground. As described in a
November 2016 Draft Environmental Impact Report (DEIR) prepared for the
Berkeley Planning and Development Department (Department) in connection
with appellants’ 2015 application, by the mid-20th century, “most of the
Shellmound had been systematically demolished by development and related
ground disturbance. Shellmound materials were scattered throughout the
surrounding area as agricultural fertilizer and for road-building and paving.”
3
A 1950 survey reported that the “original dimensions and exact limits of the
Shellmound could not be determined because most of it had been removed,”
but it “seems to have covered an elliptical area, conservatively estimated at
350 x 600 feet, with its long axis paralleling Strawberry Creek.” The portion
remaining in 1950 measured 45 by 100 feet. Its highest point was 15 feet
above ground, but it had been higher, as “the peak had been cut down and
leveled to serve as the base for a water tank,” and it extended three feet
below ground.
One of the questions in this case is whether the Shellmound was
actually located on the project site. According to the historical reviews
documented in the administrative record, a 1949 survey placed the
Shellmound between Hearst and University and between Second and Fourth
Streets. A report prepared for appellants in January 2017, by Geosphere
Consultants, Inc., contains several historical maps of the area, including an
1856 United States Coast and Geodetic Survey map showing one shellmound
to the east of the project site and one to the west of the site; the same is true
on a 1957 United States Geological Survey map. Based on these and other
maps, as well as exploratory borings, the report concluded the shellmounds
were in “close proximity to” but did not “encroach onto the project site.”
Graphics and video consultants for interveners Confederated Villages
of Lisjan (CVL), using the 1856 and 1957 maps and a 2018 “OpenStreetMap,”
created a series of maps that show the shellmound to the west of the project
site “mostly within the block west of the Project site” but extending into the
northwest corner of the project site.
A map from a 1907 manuscript shows the Shellmound on much of
the project site and extending to the east of Fourth Street.
4
As related in a 2002 “Cultural Resources Inventory” prepared for the
City by Garcia and Associates (lead author Christopher Dore), in 1999 Allen
Pastron of Archeo-Tec placed and evaluated borings within the northeastern
quadrant of the Spenger’s parking lot, near the intersection of Fourth Street
and Hearst Avenue, and found “no evidence to suggest that remnants of the
West Berkeley Shellmound exist” in that area. Pastron conducted additional
testing in 2000, and found two “culturally sensitive areas” containing
“prehistoric deposits” of silt or silty clay “interspersed with flecks of charcoal,
a relatively small quantity of fish and mammal bone, a few pieces of fire-
affected rock, several possible stone artifacts and ubiquitous amounts of
shell,” one in the northwestern quadrant of the parking lot at depths of five to
nine feet, and the other in the east-central portion of the site at depths of six
to nine feet. Pastron opined that material from the six- to eight-foot layer of
Boring #19, in the northwest quadrant, “probably represents a remnant of
CA-ALA-307,” although there were no tools, prehistoric artifacts, or “other
signs found that this is assuredly part of CA-ALA-307.” Pastron concluded
the data was insufficient to determine whether the “areas of prehistoric
cultural sensitivity represent zones of primary or secondary archeological
deposition.” He stated, however, that because it appeared “certain that the
heart of the West Berkeley Shellmound (CA-ALA-307) was situated directly
to the west of the present project area, across the Union Pacific Railroad
tracks” and “the site’s original horizontal boundaries were quite extensive,
but never precisely determined . . . it is possible that the recently identified
cultural deposit may represent an undisturbed, or at least minimally
disturbed, remnant of the eastern edge of the West Berkeley Shellmound
(CA-ALA-307).”
5
In 2001, a geoarchaeological investigation conducted in connection with
the Cultural Resources Inventory found intact primary deposits of
shellmound material in several locations adjacent to the project site on
Fourth Street, University Avenue, and Hearst Avenue. The report noted,
with reference to Pastron’s findings, that “the cultural levels in the parking
lot are more deeply buried than the shell levels on 4th Street.”
In 2014, Archeo-Tec conducted another investigation of the Spenger’s
parking lot site, again overseen by Pastron, in consultation with Andrew
Galvan, a Native American resource consultant and member of the Ohlone
Tribe. The investigation included excavation of 20 trenches in the central
portion of the project site and two larger ones in the northwest portion,
placed to “extensively sample” areas identified in the 2000 excavation as
“potentially containing shellmound material,” and use of ground-penetrating
radar to pinpoint the “most likely areas of potentially intact midden.”
Archeo-Tec did not find “intact shellmound” or “primary shellmound deposits”
anywhere within the project site, and the “culturally derived deposits”
recovered appeared to be “redeposited,” “not in primary context.” The report
explained that test trenches 21 and 22 were opened to “overlap the area
previously penetrated by Boring #19 (see Pastron 2000), which indicated a
high potential of finding intact shellmound deposits.” No artifacts were
recovered from trench 21. The investigators stated that, “[u]pon closer
examination,” they determined Boring #19 “probably did not originally
contain intact shellmound between 5 and 9 feet below surface level” because
they “only encountered a thin layer of crushed shell,” which they believed was
“most likely a redistributed remnant of the West Berkeley Shellmound (for
the purposes of road building and agricultural soil improvement, described
elsewhere) and not the intact shellmound itself.” In trench 22, the
6
investigators found “a historic period bottle embedded in the shellmound
material, which suggests that the material was redeposited relatively
recently and is thus not in original context.”
The 2014 data led the investigators to conclude that Shellmound
materials identified within the parking lot during testing in 1999 and 2000,
were in “secondary deposition,” having “probably originated from the West
Berkeley Shellmound” but “moved from their original location onto the
project site as a consequence of natural creek deposition or in the late 19th or
early 20th century during one of many episodes of human-induced
topographic modification.” The investigators stated, “we think it is not
possible that the culturally derived deposits we encountered were
undisturbed remnants of the eastern edge of the West Berkeley Shellmound.
Indeed, based on available evidence . . . it is most parsimonious to interpret
the shellmound deposits encountered as highly disturbed, secondarily
emplaced and probably intentionally distributed, for purposes of road
building and agricultural soil enhancement.”
The 2014 report acknowledges it could not “eliminate with absolute
certainty the possibility that significant historic and pre-contact cultural
materials exist within the footprint of the Spenger’s Parking Lot site” but the
investigators were “confident . . . that this possibility is quite low.” Still, “[i]n
consideration of the known long occupation of the area by the Ohlone people
and others before them, and in accordance with the known proximity of one of
the most important precontact shellmounds in the state of California (i.e., the
West Berkeley Shellmound),” the investigators recommended monitoring of
“all project related ground disturbance below the historic fill layer (which we
find in the Spenger’s Parking Lot in excess of approximately 4 feet below the
present ground surface)” by a qualified archaeologist and a representative of
7
the Ohlone people, and a site-wide ground-penetrating radar (GPR) survey
prior to full-scale ground-disturbance and demolition.”
The DEIR, after review of these and other investigations, stated that
although “National Register or California Register-eligible shellmound
deposits” had not been identified on the project site in previous excavations,
“the possibility exists that intact shellmound deposits could be present in
areas that have not been previously excavated” and “excavation could
potentially unearth previously unidentified intact shellmound deposits that
contribute to the resource’s significance under the National Register and
California Register. These impacts would have a substantial adverse change
on a historical resource due to the destruction of those critical aspects of
integrity that qualify it as a City Landmark and for listing in the National
Register and California Register.” The DEIR concluded that without
mitigation measures, the project would have significant impacts including
“[a]dverse changes in the significance of a historical resource, the West
Berkeley Shellmound (City Landmark #227) during ground disturbing
activities.” The mitigation measures, which the DEIR stated would reduce
the impacts to “a less-than-significant level,” included an archaeological
survey with ground-penetrating radar to identify areas most likely to yield
shellmound material; cultural awareness and sensitivity training for
construction contractors prior to ground disturbance; archaeologist review of
utility plan prior to issuance of demolition or grading permits to assess
potential impacts of, and mitigation measures for, utility excavations; and
monitoring of all ground-disturbing activities by an archaeologist and a
representative of an Ohlone Tribe.
Galvan, as president of the Board of Directors of Ohlone Indian Tribe,
Inc., commented that the DEIR was “accurate with respect to the
8
archeological rigor and methodology” to which the site had been subjected
and asked that the mitigations be “vigorously enforced throughout earth
working activities.” The Commission, however, based on “extensive public
testimony” and review of written testimony and documentation, commented
that the DEIR was “seriously deficient,” particularly with respect to cultural
resources.
On April 5, 2018, appellants asked the City to suspend processing of
the use permit and California Environmental Quality Act (CEQA)
documentation for the project effective March 8, 2018.
Meanwhile, the Legislature enacted Senate Bill No. 35 (Senate Bill 35),
effective January 1, 2018, adding section 65913.4 to the Government Code.3
(Stats. 2017, ch. 366, § 3.) Section 65913.4 requires a “ministerial approval
process” for certain affordable housing projects when a locality has failed to
provide its share of “regional housing needs, by income category.” (§ 65913.4,
subd. (a)(4)(A).)4
Section 65913.4, subdivision (a), provides that if a proposed
development satisfies all of the “objective planning standards” enumerated in
the statute, it is subject to a “streamlined, ministerial approval process” and
“not subject to a conditional use permit.” Among the objective planning
standards, as relevant here, and as worded at the time of appellants’
3Further statutory references will be to the Government Code unless
otherwise specified.
4 The Housing Element Law (§ 65580 et seq.) establishes a system by
which the state’s need for housing is determined on a regional basis, with a
share allocated to each locality in the region and the locality responsible for
developing a plan to provide its share of the regional housing needs
assessment (RHNA). (§§ 65584.01, 65584.05, 65583, subd. (c), 65583.2,
65588.)
9
application,5 the development must be “a multifamily housing development
that contains two or more residential units” (§ 65913.4, subd. (a)(1)); the
development must be “located on a site that satisfies all of the following:
[¶] . . . [¶] (C) A site that is zoned for residential use or residential mixed-use
development, or has a general plan designation that allows residential use or
a mix of residential and nonresidential uses, with at least two-thirds of the
square footage of the development designated for residential use” (§ 65913.4,
subd. (a)(2)(C));6 and the development must be “consistent with objective
zoning standards, objective subdivision standards, and objective design
review standards in effect at the time that the development is submitted to
the local government pursuant to this section” (§ 65913.4, subd. (a)(5)).
Additionally, the development must not be located on a site where any of the
following apply: “The development would require the demolition of a historic
structure that was placed on a national, state, or local historic register.”
(§ 65913.4, subd. (a)(7)(C).)
If the local government determines that a development submitted
pursuant to section 65913.4 is “in conflict with any of the objective planning
standards specified in subdivision (a), it shall provide the development
proponent written documentation of which standard or standards the
5 Section 65913.4 has been amended a number of times. This opinion
will refer to the statute in effect at the time of appellants’ application and
point out relevant subsequent changes as necessary.
6 An amendment to section 65913.4 in 2020, among other things,
changed the relevant language of subdivision (a)(2)(C), as indicated in italics:
“The development and the site on which it is located satisfy all of the
following: . . . (C) It is zoned for residential use or residential mixed-use
development, or has a general plan designation that allows residential use or
a mix of residential and nonresidential uses, and at least two-thirds of the
square footage of the development is designated for residential use.” (Stats.
2020, ch. 194, § 1, italics added.)
10
development conflicts with, and an explanation for the reason or reasons the
development conflicts with that standard or standards,” within 60 days for a
development of up to 150 housing units or within 90 days for a development
containing more than 150 housing units. (§ 65913.4, former subd. (b)(1), now
subd (c)(1).) “If the local government fails to provide the required
documentation pursuant to paragraph (1), the development shall be deemed
to satisfy the objective planning standards specified in subdivision (a).”
(§ 65913.4, former subd. (b)(2), now subd. (c)(2).)
On March 8, 2018, appellants submitted an application pursuant to
section 65913.4 for development at the 1900 4th Street site of 260 dwelling
units, 50 percent of which would be “affordable to low-income households,”
over approximately 27,500 square feet of retail space and parking.
In May 2018, an attorney representing CVL informed the City of his
client’s intent to sue if the City found the project was subject to ministerial
approval under section 65913.4.
On June 5, 2018, the Department provided appellants the written
response required by section 65913.4, subdivision (b)(2) (“90-day letter” or
“June 2018 letter”), stating that Senate Bill 35 does not apply to the project
“to the extent it impinges on legitimate municipal affairs (preservation of a
designated City landmark) but nevertheless detailing the Department’s
analysis of the statutory objective standards. The Department determined
that several components of the application were inconsistent with the criteria
for streamlined approval and that further information was needed as to
others. As relevant here, the Department stated that the project conflicted
with the City’s Affordable Housing Mitigation Fee (AHMF) requirements and
Landmarks Preservation Ordinance (§ 65913.4, subd. (a)(5)); that if the
Shellmound or another historic structure was beneath the site, the project
11
could require demolition of a historic structure that was placed on a historic
register (§ 65913.4, subd. (a)(7)(C)); and that the project potentially conflicted
with the City’s requirements that a project meet applicable performance
standards for off-site impacts and not exceed amount and intensity of use
that can be served by available traffic capacity (§ 65913.4, subd. (a)(5)).
After appellants responded to each of the City’s points, the Department
denied the application for ministerial approval. Its September 4, 2018 letter
first explained that Senate Bill 35 could not constitutionally be applied to the
project because of the City’s right, as a charter city, to govern itself with
regard to municipal affairs, including protection of local landmarks. Second,
the letter explained that if Senate Bill 35 applied, the project did not satisfy
the requirements for ministerial approval due to conflict with the City’s
AHMF requirements with respect to very low-income units, conflict with the
City’s requirements regarding traffic impacts, and fact that the project might
require demolition of historic structure that has been placed on a state and
local historic register. The Department stated that appellants’ original
application had been placed on hold and they were welcome to reactivate that
project or reapply under a standard use permit for the revised project.
On November 28, 2018, appellants filed a petition for writ of mandate
and complaint for declaratory and injunctive relief against the City and the
Department. Appellants sought orders declaring Senate Bill 35
constitutional as to the project and requiring the City to issue the ministerial
permit for which they applied, alleging that denial of the permit violated both
section 65913.4 and the Housing Accountability Act (HAA) (Gov. Code,
§ 65589.5). The petition challenged respondents’ assertion that Senate
Bill 35 unconstitutionally impinged on the City’s authority over municipal
affairs, argued the AHMF and traffic requirements were not objective
12
standards under Senate Bill 35, and argued the Shellmound was not a
“structure” within the meaning of the statute and was not located on the
project site. Appellants filed a supplemental petition and complaint on
December 17, 2018, in order to bring before the court guidelines for the
streamlined ministerial approval process issued on November 29, 2018, by
the California Department of Housing and Community Development (DHCD
Guidelines).
On February 4, 2019, the trial court granted CVL leave to intervene.7
Opposing the petition, the City argued the state could not interfere
with its authority over municipal affairs under the Home Rule doctrine;
Senate Bill 35 did not preempt the City’s historic protection authority;
appellants failed to demonstrate the City acted arbitrarily, capriciously, and
without any evidence in determining appellants did not establish the project
would not require “ ‘demolition of a historic structure’ placed on a historic
register’ ” (§ 65913.4, subd. (a)(7)(C)); Senate Bill 35 does not apply to mixed-
use developments, and could not be so applied without violating the home
rule doctrine; the project does not comply with the City’s AHMF Ordinance
and does not satisfy objective traffic standards; and the City did not
disapprove the project under the HAA. CVL argued Senate Bill 35 does not
preempt the City’s discretionary zoning controls protecting its landmarks and
7 CVL is not listed as a federal or state recognized tribe. (NCSL,
Federal and State Recognized Tribes (updated Mar. 2020)
[as of Apr. 20, 2021].) In requesting
intervention, CVL stated that Confederated Villages of Lisjan is a traditional
Native American tribe with over 85 members, and Confederated Villages of
Lisjan, Inc. is a California nonprofit mutual benefit corporation formed in
2017 to “ ‘protect and promote the rights of Ohlone people of the East Bay
Area, including education, health, cultural and religious rights.’ ”
13
the City’s determination that the project might require demolition of a
historic structure that has been placed on a historic register was supported
by substantial evidence.
After a hearing in September 2019, the court filed its order denying the
petition on October 21, 2019. The court denied the petition for two reasons:
The City’s determination that the project would require demolition of a
historic structure was not “entirely without evidentiary support,” and section
65913.4 does not apply to mixed-use developments. The trial court did not
reach the other grounds respondents8 raised in support of the denial of
ministerial approval.
Appellants filed a motion for reconsideration or new trial, arguing that
recent amendments to section 65913.4 demonstrated the trial court should
have reviewed the City’s conclusion that the project would destroy a
historical structure for substantial evidence rather than applying a more
deferential standard of review, and also demonstrated the statute applies to
mixed-use developments. The trial court denied the motion. Judgment was
entered on December 19, 2019.
This appeal followed.
DISCUSSION
Section 65913.4 is one of a number of measures the California
Legislature has adopted to address the crisis of insufficient housing in the
state. Declarations of the statewide importance of housing in general, and
affordable housing in particular, have appeared in legislation for decades.
(E.g., §§ 65580, subd. (a), as enacted in 1980, Stats. 1980, ch. 1143, p. 3697,
see Stats 1999, ch. 967; 65913 [“there exists a severe shortage of affordable
8We refer to the City and Planning Department collectively as
respondents. We refer to intervener CVL separately.
14
housing, especially for persons and families of low and moderate income” and
“there is an immediate need to encourage the development of new housing”].)
Some 30 years ago, the Legislature amended the HAA to include a
number of findings regarding affordable housing, including that the “lack of
affordable housing is a critical problem which threatens the economic,
environmental, and social quality of life in California” (§ 65589.5, subd.
(a)(1)), the “excessive cost of the state’s housing supply is partially caused by
activities and policies of many local governments that limit the approval of
affordable housing, increase the cost of land for affordable housing, and
require that high fees and exactions be paid by producers of potentially
affordable housing” (§ 65589.5, subd. (a)(2)), “among the consequences of
those actions are discrimination against low-income and minority households,
lack of housing to support employment growth, imbalance in jobs and
housing, reduced mobility, urban sprawl, excessive commuting, and air
quality deterioration” (§ 65589.5, subd. (a)(3)), and “[m]any local governments
do not give adequate attention to the economic, environmental, and social
costs of decisions that result in disapproval of housing development projects,
reduction in density of housing projects, and excessive standards for housing
development projects” (§ 65589.5, subds. (a)(1)–(a)(4), added by Stats. 1990,
ch. 1439, § 1).9 Among other things, the Legislature prohibited a local
government from disapproving housing development projects affordable to
low and moderate-income households unless it found one of a number of
enumerated conditions by substantial evidence. (§ 65589.5, subd. (d).) The
Legislature stated, “This section shall be applicable to charter cities, because
9After subsequent amendments, these provisions appear in the current
statute as section 65589.5, subdivision (a)(1)(A) through (a)(1)(D).
15
the Legislature finds that the lack of affordable housing . . . is a critical
statewide problem.” (§ 65589.5, subd. (g).)
The Legislature added a number of additional findings in 2017,
effective January 1, 2018. (Stats. 2017, ch. 368, § 1.5; Stats. 2017, ch. 373,
§ 1.5; Stats. 2017, ch. 378, § 1.5.) These include:
“California has a housing supply and affordability crisis of historic
proportions. The consequences of failing to effectively and aggressively
confront this crisis are hurting millions of Californians, robbing future
generations of the chance to call California home, stifling economic
opportunities for workers and businesses, worsening poverty and
homelessness, and undermining the state’s environmental and climate
objectives.” (§ 65589.5, subd. (a)(2)(A).)
“While the causes of this crisis are multiple and complex, the absence of
meaningful and effective policy reforms to significantly enhance the approval
and supply of housing affordable to Californians of all income levels is a key
factor.” (§ 65589.5, subd. (a)(2)(B).)
“California’s housing picture has reached a crisis of historic proportions
despite the fact that, for decades, the Legislature has enacted numerous
statutes intended to significantly increase the approval, development, and
affordability of housing for all income levels, including this section.”
(§ 65589.5, subd. (a)(2)(J).)
“The Legislature’s intent in enacting this section in 1982 and in
expanding its provisions since then was 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
16
development projects and emergency shelters. That intent has not been
fulfilled.” (§ 65589.5, subd. (a)(2)(K).)
Section 65589.5, subdivision (a)(2)(L), states, “It is the policy of the
state that this section be interpreted and implemented in a manner to afford
the fullest possible weight to the interest of, and the approval and provision
of, housing.”
Senate Bill 35, enacting section 65913.4, was filed with the Secretary of
State on the same day as the bill amending section 65589.5 as just described.
As with section 65589.5, the Legislature stated that the changes made by
Senate Bill 35 would apply to charter cities because “ensuring access to
affordable housing is a matter of statewide concern, and not a municipal
affair.” (Stats. 2017, ch. 366, §§ 3 [subd. (h)(4)]10 and 4, eff. Jan. 1, 2018.)
Like section 65589.5, section 65913.4 contains a provision declaring the state
policy “that this section be interpreted and implemented in a manner to
afford the fullest possible weight to the interest of, and the approval and
provision of, increased housing supply.” (§ 65913.4, subd. (n).) Senate Bill 35
added “[s]treamlining housing approvals during a housing shortage” to a list
of “reforms and incentives” the Legislature has provided “to facilitate and
expedite the construction of affordable housing.” (§ 65582.1, subd. (p); Stats.
2017, ch. 366, § 2, eff. Jan. 1, 2018.)
Our interpretation of section 65913.4 is necessarily guided by these
Legislative pronouncements, as our primary task is to effectuate the
Legislature’s intent.
10 Senate Bill 35 defined “locality” and “local government” as meaning
“a city, including a charter city, a county, including a charter county, or a city
and county, including a charter city and county.” (§ 65913.4, former subd.
(h)(4), now subd. (k)(6).)
17
I.
A.
In denying the petition under section 65913.4, subdivision (a)(7)(C), the
trial court applied the deferential standard of review applicable under Code
of Civil Procedure section 1085,11 commenting that the City’s determination
the project “would require the demolition of a historic structure” was
“strongly contradicted by the results of [appellants’] 2014 archeological
research” but holding it was “not entirely without evidentiary support.” The
court noted that Pastron’s 2000 study of the site determined that “remnants
in the 6-to-8 foot layer of one sample, labeled Boring 19, ‘probably represents
a remnant of [the Berkeley Shellmound,]’ ” and a “1949 survey, based on an
earlier 1907 survey, placed the Berkeley Shellmound on the site.’ ” The court
held it was “not unreasonable for the City to determine that a pre-contact
shell midden such as the Berkeley Shellmound is an immovable work built
up by human artifice, and that it falls within the meaning of the term
‘structure’ ” and “[i]n the context of the buried or ruined remnants of an
historic structure, the plain meaning of the term ‘demolish’ includes
destructive excavation that would destroy the historical or archeological
integrity of the remnants of the structure.” Since the City’s determinations
that remnants of the Shellmound existed on the site and that the project
11 Trial court reviewed the City’s decision pursuant to Code of Civil
Procedure section 1085 rather than Code of Civil Procedure section 1094.5
because the decision whether to grant a permit under Senate Bill 35 is a
“ministerial decision that does not require an evidentiary hearing.” Code of
Civil Procedure section 1094.5 applies where the administrative decision was
made “as the result of a proceeding in which by law a hearing is required to
be given, evidence is required to be taken, and discretion in the
determination of facts is vested in the inferior tribunal, corporation, board, or
officer.” (Code Civ. Proc., § 1094.5, subd. (a).)
18
would require destructive excavation at least 10 feet underground (as
indicated on diagrams for underground parking 11 feet below ground level)
were not “entirely lacking in evidentiary support,” the court concluded the
City did not abuse its discretion in determining the project would require
demolition of a historical structure.
The standard of review for traditional mandamus (Code Civ. Proc.,
§ 1085), calls for the court to determine whether “the agency’s decision was
arbitrary, capricious or entirely lacking in evidentiary support, contrary to
established public policy, unlawful or procedurally unfair.” (California Public
Records Research, Inc. v. County of Alameda (2019) 37 Cal.App.5th 800, 806.)
Under this deferential standard of review, the court’s role is to “ensure that
the administrative agency has adequately considered all relevant factors, and
has demonstrated a rational connection between those factors, the choices
made, and the purposes of the enabling statute.” (Golden Drugs Co., Inc. v.
Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1471; O.W.L. Foundation v. City
of Rohnert Park (2008) 168 Cal.App.4th 568, 586.) The appellate court
applies the same standard of review as the trial court, reviewing the agency’s
action de novo. (American Board of Cosmetic Surgery v. Medical Board of
California (2008) 162 Cal.App.4th 534, 547–548; Friends of the Old Trees v.
Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1393.)
Arguing that the trial court erred in deferring to the City’s factual
determination that the project would require “ ‘demolition of a historic
structure’ ” (§ 65913.4, subd. (a)(7)(C)), appellants first contend section
65913.4 requires the reviewing court to determine whether substantial
evidence supported the applicant’s position (not the City’s). This argument is
based upon a 2019 amendment, Assembly Bill No. 1485 (Assembly Bill 1485)
(Stats. 2019, ch. 663, § 1), appellants describe as establishing a “ ‘substantial
19
evidence’ standard in favor of [appellants].” Although this amendment did
not become effective until after the City’s and trial court’s decisions,
appellants argue it should apply because it only clarified rather than changed
the law. Further, they argue it should govern our review, because it became
effective before we rendered our decision in this case.
Entirely apart from reliance upon the statutory amendment, appellants
argue the deferential standard of review applied by the trial court is
inappropriate here because it effectively nullifies the legislative intent in
section 65913.4 by insulating from review the fact-finding underlying an
agency’s determination whether its ministerial duty to approve a project is
triggered. We find this argument compelling and for that reason find it
unnecessary to determine whether the 2019 amendment applies
retroactively.12
The California Supreme Court has stated that “the discretion granted
an agency by the legislation authorizing its duties, and hence the appropriate
standard of review, may vary depending on the language and intent of that
legislation.” (San Francisco Fire Fighters Local 798 v. City and County of
San Francisco (2006) 38 Cal.4th 653, 669 (San Francisco Fire Fighters).) The
12 Assembly Bill 1485 added former subdivision (b)(3) (now subd. (c)(3))
to section 65913.4: “For purposes of this section, a development is consistent
with the objective planning standards specified in subdivision (a) if there is
substantial evidence that would allow a reasonable person to conclude that
the development is consistent with the objective planning standards.” (Stats.
2019, ch. 663, § 1, eff. Jan. 1, 2020.) The parties dispute whether this
amendment changed the law—which, in respondents’ view, would otherwise
require the highly deferential review generally applicable under Code of Civil
Procedure section 1085. If it merely clarified existing law, as appellants
maintain, it would present no retroactivity issue. (McClung v. Employment
Development Dept. (2004) 34 Cal.4th 467, 471–472 (McClung), quoting
Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 (Western
Security Bank).)
20
court in San Francisco Fire Fighters was reviewing the city’s determination
that its charter did not require submission to arbitration of a dispute over a
rule changing promotion procedures. The charter required binding
arbitration of disputes between the city and unions representing firefighters,
but stated an exception for “ ‘any rule, policy, procedure, order or practice . . .
which is necessary to ensure compliance with federal, state or local anti-
discrimination laws, ordinances or regulations.’ ” (Ibid.) The court
explained, “If it can be discerned that the Charter gives the City very little
discretion to determine what is necessary to ensure compliance, then some
kind of more rigorous independent review would be required in order to
prevent the City from circumventing what was intended to be a strict
limitation on its authority. In other words, the Charter provision may define
the scope of the City’s discretion, and this in turn shapes not only what is to
be reviewed but how it should be reviewed: legislation with a narrow
definition of necessity would not be served by a deferential standard of
review. But if it can be inferred from the authorizing legislation that a
municipality has been granted considerable discretion to determine what is
necessary to accomplish a valid legislative goal, a more deferential standard
of review is appropriate.” (Id. at pp. 669–670.)
Section 65913.4 expressly limits local governments’ authority over
applications for development of affordable housing projects meeting the
specified criteria: Applications under section 65913.4 are for a “streamlined,
ministerial approval process” based on “objective planning standards.”
(§ 65913.4, subd (a).) “ ‘A ministerial act is an act that a public officer is
required to perform in a prescribed manner in obedience to the mandate of
legal authority and without regard to his own judgment or opinion concerning
such act’s propriety or impropriety, when a given state of facts exists.’
21
[Citation.]” (Kavanaugh v. West Sonoma County Union High School
Dist. (2003) 29 Cal.4th 911, 916.) “Objective” means “[o]f, relating to, or
based on externally verifiable phenomena, as opposed to an individual’s
perceptions, feelings, or intentions” (Black’s Law Dictionary (11th ed. 2019)),
“based only on facts and not influenced by personal feelings or beliefs.”
(Macmillan Dict. Online (2021)
[as
of Apr. 20, 2021.) The Legislature’s choice of language makes obvious its
intent to constrain local governments’ discretion.13
Respondents point to Soderling v. City of Santa Monica (1983) 142
Cal.App.3d 501 (Soderling) as confirming that a reviewing court must defer
to the agency’s underlying factual determinations even in a ministerial duty
case. In Soderling, the city’s planning commission had approved tentative
subdivision maps for condominium conversion projects subject to specified
conditions; when the petitioner requested approval of final maps, some of the
conditions, including installation of smoke detectors, had not been completed.
(Id. at pp. 503–504.) Rejecting the petitioner’s argument that denying
approval was a breach of the city’s mandatory duty under the Subdivision
Map Act (§ 66410 et seq.), Soderling stated, “the city council retained
discretion only to determine whether there had been substantial compliance
with the conditions; thereafter, performance of its mandatory statutory duty
required disapproval of petitioner’s final maps.” (Soderling, at p. 509.)
13 Section 65913.4, subdivision (a)(5), defines “objective zoning
standards” and “objective design review standards” as “standards that
involve no personal or subjective judgment by a public official and are
uniformly verifiable by reference to an external and uniform benchmark or
criterion available and knowable by both the development applicant or
proponent and the public official prior to submittal.”
22
Respondents characterize this quotation from Soderling as “describ[ing]
the deference due to the agency’s factual determinations as a matter of
agency discretion.” In fact, there was no disputed factual question in
Soderling, as the petitioner admitted not having complied with the
conditions. But, in any event, the situation in Soderling differs significantly
from the present case. The question there was whether the petitioner had
complied with conditions imposed by the local agency pursuant to its
discretion under the Subdivision Map Act, which the court noted “implicitly
recognizes the breadth of local powers with respect to regulation of ‘the
design and location of buildings in such a [condominium] project by or
pursuant to local ordinances.’ ” (Soderling, supra, 142 Cal.App.3d at p. 507.)
Deference to the city’s factual determinations in that context would be
consistent with the reasoning of San Francisco Fire Fighters, supra, 38
Cal.4th at page 669, as the governing statute gave the city broad discretion to
determine appropriate conditions for approval of a subdivision map. In the
present case, the City was not given discretion to impose conditions and then
determine whether they were satisfied: It was required to approve the
development project if the conditions specified by the Legislature were met.
The specific issue here—whether the development project “would
require the demolition of a historic structure that was placed on a national,
state, or local historic register”—has both a legal and a factual component.
Whether the Shellmound is a “structure” within the meaning of section
65913.4, subdivision (a)(7)(C), is a question of statutory interpretation, a
legal issue we review de novo. (California Advocates for Nursing Home
Reform v. Smith (2019) 38 Cal.App.5th 838, 864.) Whether the Shellmound
exists on the project site is a question of fact. For the reasons stated above,
we find the highly deferential standard of review applied by the trial court
23
inappropriate here. It is unnecessary for us to further define the proper
standard because, as we will discuss, we find no evidence in the record that
the project “would require the demolition of a historic structure that was
placed on a . . . historic register.” (§ 65913.4, subd. (a)(7)(C).)
B.
Section 65913.4 does not define the term “structure.” Dictionary
definitions include “something (such as a building) that is constructed”
(Merriam-Webster Dict. Online (2021) [as of Apr. 20, 2021]), “something that
consists of parts connected together in an ordered way” and “something that
has been built” (Collins English Dict. Online (2021)
[as of
Apr. 20, 2021].) Black’s Law Dictionary (11th ed. 2019) defines “structure” as
“[a]ny construction, production, or piece of work artificially built up or
composed of parts purposefully joined together” and provides the illustration,
“a building is a structure.” Public Resources Code section 5024 (concerning
inventory and list of state-owned historical resources) defines “structure,” for
purposes of that section and Public Resources Code section 5024.5 (notice of
proposed actions affecting historical resources on master list), as “an
immovable work constructed by man having interrelated parts in a definite
pattern of organization and used to shelter or promote a form of human
activity and which constitutes an historical resource.” (Pub. Resources Code,
§ 5024, subd. (h).)14
14It is perhaps worth observing that the historical structure provision
appears within a section of the statute otherwise exclusively concerned with
potential demolition of housing:
24
Appellants maintain the Shellmound is not, and never has been, a
“structure,” only a “mound” or “heap” that was not “constructed with
interrelated parts in a definite pattern of organization.” More significantly,
they argue that even if the Shellmound was at some time in the past a
“structure,” what currently remains are no more than remnants that cannot
be viewed as a “structure” for purposes of section 65913.4.
Respondents quote the 2002 Cultural Resources Inventory’s description
of the Shellmound as having been “constructed continuously” between 3030
B.C. and 780 A.D. and statement that shellmounds were “repeatedly used as
both residential locales and long-term repositories for the dead, and perhaps
as socio-political centers.” Emphasizing that the “remaining portion of a
“(7) The development is not located on a site where any of the following
apply:
(A) The development would require the demolition of the following
types of housing:
(i) Housing that is subject to a recorded covenant, ordinance, or law
that restricts rents to levels affordable to persons and families of moderate,
low, or very low income.
(ii) Housing that is subject to any form of rent or price control through
a public entity’s valid exercise of its police power.
(iii) Housing that has been occupied by tenants within the past 10
years.
(B) The site was previously used for housing that was occupied by
tenants that was demolished within 10 years before the development
proponent submits an application under this section.
(C) The development would require the demolition of a historic
structure that was placed on a national, state, or local historic register.
(D) The property contains housing units that are occupied by tenants,
and units at the property are, or were, subsequently offered for sale to the
general public by the subdivider or subsequent owner of the property.”
(§ 65913.4, subd. (7)(A)–(D).)
25
cultural resource does not lose its value by virtue of the fact that a significant
portion of it has been destroyed,” respondents argue that the “historic
structure” provision in section 65913.4 demonstrates the Legislature did not
intend to “eviscerate historical preservation efforts,” including protection of
“relics” such as the “remainder” of the Shellmound.
Respondents urge us to construe section 65913.4, subdivision (a)(7)(C),
in pari materia with historic preservation statutes. “It is a basic canon of
statutory construction that statutes in pari materia should be construed
together so that all parts of the statutory scheme are given effect.
[Citations.] Two ‘ “[s]tatutes are considered to be in pari materia when they
relate to the same person or thing, to the same class of person[s] [or] things,
or have the same purpose or object.” ’ [Citations.]” (Lexin v. Superior Court
(2010) 47 Cal.4th 1050, 1090–1091.)
Respondents urge that historical preservation statutes “sweep broadly
in order to protect cultural resources, in whichever form the relic appears”
and we should construe section 65913.4, subdivision (a)(7)(C) the same way.
Their examples include title 43 of the Code of Federal Regulations
section 7.3, subdivision (a)(3)(i), which includes “subsurface structures” and
“middens” in the definition of “[a]rchaeological resource”;15 Health and Safety
Code section 18955, which defines “qualified historical building or structure,”
for purposes of the State Historical Building Code, as “any structure or
property, collection of structures, and their related sites deemed of
importance to the history, architecture, or culture of an area by an
appropriate local or state governmental jurisdiction”; and Government Code
section 37361, which provides that a city “may provide for places, buildings,
15 Contrary to respondents’ representation, the regulation does not
“defin[e] structures to include ‘subsurface structures,’ including ‘middens.’ ”
26
structures, works of art, and other objects, having a special character or
special historical or aesthetic interest or value, special conditions or
regulations for their protection, enhancement, perpetuation or use . . . .”
CVL, to the same end, advocates an interpretation of the term
“structure” that includes the site upon which a historical structure is or was
located. In addition to the examples provided by respondents, CVL points to
a provision in the CEQA Guidelines stating that “[a]ny object, building,
structure, site, area, place, record, or manuscript which a lead agency
determines to be historically significant or significant in the architectural,
engineering, scientific, economic, agricultural, educational, social, political,
military, or cultural annals of California may be considered to be an
historical resource” (Cal. Code. Regs., tit. 14, § 15064.5, subd. (a)(3)), and to
the National Historic Preservation Act, which defines “historic property” to
mean “any prehistoric or historic district, site, building, structure, or object
included on, or eligible for inclusion on, the National Register, including
artifacts, records, and material remains relating to the district, site, building,
structure, or object” (54 U.S.C. § 300308). CVL urges that the landmark
preservation provisions of the Berkeley Municipal Code refute appellants’
“attempt to isolate ‘structures’ from their surrounding ‘sites’ or ‘properties’ ”
by defining “structure of merit” as including “structures, sites and areas,
including single structures or sites, portions of structures, groups of
structures, man-made or natural landscape elements, works of art, or
integrated combinations thereof, having a special character, or special
historical, architectural or aesthetic interest or value.” (Berkeley Mun. Code,
§ 3.24.060.B.)
All these examples highlight the importance state and local
government has attached to historical preservation. But section 65913.4 is
27
not a historical preservation statute. In asking us to construe 65913.4,
subdivision (a)(7)(C), in pari materia with historical preservation statutes,
respondents and CVL seek to have statutes and regulations whose primary
purpose is to afford protection to historical and cultural resources dictate the
interpretation of a statute whose primary purpose is to expedite approval of
affordable housing developments. To be sure, the historic structure exception
in section 65913.4 indicates the Legislature did not intend to require
ministerial approval of affordable housing projects at the expense of all
historical preservation. It stated a limited exception, however, which
cautions against giving that exception its broadest possible meaning.
Moreover, the provisions that respondents and CVL see as requiring a
broad definition of the term “structure” in section 65913.4, subdivision
(a)(7)(C), do not in fact define that term. In fact, the examples point to
distinctions respondents and CVL attempt to elide, between “structure”
(which may or may not be a cultural resource) and “cultural resource” (which
may or may not be a structure), as well as between “structure” and “site.”
Respondents confuse the issue, for example, in misrepresenting the
California Supreme Court as having stated that “ ‘historic structures’ . . .
include ‘historical resources’ that are ‘historically or archaeologically
significant . . . or [are] significant in the cultural annals of California.’
(Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 186.)”
What the court actually said was the opposite—that “historical resource” may
include “structures”: “ ‘ “Historical resource” includes, but is not limited to,
any object, building, structure, site, area, place, record, or manuscript which
is historically or archaeologically significant, or is significant in the
architectural, engineering, scientific, economic, agricultural, educational,
28
social, political, military, or cultural annals of California.’ ” (Friends of Sierra
Madre, at p. 186, quoting Pub. Resources Code, § 5020.1.)
Without question, the Shellmound is an important historical and
cultural resource. But section 65913.4, subdivision (a)(7)(C), uses the term
“structure,” not “resource” or “site.” The Legislature is certainly aware of the
distinctions between these terms. Indeed, recent amendments to section
65913.4 add protections for “potential tribal cultural resources” that,
according to the legislative findings, were not included in Senate Bill 35 due
to the Legislature’s “oversight.”16 Assembly Bill No. 831 (Assembly Bill 831),
effective September 28, 2020, added to section 65913.4. provisions requiring
the local government to engage in “scoping consultation” with California
Native American tribes “traditionally and culturally affiliated with the
geographic area,” if requested by such a tribe upon notice of the intended
project application. (§ 65913.4, subd. (b); Stats. 2020, ch. 166, § 3, eff. Sept.
25, 2020; Stats. 2020, ch. 194, § 1.5, eff. Sept. 28, 2020.) These amendments,
in effect, permit a tribe to insist that a proposed project go through the
standard discretionary review process, requiring compliance with CEQA and
its provisions for tribal consultation (Pub. Resources Code, §§ 21080.3.1,
16 Assembly Bill 831 incorporated amendments made by Assembly Bill
No. 168 (Assembly Bill 168). (Stats. 2020, ch. 194, § 2.) The first two
legislative findings in Assembly Bill 168 stated, “(a) There was an oversight
in Senate Bill 35 (Chapter 366 of the Statutes of 2017), in that it did not
consider the potential destruction of tribal cultural resources, listed on
registers or potential. [¶] (b) The Legislature desires to correct that
oversight without losing any of the protections of the Assembly Bill 52
(Chapter 532 of the Statutes of 2014) process, which is contained within the
California Environmental Quality Act.” (Stats. 2020, ch. 166, § 1.)
29
21080.3.2) that would be avoided under the ministerial approval process.17
As amended, section 65913.4 thus protects “tribal cultural resources”
potentially threatened by a proposed project differently from “a historic
structure that was placed on a . . . historic register” and would be demolished
by a proposed project: The former may obtain ministerial approval if the
17 Under section 65913.4, as amended by Assembly Bill 831, if the tribe
and local government agree that “no potential tribal cultural resource would
be affected by the proposed development,” the application can proceed with
the ministerial approval process. (§ 65913.4, subd. (b)(2)(A).) If the tribe and
local government agree that a “potential tribal cultural resource could be
affected by the proposed development” and document an enforceable
agreement regarding “methods, measures, and conditions for tribal cultural
resource treatment,” the ministerial process can proceed and the local
government must ensure the agreement is included in the requirements and
conditions for the project. (§ 65913.4, subd. (b)(2)C).) If the parties do not
document such an agreement, the application is not eligible for the
ministerial process. (Ibid.)
The CEQA consultation process requires the lead agency to consult
with a California Native American tribe “traditionally and culturally
affiliated with the geographic area of the proposed project,” if requested by
such a tribe upon notice of the proposed project, prior to release of a negative
declaration, mitigated negative declaration or environmental impact report.
(Pub. Resources Code, § 21080.3.1, subd. (b).) If requested by the tribe, the
consultation must include alternatives to the project, recommended
mitigation measures or significant effects on tribal cultural resources. (Pub.
Resources Code, § 21080.3.2, subd. (a).) The consultation may include
“discussion concerning the type of environmental review necessary, the
significance of tribal cultural resources, the significance of the project’s
impacts on the tribal cultural resources, and, if necessary, project
alternatives or the appropriate measures for preservation or mitigation that
the California Native American tribe may recommended to the lead agency.”
(Ibid.) Consultation is considered concluded when either the parties agree to
measures to mitigate or avoid a significant effect on a cultural resource, if a
significant effect exists, or a party, acting in good faith, determines mutual
agreement cannot be reached. (Pub. Resources Code, § 21080.3.2, subd. (b).)
30
affected tribe does not object, while the latter is ineligible for ministerial
approval at all.
There is no evidence in the record that the Shellmound is now present
on the project site in a state that could reasonably be viewed as an existing
structure, nor even remnants recognizable as part of a structure. The
strongest evidence of any intact portion of the Shellmound on the site, and
the evidence to which the trial court pointed in upholding respondents’
decision, is the statement from Pastron’s 2000 study that material from the
six- to eight-foot layer of Boring #19, in the northwest quadrant of the project
site, “probably represents a remnant of CA-ALA-307.” But the remnant at
issue was at best a fragment of whatever structure once existed: The report
described the material as “gray/black, dry, densely compacted clayey silt,
containing a significant amount of mussel and clam shell fragments and little
oyster shell fragments, as well as some mammal bone” and noted, “[n]o tools
or other prehistoric artifacts encountered, nor were any other signs found
that this is assuredly part of CA-ALA-307.” In 2014, Pastron reported that
“[u]pon closer examination, we determined that Boring #19 probably did not
originally contain intact shellmound between 5 and 9 feet below surface level”
and that the “thin layer of crushed shell” was “most likely a redistributed
remnant of the West Berkeley Shellmound” and “not the intact shellmound
itself.”
These findings are consistent with the fact that, in designating the
Shellmound as a City landmark, the City designated not a structure per se
but a site—the three-block area in which the Shellmound was historically
located, including “the site itself and all items found subsurface including
artifacts from the earliest native habitation, such as but not limited to native
31
tools, ornaments, and human burials.”18 The section 65913.4, subdivision
(a)(7)(C) exception is for a “structure” placed on a historical register, not for a
site where a structure once existed.
Additionally, this exception is for a project that will “require demolition
of a historical structure.” There is no evidence in the record of a structure
that could be demolished by appellant’s project. There may well be remnants
and artifacts that could be disturbed, but that is not the issue under
section 65913.4, subdivision (a)(7)(C) of the statute. With regard to tribal
cultural resources, the DEIR for the 2015 project concluded impacts on the
Shellmound would be reduced to “a less-than-significant level” by the
mitigation measures appellants had agreed to, and appellants confirmed in
connection with the 2018 application that they intended to provide
“archeological and tribal monitoring during all ground-disturbing activities”
despite there being no requirement for CEQA compliance under
section 65913.4.
Respondents’ determination that appellants’ project would require
demolition of a historic structure that was placed on a historic register cannot
be upheld on this record.
C.
CVL argues that if we reverse the decision denying ministerial
approval, Assembly Bill 831’s tribal cultural resource protections should be
applied to the project despite the fact that they were not enacted until long
after appellants’ application, respondents’ denial and the trial court
18The Planning Department’s letter to appellants explaining its
analysis of the 2018 application acknowledges this point, referring to the
landmarked “area” and “site.”
32
proceedings.19 Respondents disagree: The City and the Department concur
with appellants that Assembly Bill 831 (and Assem. Bill 168) “are not at
issue and do not affect the outcome of the appeal,” as they were not in effect
when the City made its decision on the development application and
“[n]either AB 831 nor AB 168 include language that they were intended to
apply retroactively.’ ”
As all the parties recognize, “ ‘[g]enerally, statutes operate
prospectively only.’ ” (McClung, supra, 34 Cal.4th at p. 475, quoting Myers v.
Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 (Myers).) “[A]
statute that interferes with antecedent rights will not operate retroactively
unless such retroactivity be ‘the unequivocal and inflexible import of the
terms, and the manifest intention of the legislature.’ (United States v.
Heth (1806) 3 Cranch 399, 7 U.S. 399, 413; accord, Myers, supra, at p. 840.)
‘[A] statute may be applied retroactively only if it contains express language
of retroactivity or if other sources provide a clear and unavoidable implication
that the Legislature intended retroactive application.’ (Myers, supra, at
p. 844.)” (McClung, at p. 467.)
In CVL’s view, the newly added statutory provisions can be applied
here because they are procedural rather than substantive and, if they are
19 As earlier noted, CVL was not a recognized tribe at the outset of
these proceedings. (See fn. 7, ante, at p. 13.) We grant CVL’s request for
judicial notice of a September 11, 2019, letter from the Native American
Heritage Commission stating that as of August 12, 2019, CVL has met the
criteria to be included on its Tribal Consultation list. CVL is now entitled to
notice and an invitation to participate in a scoping consultation with regard
to applications for development under section 65913.4 in a geographic area
with which CVL is traditionally and culturally affiliated. (§ 65913.4, subd.
(b)(1)(A)(ii); Pub. Resources Code, § 21080.3.1.) Accordingly, CVL maintains
it has a right to participate in any such consultation conducted for appellants’
project.
33
considered substantive, it is clear the Legislature intended the new
provisions to apply retroactively. As to the former point, the California
Supreme Court has rejected the procedural/substantive distinction CVL
advances: “Some courts have thought changes categorized as merely formal
or procedural present no problem of retrospective operation. . . . California
has rejected this type of classification: ‘In truth, the distinction relates not so
much to the form of the statute as to its effects. If substantial changes are
made, even in a statute which might ordinarily be classified as procedural,
the operation on existing rights would be retroactive because the legal effects
of past events would be changed, and the statute will be construed to operate
only in futuro unless the legislative intent to the contrary clearly appears.’
[Citations.]” (Western Security Bank, supra, 15 Cal.4th at p. 244, fn. 4.) If
respondents’ denial of ministerial approval for appellants’ 2018 application
did not comply with section 65913.4 and appellants were in fact entitled to
approval under the statute at that time, it would manifestly alter “the legal
effects of past events” to now require them to start the application process
anew in order to provide an opportunity for tribal consultation that was not
part of the statutory process when the application was submitted, processed
and decided.
CVL argues that legislative intent to apply Assembly Bill 831 to all
unapproved projects is demonstrated by subdivision (b)(8) of section 65913.4,
which states that “[t]his subdivision shall not apply to any project that has
been approved under the streamlined, ministerial approval process provided
under this section before the effective date of the act adding this subdivision.”
According to CVL, this interpretation is necessary to avoid rendering the
provision superfluous: Without it, CVL maintains, because Assembly Bill
831 is “remedial and procedural in nature,” it would apply to all projects,
34
approved and unapproved, save only where such application would
unconstitutionally interfere with vested rights. CVL finds further evidence of
retroactive intent in the fact that the Legislature did not adopt an
amendment sought by opponents of Assembly Bill 831 that would have
“clarif[ied] that its provisions only apply to applications submitted after the
bills effective date” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 831 (2019-2020 Reg. Sess.) as amended Aug. 25,
2020, p. 9, italics added), and in references in the legislative history to the
need to “continue” to protect tribal cultural resources.
CVL’s view that expressly making Assembly Bill 381 non-retroactive for
approved projects clearly demonstrates intent to make it retroactive for all
unapproved ones ignores the difference between an application that has not
yet been decided and one that has been wrongly denied. Whatever the merits
of CVL’s retroactivity argument with regard to ministerial approval
applications pending prior to the effective date of Assembly Bill 831 (a
question this appeal does not present), it makes no sense, and would be
manifestly unfair, to say that a project which should have received
ministerial approval under the law in effect at the time it was denied must
begin the application process anew as a result of the local government
erroneously denying approval.20 If appellants’ application in fact satisfied the
statutory objective criteria, Berkeley’s refusal to approve the application
interfered with a constitutionally protected property interest which would be
20As appellants point out, CVL threatened to sue if Berkeley approved
the application under section 65913.4. Under this scenario, Assembly Bill
831 unquestionably would not have applied to the project. But, under CVL’s
reasoning, once the application was denied—even though erroneously—
Assembly Bill 831 would require appellants to start their application process
over upon successfully challenging the denial.
35
defeated if Assembly Bill 831 were applied retroactively. “When a person has
a legally enforceable right to receive a government benefit provided certain
facts exist, this right constitutes a property interest protected by due
process.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 207.) This
includes “a legitimate claim of entitlement to a permit or approval” where the
agency lacks discretion to withhold its approval (Clark v. City of Hermosa
Beach (1996) 48 Cal.App.4th 1152, 1180), as a local government does where
an application satisfies the objective criteria specified in section 65913.4.
The inference CVL draws from the Legislature’s failure to adopt a
proposed amendment that would have made Assembly Bill 831 inapplicable
to any application submitted prior to its effective date (rather than, as
enacted, any previously granted approval) is contrary to the rule that the
Legislature’s intent for a statute to apply retroactively must be “very clear.”
(Myers, supra, 28 Cal.4th at p. 841.) A Senate Housing Committee analysis
of Assembly Bill 168 noted that the bill provided the scoping consultation
process would not apply to a project that had been approved before the bill’s
effective date but was “not clear as to whether this process would apply to
pending SB 35 applications.” (Sen. Com. on Housing, Analysis of Assem. Bill
No. 168 (2019-2020 Reg. Sess.) as amended June 23, 2020, p. 10.) The
analysis stated, “The committee may wish to consider asking the author to
amend the bill on the Senate Floor to clarify that Assembly Bill 168 shall
apply to any pre-applications submitted to a local government as of the
effective date of the bill.” (Ibid.) Despite being so informed that the bill was
not clear as to retroactive application to pending development applications,
the Legislature did not alter the provision stating the new provisions were
not applicable to approved applications. “ ‘[A] statute that is ambiguous with
36
respect to retroactive application is construed . . . to be unambiguously
prospective. [Citations.]” (Myers, supra, 28 Cal.4th at p. 841.)
CVL’s reliance on comments in the legislative history advancing the
need to “continue” protections for tribal cultural resources is not persuasive.
Even CVL does not contend Assembly Bill 831 clarified existing law. The
Legislature obviously saw a need to make projects threatening tribal cultural
resources ineligible for ministerial approval and, with Assembly Bill 831,
intended to correct its failure to include such provisions in Senate Bill 35.
Statements such as “it is important that we continue to honor the
consultation process with Native American tribes and protect tribal cultural
resources” (Sen. Rules Com., Analysis of Assem. Bill No. 168, 3d Reading
(1019-2020 Reg. Sess.) as amended Aug. 25, 2020, pp. 8–9) and that the
author would work with stakeholders to craft language “to ensure that tribal
cultural resources continue to be protected” (Sen. Com. on Environ. Quality,
Analysis of Assem. Bill No. 168 (2019-2020 Reg. Sess.) as amended July 1,
2019, p. 7) simply underscore the fact that the protections sought to be added
to section 65913.4 existed prior to the enactment of Senate Bill 35 for
standard, discretionary development projects. For example, one of the
comments CVL quotes goes on to urge “restoring the right of tribal
governments to engage the development process under SB 35.” (Sen. Rules
Com., Analysis of Assem. Bill No. 168, 3d Reading (2019-2020 Reg. Sess.) as
amended Aug. 25, 2020, p. 9.)
CVL also argues that denying retroactive application of Assembly Bill
831 requires attributing to the Legislature an intent to “deprive California
tribes of the consultation procedures provided in CEQA for projects submitted
for SB 35 processing during the roughly three-year time period between the
effective date of SB 35 on January 1, 2018, and that of AB 831” on September
37
28, 2020. We disagree. Assembly Bill 831 was intended to correct an
oversight. In making its provisions inapplicable to projects previously
approved under section 65913.4, the Legislature demonstrated its recognition
that developers may have obtained protected interests in projects approved
meanwhile. That the Legislature allowed for some projects to proceed despite
not having been subjected to tribal consultation with respect to potentially
threatened cultural resources does not mean the Legislature intended to
“deprive” tribes of protections, only that it was also accounting for the
interests of those who relied upon section 65913.4 prior to Assembly Bill 831’s
effective date.
D.
Respondents argue that applying section 65913.4 in the present case
would impermissibly interfere with the City’s “home rule” authority over
historic preservation.
“Charter cities are specifically authorized by our state Constitution to
govern themselves, free of state legislative intrusion, as to those matters
deemed municipal affairs.” (State Building & Construction Trades Council of
California v. City of Vista (2012) 54 Cal.4th 547, 555 (State Building &
Construction).) To determine whether a matter comes within a charter city’s
home rule authority, we must determine four issues: “whether the city
ordinance at issue regulates an activity that can be characterized as a
‘municipal affair’ ”; whether there is “ ‘an actual conflict between [local and
state law]’ ”; “whether the state law addresses a matter of ‘statewide
concern’ ”; and “whether the law is ‘reasonably related to . . . resolution’ of
that concern” and “ ‘narrowly tailored’ to avoid unnecessary interference in
local governance.” (Id. at p. 556, quoting California Fed. Savings & Loan
Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16–17, 24 (California Fed.
38
Savings).) “ ‘If . . . the court is persuaded that the subject of the state statute
is one of statewide concern and that the statute is reasonably related to its
resolution [and not unduly broad in its sweep], then the conflicting charter
city measure ceases to be a “municipal affair” pro tanto and the Legislature is
not prohibited by article XI, section 5(a), from addressing the statewide
dimension by its own tailored enactments.’ ” (State Building & Construction,
at p. 556, quoting California Fed. Savings, at p. 17.)
The first three parts of the “home rule” test are not really in dispute.
First, respondents argue that protection of local landmarks is a classic
municipal affair akin to zoning, which is recognized to be a local matter.
(DeVita v. County of Napa (1995) 9 Cal.4th 763, 774 [adoption and
amendment of general plan is local, not statewide, concern]; Center for
Community Action & Environmental Justice v. City of Moreno Valley (2018)
26 Cal.App.5th 689, 704–705 [acknowledging “municipal nature” of planning
and zoning laws].) Section 37361, subdivision (b), authorizes cities to
“provide for places, buildings, structures, works of art, and other objects,
having a special character or special historical or aesthetic interest or value,
special conditions or regulations for their protection, enhancement,
perpetuation or use . . . . ” Appellants do not suggest local historical
preservation is not a municipal concern.
Second, there is an actual conflict between section 65913.4, subdivision
(a)(7)(C), and the City’s Landmark Preservation Ordinance. The City’s
municipal code authorizes the Commission to designate “structures, sites and
areas . . . having a special character, or special historical, architectural or
aesthetic interest or value” as a landmark or historic district (Berkeley Mun.
39
Code, § 3.24.060.A)21 and requires approval by the Commission for “any
construction, alteration, or demolition for which a City permit is required” in
a “designated landmark, in a designated historic district or structure of
merit . . . .” (Berkeley Mun. Code, § 3.24.200.) Approval “may be granted
only upon determination that the proposal conforms to” specified criteria,
which include that the proposed work will not “adversely affect the special
character or special historical, architectural or aesthetic interest or value of
the landmark and its site, as viewed both in themselves and in their setting.”
(Berkeley Mun. Code, § 3.24.260.C.1.a.) Government Code section 65913.4,
subdivision (a)(7)(C), conflicts with these provisions, as the statute would
allow construction in a designated landmark without requiring approval by
the Commission if the statutory criteria are satisfied. Respondents make no
argument to the contrary.22
Third, section 65913.4 patently addresses a matter of statewide
concern. As earlier described, the Legislature has repeatedly emphasized in
express findings and declarations that the lack of affordable housing in the
21 The code defines the Commission’s authority as extending to
“structures, sites and areas, including single structures or sites, portions of
structures, groups of structures, man-made or natural landscape elements,
works of art, or integrated combinations thereof, having a special character,
or special historical, architectural, or aesthetic interest or value.” (Berkeley
Mun. Code, § 3.24.060.A.) It defines “structure of merit” in the same terms:
“For the purposes of this chapter, structure of merit includes structures, sites
and areas, including single structures or sites, portions of structures, groups
of structures, man-made or natural landscape elements, works of art, or
integrated combinations thereof, having a special character, or special
historical, architectural or aesthetic interest or value.” (Berkeley Mun. Code,
§ 3.24.060.B.)
22 Respondents argue only that section 65913.4 as interpreted by the
trial court does not conflict with the City’s historical preservation authority,
because the trial court found section 65913.4 did not apply.
40
state is a crisis and that legislation including section 65913.4 and the HAA is
intended to address that crisis by encouraging and facilitating the
construction of housing in general and affordable housing in particular.
Although legislative declarations of intent to preempt local law are not
determinative (DeVita v. County of Napa, supra, 9 Cal.4th at p. 783), courts
“accord ‘great weight’ to the Legislature’s evaluation” of what constitutes a
matter of statewide concern (Baggett v. Gates (1982) 32 Cal.3d 128, 136) and
“ ‘defer to legislative estimates regarding the significance of a given problem
and the responsive measures that should be taken toward its resolution.’ ”
(City of El Centro v. Lanier (2016) 245 Cal.App.4th 1494, 1503, quoting
California Fed. Savings, supra, 54 Cal.3d at p. 24.)
As observed by the court in Anderson v. City of San Jose (2019) 42
Cal.App.5th 683, 709–710, judicial decisions have long “recognized the
statewide dimension of the affordable housing shortage in relation to various
impositions by the state into the realm of local affairs. (See Green v. Superior
Court (1974) 10 Cal.3d 616, 625, [citing ‘enormous transformation in the
contemporary housing market, creating a scarcity of adequate low cost
housing in virtually every urban setting’]; Buena Vista [(1985)]175
Cal.App.3d [289,] 306, [finding ‘need to provide adequate housing’ is a
statewide concern and rejecting home rule challenge to state provision that
mandated charter city to include certain actionable components in its
‘housing element’]; Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 22
[‘locally unrestricted development of low cost housing is a matter of vital
state concern’]; Coalition Advocating Legal Housing Options v. City of Santa
Monica (2001) 88 Cal.App.4th 451, 458 (City of Santa Monica) [noting the
Legislature and courts have declared housing to be a matter of statewide
concern].)”
41
The statewide nature of the issue is reflected in the manner by which
the Legislature has attempted to address it. Under the Housing Element
Law, the state’s existing and projected housing need is determined by the
California Department of Housing and Community Development on a
regional basis (§ 65584.01); regional councils of governments allocate the
need to individual localities (§ 65584.05); and each locality must develop a
plan of action (the housing element) for meeting its share of the regional
housing need, including rezoning if necessary. (§§ 65583, subd. (c), 65583.2,
65584.05, 65588.) Section 65913.4 applies only if a city fails to meet its
RHNA goals. (§ 65913.4, subd. (a)(4).)
Section 65913.4 addresses the crisis level statewide lack of affordable
housing by eliminating local discretion to deny approval where specified
objective planning criteria are met, consistent with the legislative statement
of intent, in the contemporaneous amendments to the HAA, 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 and emergency shelters,” which
intent had “not been fulfilled” despite prior versions of the HAA. (§ 65589.5,
subd. (a)(2)(K).) It is difficult to think of any way the subject and purpose of
this statute could be seen as anything other than a matter of statewide
concern.
Respondents do not dispute this. They argue, however, that this
statewide interest in increasing the amount and availability of affordable
housing does not “automatically translate into a statewide interest in
eliminating local landmark preservation authority” and the Legislature “has
not expressed any interest in overriding charter cities’ historic preservation
42
authority.” This framing of the issue is inapposite: The question is whether
the purpose of the ministerial approval statute is a matter of statewide
concern, not whether there is a statewide interest in a specific impact it has
on a municipal function. That is, the constitutionality of section 65913.4 does
not turn on there being a statewide interest in limiting local historical
preservation authority but rather on whether the statewide interest in
increasing affordable housing sufficiently justifies the legislation’s impact on
that authority.
Respondents cite Fielder v. City of Los Angeles (1993) 14 Cal.App.4th
137 as an example of a statewide interest that “did not translate” to a
statewide interest in overriding municipal authority. Fielder held that state
legislation prohibiting local governments from imposing real estate transfer
taxes did not prevent a city from imposing such a tax. The court recognized
that due to “escalating ad valorem property tax rates and inflationary
increases in assessed valuation,” “easing the burden of property taxation” had
been a matter of legislative concern for many years. A citywide transfer tax,
however, would have no impact on “remediation of the recognized evils which
undergird the state’s interest in controlling ad valorem real property
taxation” because it was a one-time burden on the “privilege of disposing of
one’s property and realizing its actual . . . value” that did not “upset the
delicate balance of a vulnerable group of citizens in the manner that local
variations in the ad valorem property tax rate or assessment practices
would.” (Id. at p. 145.) Applying the principle that “ ‘ “the sweep of the
state’s protective measures may be no broader than its interest” ’ ” (id. at
p. 146, quoting California Fed. Savings, supra, 54 Cal.3d at p. 25), Fielder
concluded that the transfer tax was “purely local in its effects” and not a
matter of statewide concern, and the statute’s “substantial interference in
43
[the city’s] ability to levy an excise tax far exceed[ed] the state’s interest in
regulating ad valorem property taxes.” (Fielder, at p. 146.)
The present case does not involve any such mismatch between the state
interest purportedly justifying interference with local authority and the
subject of municipal authority with which the statute interfered. Here, the
City’s ability to exercise discretion over development on a City landmarked
site directly interferes with the purpose of section 65913.4 to the extent an
affordable housing project on this site would otherwise meet the criteria for
ministerial approval. The relevant question is whether the statute is
reasonably related to resolving the statewide interest it addresses and does
not unduly interfere with the City’s historical preservation authority. (State
Building & Construction, supra, 54 Cal.4th at p. 556.)
There is clearly a “direct, substantial connection” between section
65913.4 and the Legislature’s purpose of expediting and increasing approvals
of affordable housing developments. The ministerial approval statute was
intended to decrease delays and local resistance to such developments, and
does so by removing local governments’ discretion to deny applications for
affordable housing developments meeting specified objective criteria. Its
interference with local governance is narrowed, first, by the fact that it
applies only if the city has failed to meet its RHNA obligations. (§ 65913.4,
subd. (a)(4).) The many detailed requirements for application of the statute
further demonstrate its relatively narrow scope.23
23In brief, the development site must be in a highly urbanized area
(§ 65913.4, subd. (a)(2)(A) & (B)) and must not be in a number of specified
locations, including a coastal zone, specified farmland, or land subject to
agricultural protection or preservation, wetlands, designated high fire hazard
zone, designated hazardous waste site, earthquake fault zone, special flood
hazard area, regulatory floodway, land subject to a natural resource
44
Respondents’ position, in essence, is that the Legislature has
overreached because its interest in increasing affordable housing can be
accomplished without interfering with local authority over historical
preservation. But historical preservation is precisely the kind of subjective
discretionary land use decision the Legislature sought to prevent local
government from using to defeat affordable housing development. The
Legislature long ago called attention to the role of local governments in
contributing to the “excessive cost of the state’s housing supply” with
“activities and policies . . . which limit the approval of affordable
housing . . . .” (§ 65589.5, former subd. (a)(2), now subd. (a)(1)(B)), added by
Stats. 1990, ch. 1439, § 1.) In 2017, the Legislature expressed obvious
frustration in its findings that “California’s housing picture has reached a
crisis of historic proportions despite the fact that, for decades, the Legislature
has enacted numerous statutes intended to significantly increase the
approval, development, and affordability of housing for all income levels,
including this section” (§ 65589.5, subd. (a)(2)(J)) and that “the Legislature’s
intent in enacting [section 65589.5] in 1982 and in expanding its provisions
since then was to significantly increase the approval and construction of new
protection plan, habitat for protected species, or land under a conservation
easement (§ 65913.4, subd. (a)(6)) or subject to specified laws governing
mobile home and recreational vehicle occupancy (§ 65913.4, subds. (a)(10));
the development must not require demolition of specified housing or of a
historical structure that was placed on a historic register (§ 65913.4, subd.
(a)(7)), must be consistent with existing objective zoning, subdivision and
design review standards (§ 65913.4, subd. (a)(5), (a)(9)), must include
specified percentages of affordable housing, which must remain at affordable
levels for a set duration (45 years for owned units, 55 years for rental units)
(§ 65913.4, subds. (a)(3)(A), (a)(4)(B)), and must comply with specified
requirements for payment of at least the prevailing wage for the geographic
area and use of a skilled and trained workforce for construction (§ 65913.4,
subds. (a)(8), (a)(9)).
45
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 and emergency shelters. That intent has not been fulfilled.”
(§ 65589.5, subd. (a)(2)(K), added by Stats. 2017, ch. 378, § 1.5.)
As we have discussed, we view the legislative findings contained in
section 65589.5 as relevant in construing section 65913.4, which was enacted
at the same time as the 2017 amendments to section 65589.5 and deals with
an aspect of the same issue. With respect to appellants’ project and the City
landmarked Shellmound site, in light of the Legislature’s long history of
attempting to address the state’s housing crisis and frustration with local
governments’ interference with that goal, and the highly subjective nature of
historical preservation, the intrusion of section 65913.4 into local authority
over such preservation is not broader than necessary to achieve the purpose
of the legislation.24
We conclude the trial court erred in denying appellants’ petition
pursuant to section 65913.4, subdivision (a)(7)(C).
II.
The second basis upon which the trial court denied appellants’ petition
for writ of mandate was that section 65913.4 does not apply to mixed-use
developments. The court noted that the only mention of commercial or
mixed-use development in section 65913.4 is in subdivision (a)(2)(C), which,
as enacted in 2017 and in effect throughout the proceedings below, provided:
24 As the present case involves the City’s historical preservation
authority only with regard to the Shellmound and its site, we have no
occasion to consider the validity of any intrusion section 65913.4 might make
into local historical preservation authority over other historical and cultural
resources.
46
“The development is located on a site that satisfies all of the following:
[¶] . . . [¶] A site that is zoned for residential use or residential mixed-use
development, or has a general plan designation that allows residential use or
a mix of residential and nonresidential uses, with at least two-thirds of the
square footage of the development designated for residential use.”25
Rejecting appellants’ view that the two-thirds requirement “relates to a
proposed project rather than to a site for a proposed project,” the trial court
read this language as “provid[ing] restrictions as to sites on which a project
can be located and still be eligible for SB 35 streamlined approval,” limiting
streamlined approval to projects on “mixed-use sites which require minimum
two-thirds residential use.”26
25 As amended by Assembly Bill 831, paragraph (2)(C) of section
65913.4, subdivision (a), now provides: “(2) The development and the site on
which it is located satisfy all of the following: [¶] . . . [¶ (C) It is zoned for
residential use or residential mixed-use development, or has a general plan
designation that allows residential use or a mix of residential and
nonresidential uses, and at least two-thirds of the square footage of the
development is designated for residential use.” (Stats. 2020, ch. 194, § 1.5,
italics added.)
26 The court explained its conclusion as follows: “The court reads the
last phrase of the subsection as a subordinate clause that acts to modify the
immediately preceding independent clause that is, it describes a general plan
designation with a mixed-use provision, limiting the applicable SB 35 sites to
mixed-use sites which require minimum two-thirds residential use by square
feet. Another textual clue is that SB 35 applies only when the project is a
‘multifamily housing development.’ (Gov. Code, § 65913.4, subd. (a)(l).) The
context and structure of the mixed-use zoning provision also indicate that the
two-thirds proviso is part of a restriction on ‘the site’ rather than the
development project itself. (Gov. Code, § 65913.4, subd. (a)(2) [‘The
development is located on a site that satisfies all of the following . . .’]; c.f.,
e.g., § 65913.4(a)(6), (a)(7), (a)(10) [listing other requirements and restrictions
on the site of the development project].) When the authors of SB 35 wanted
to place limitations on the development project itself rather than its site, they
47
A.
Appellants first contend the trial court erred in denying their writ
petition on this basis because it was not one of the reasons the City provided
for its denial of ministerial approval. Section 65913.4 requires that if a local
government determines a proposed development “is in conflict with any of the
objective planning standards specified in subdivision (a), it shall provide the
development proponent written documentation of which standard or
standards the development conflicts with, and an explanation for the reason
or reasons the development conflicts with that standard or standards”
(§ 65913.4, former subd. (b)(1), now subd. (c)(1)) and, if it fails to do so, “the
development shall be deemed to satisfy the objective planning standards
specified in subdivision (a).” (§ 65913.4, former subd. (b)(2), now subd. (c)(2).)
As earlier described, the Department’s 90-day letter informed
appellants that Senate Bill 35 did not apply to the project “to the extent it
impinges on legitimate municipal affairs (preservation of a designated City
landmark)” but nevertheless provided the department’s analysis of each of
the statutory objective standards and its determination that several
components of the application were inconsistent with the criteria for
streamlined approval or that further information was needed. The conflicts
specified in the letter were with the statutory requirement for consistency
expressly described the requirement as one that the ‘development satisfies’
rather than one that the site satisfies. (See, e.g., § 65913.4(a)(4) [‘The
development satisfies both of the following’ affordable housing minimums],
(a)(5) [The development . . . is consistent with objective zoning standards,
objective subdivision standards, and objective design review
standards . . . .’ ”)
48
with objective zoning and design review standards (§ 65913.4, subd. (a)(5))27
and with the requirement that the development not require demolition of a
historic structure (§ 65913.4, subd. (a)(7)(C)). Other potential conflicts were
identified. The analysis of section 65913.4, subdivision (a)(2)(C), did not
indicate any inconsistency.28
Appellants contend that because respondents failed to identify any
conflict with section 65913.4, subdivision (a)(2)(C), in the 90-day letter, the
project had to be deemed to comply with that standard pursuant to section
65913.4, former subdivision (b), now subdivision (c). Furthermore, appellants
argue the trial court erred in upholding the denial on a basis not relied upon
by respondents in denying ministerial approval. “ ‘ “[A]n agency’s order must
be upheld, if at all, ‘on the same basis articulated in the order by the agency
itself.’ ” ’ (Pacific Gas & Electric Co. v. Public Utilities Com. (2000) 85
Cal.App.4th 86, 96; see Securities and Exchange Comm’n v. Chenery
Corp. (1947) 332 U.S. 194, 196.)” (New Cingular Wireless PCS, LLC v. Public
Utilities Com. (2016) 246 Cal.App.4th 784, 820.)
27 Regarding the zoning and design conflicts, the letter directed, “See
Attachment A for additional explanation.” Attachment A, entitled “Objective
City of Berkeley Standards Applicable to the 1900 Fourth Street Project,”
sets out numerous standards from the Berkeley Municipal Code and General
Plan, with the City’s analysis of conflicts and potential conflicts.
28 With respect to section 65913.4, subdivision (a)(2)(C), the letter
stated: “City analysis: Zoning District CW West Berkeley Commercial
District Permitted uses include mixed-use developments incorporating
residential and retail or residential use and other permitted use Berkeley
Municipal Code Chapter 23E64. The site is designated Avenue Commercial
with a Development Node overlay in the Berkeley General Plan. The site is
also designated General Commercial within the West Berkeley Plan and is
subject to Urban Design and Preservation Element policies protecting
culturally important sites.”
49
Respondents assert they fully complied with their obligation under
section 65913.4 to inform appellants of any conflict with objective planning
standards and maintain their contention that the statute does not apply to
mixed-use projects is a legal argument which was not required to be included
in the June 2018 letter. This position is puzzling, as the first point made in
the letter was a legal argument—that section 65913.4 did not apply to the
project because the statute impinged on municipal affairs with regard to
preservation of a designated City landmark. It also defies at least the spirit,
if not the letter, of section 65913.4, subdivision (b)(1)), which requires local
governments to carefully explain any determination that a proposed
development conflicts with “any of the objective planning standards specified
in subdivision (a).” (§ 65913.4, former subd. (b)(1), now subd. (c)(1).) Section
65913.4, subdivision (a)(2)(C), is one such standard. Respondents’ 90-day
letter gave appellants no notice that the City believed there was any conflict
with respect to the mixed-use aspect of their application.
In any event, this point is ultimately inconsequential. It is clear to us
that the trial court misinterpreted section 65913.4, subdivision (a)(2)(C), and
that the ministerial approval statute does apply to mixed-use developments
that meet its criteria. Regardless of whether the project should be deemed
consistent with section 65913.4, subdivision (a)(2)(C), due to the
Department’s failure to raise any conflict with that provision in its June 2018
letter, the record confirms that under a proper reading of the statute, the
project is consistent with the standard.
B.
Respondents argue that nothing in section 65913.4 authorizes its
application to mixed-use projects. They describe 65913.4 as containing
project-specific, site-specific, development-specific and applicant-specific
50
requirements, and point out that the project-specific requirement for “a
multifamily housing development that contains two or more residential
units” (§ 65913.4, subd. (a)(1)) says nothing about mixed uses. The only
reference to mixed-use appears in subdivision (a)(2), which at the time of the
application, administrative decision and trial, began, “The development is
located on a site that satisfies all of the following . . .” Consequently, in
respondents’ view, subdivision (a)(2)(C) must be read as requiring that the
site for the proposed project be zoned for, or have a general plan designation
allowing, residential use or residential mixed-use development, with the
zoning or general plan designation also mandating that at least two-thirds of
the square footage of any development be designated for residential use.
This is a strained and unreasonable reading of the statutory language
that makes no sense in light of the statute’s purpose. Section 65913.4
consistently uses “the development” to refer to the project that is the subject
of an application for ministerial approval. (E.g., § 65913.4, subds. (a)(5) [“The
development . . . is consistent with objective zoning standards . . .”]; (a)(6)
[“The development is not located on a site that is any of the following . . .”],
italics added.) On the other hand, the statute uses “a development” when
referring to development projects generally. (E.g., § 65913.4, subds. (a)
[“A development proponent may submit an application for a development that
is subject to the streamlined, ministerial approval process . . .”]; (a)(5)(B)
[“A development shall be deemed consistent with the objective zoning
standards . . . if . . .”]; (b)(1) [“[i]f a local government determines that a
development submitted pursuant to this section is in conflict with any of the
objective planning standards . . . it shall provide the development proponent
with . . .”], italics added.) Reading “the development” in subdivision (a)(2)(C)
as referring to any development rather than the subject of a particular
51
application would be inconsistent with the otherwise clear pattern in the
statutory language.
Moreover, respondents’ interpretation would be inconsistent with the
purpose of section 65913.4 to encourage and expedite the processing of
affordable housing projects. The statute expressly directs that it be
“interpreted and implemented in a manner to afford the fullest possible
weight to the interest of, and the approval and provision of, increased
housing supply.” (§ 65913.4, former subd. (l), now subd. (n).)29 Respondents’
interpretation would discourage development of affordable housing by
limiting the applicability of the streamlined approval process to projects on
sites with a minimum residential requirement for mixed-use developments
even if the development itself is at least two-thirds residential. Here,
respondents’ interpretation would make the proposed project ineligible for
ministerial approval despite it being 88 percent residential and located on a
site zoned for mixed uses.
Subdivision (a)(2)(C) of section 65913.4 is far more naturally read—
semantically and logically—as requiring that the site for a proposed
development be zoned for, or have a general plan designation allowing, either
residential or mixed-use, and that at least two-thirds of the proposed
development must be residential.
This interpretation is consistent with the HAA, which defines
“[h]ousing development project” as “a use consisting of . . . [¶] “[r]esidential
units only” or “[m]ixed-use developments consisting of residential and
nonresidential uses with at least two-thirds of the square footage designated
for residential use.” (§ 65589.5, subd. (h)(2).) The two-thirds residential
29 Subdivision (l) was added to section 65913.4 as part of amendments
effective January 1, 2019. (Stats. 2018, ch. 840, § 2.)
52
requirement was added to section 65589.5 (effective Jan. 1, 2018) by
amendments filed with the Secretary of State on the same date as Senate
Bill 35. (Stats. 2017, ch. 368, § 1.5; Stats. 2017, ch. 373, § 1.5; Stats. 2017,
ch. 378, § 1.5.) As statutes in pari materia, addressing the same subject and
advancing the same goal, sections 65589.5 and 65913.4 should be construed
together. (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1090.) The
language used in section 65589.5 to describe the type of mixed-use
development meeting the statutory definition of “housing development
project”—“with at least two-thirds of the square footage designated for
residential use”—is precisely that used in section 65913.4, subdivision
(a)(2)(C), with reference to mixed-uses. This is a strong indication the phrase
was intended as a limitation on the type of development subject to ministerial
approval, not the site upon which the development is located.
Indeed, this was the interpretation adopted by the City Manager,
whose explanation to the City Council of the project application and
requirements of section 65913.4, stated, with respect to subdivision (a)(2)(C):
“Zoning and Residential Uses. The development must be located on a legal
parcel or parcels that are zoned for residential uses. At least 2/3 of the floor
area of the proposed building must be dedicated to residential uses.” It is
also the interpretation accorded by the DHCD Guidelines, which were issued
pursuant to the authority granted by section 65913.4, former subdivision (i),
now subdivision (l).30 Respondents argue the DHCD Guidelines are
30“The department may review, adopt, amend, and repeal guidelines to
implement uniform standards or criteria that supplement or clarify the
terms, references, or standards set forth in this section. Any guidelines or
terms adopted pursuant to this subdivision shall not be subject to Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code.” (§ 65913.4, former subd. (i), now subd. (l).)
53
inapplicable to this case because they issued on November 19, 2018,
subsequent to the Department’s June 2018 letter, and expressly state that
they apply to applications submitted on or after January 1, 2019 (DHCD
Guidelines, § 101(b)). Even if not directly applicable, however, it is worth
observing that our interpretation is consistent with that of the agency
charged with clarifying the terms and standards set forth in section 65913.4.
The DHCD Guidelines state that “[t]o qualify to apply for the Streamlined
Ministerial Approval Process,” “[a]t least two-thirds of the square footage of
the development shall be designated for residential use.” (DHCD Guidelines,
§ 400(b).)31
Our interpretation is confirmed by subsequent amendments to section
65913.4. Assembly Bill No. 101 (Assembly Bill 101), effective July 31, 2019,
added a sentenced to subdivision (a)(2)(C) of section 65913.4 that can only
refer to a specific proposed development: “Additional density, floor area, and
units, and any other concession, incentive, or waiver of development
standards granted pursuant to the Density Bonus Law in Section 65915 shall
be included in the square footage calculation.” (Stats. 2019, ch. 159, § 8.)
“Density bonus” refers to an increase over the otherwise maximum allowable
residential density which must be granted when the applicant for a housing
development agrees to provide a certain amount of low-income (or other
specified types of) housing, and is calculated for a given housing development
based upon the percentage of units of the specified type in that development.
31 The Guidelines further state that “[b]oth residential and non-
residential components of a qualified mixed-use development are eligible for
the Streamlined Ministerial Approval Process. Additional permitting
requirements pertaining to the individual business located in the commercial
component (e.g. alcohol use permit or adult business permit) are subject to
local government processes.” (DHCD Guidelines, § 400(b).)
54
(§ 65915, subds. (b)(1), (f).) The amendment’s directive regarding calculation
of square footage would make no sense if the two-thirds requirement was for
zoning; without a specific proposed development, there would be no density
bonus and concessions to calculate. The Legislative Counsel’s Digest—which
is entitled to “great weight” (Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1170)—explained that existing law “authorizes a
development proponent to submit an application for a housing development
that is subject to a streamlined, ministerial approval process . . . if the
development satisfies specified objective planning standards,” one of which is
that “at least 2/3 of the square footage of the development be designated for
residential use,” and Assembly Bill 101 “would require that the calculation to
determine whether 2/3 of the square footage of the development is designated
for residential use include additional density, floor area, and units, and any
other concession, incentive, or waiver, granted pursuant to the Density Bonus
Law.” (Legis. Counsel’s Dig., Assem. Bill No. 101 (2019-2020 Reg. Sess.)
par. (4).)
Similarly, the Legislative Counsel’s Digest for Assembly Bill 1485
(Stats. 2019, ch. 663, § 1; Stats. 2019, ch. 844, § 5.3), which specified that
calculation of the development’s square footage does not include underground
space, stated, “Existing law requires that at least 2/3 of the square footage of
a development receiving approval pursuant to these provisions must be
designated for residential use. [¶] This bill would provide that ‘square
footage,’ for these purposes, does not include underground space, such as
basements or underground parking garages.” (Legis. Counsel’s Dig., Assem.
Bill No. 1485 (2019-2020 Reg. Sess.) par. (2).)
Finally, Assembly Bill 831 amended section 65913.4, subdivision
(a)(2)(C), to read: “(2) The development and the site on which it is located
55
satisfy all of the following: [¶] . . . [¶] (C) It is zoned for residential use or
residential mixed-use development, or has a general plan designation that
allows residential use or a mix of residential and nonresidential uses, and at
least 2/3 of the square footage of the development is designated for
residential use.” (Italics added.) This simple change of language removes
any reasonable doubt that the 2/3 requirement applies to the development
submitted for approval and not the zoning applicable to the site.
According to the bill’s author, “AB 831 clarifies that the 2/3 residential
requirement in SB 35 applies only to a project and not the project’s site or its
zoning.” (Sen. Com. on Housing, Analysis of Assem. Bill No. 831 (2019-2020
Reg. Sess.) as amended July 21, 2020, p. 4.) In fact, this clarification appears
to have been occasioned by the trial court’s decision in the present case. The
committee report further explains: “Clarifying the 2/3 requirement. SB 35
provides that 2/3 of a project must be residential (i.e. authorizes certain
mixed-use projects) to qualify for streamlined approval. In its guidelines,
HCD interprets the language this way. Recently in an SB 35 lawsuit, a
superior court judge interpreted SB 35 streamlining to apply only to mixed-
use projects in the narrow circumstance where the site’s zoning calls for at
least 2/3 residential. According to the sponsors, there is likely not a zoning
district in the state that would meet this requirement. This bill clarifies the
author’s intent that the 2/3 residential requirement apply to the proposed
project itself, not the zoning.” (Sen. Com. on Housing, Analysis of Assem.
Bill No. 831 (2019-2020 Reg. Sess.) as amended July 21, 2020, p. 6.)
Respondents argue these amendments are inapplicable to the present
case because they were adopted and became effective subsequent to the
denial of ministerial approval. But “a statute that merely clarifies, rather
than changes, existing law does not operate retrospectively even if applied to
56
transactions predating its enactment.” (Western Security Bank, supra,14 Cal.4th at p. 243.) The 2019 amendments addressed how to calculate the
square footage specified in subdivision (a)(2)(C) of section 65913.4; they did
not change the underlying requirement that “at least two-thirds of the square
footage of the development” be designated for residential use. The 2020
amendment made a non-substantive change in language that served only to
clarify the statute in response to a court’s decision. The amendments did not
“change the legal effect of past actions” (Western Security Bank, at p. 252)
and therefore can properly be applied to this case. They demonstrate
unequivocally what the language of the statute, in our view, indicated all
along: that the ministerial approval statute applies to mixed-use
developments that designate at least two-thirds of their square footage to
residential use.
Here, the application specified that the residential area of the
development would occupy 88 percent of the space (254,888 gross square feet
of the project’s total 286,809 square feet). It thus satisfied the requirement
that at least two-thirds of the total square footage be designated for
residential use.
C.
Respondents further argue that applying section 65913.4 to mixed-use
developments interferes with the City’s home rule authority to regulate
commercial uses. The Berkeley Municipal Code requires a use permit, with
public hearing, where the retail space in a mixed-use development comprises
20,000 square feet or more. (Berkeley Mun. Code, § 23E.64.030.) The 2018
application describes the proposed project as including approximately 27,500
square feet of retail space and parking. Because section 65913.4, subdivision
(a), provides for a ministerial approval process under which the proposed
57
development “is not subject to a conditional use permit,” respondents
maintain it interferes with charter cities’ traditional land use authority to
determine whether particular commercial uses should be subject to
appropriate conditions of approval such as security measures, hours of
operations, noise restrictions, light pollution and emissions controls.
“ ‘Land use regulation in California has historically been a function of
local government under the grant of police power contained in California
Constitution, article XI, section 7.’ [Citation.]” (DeVita v. County of Napa,
supra, 9 Cal.4th at p. 782; IT Corp. v. Solano County Bd. of
Supervisors (1991) 1 Cal.4th 81, 89 [“The power of cities and counties to zone
land use in accordance with local conditions is well entrenched.”].)
Respondents argue that the Legislature’s interest in increasing the supply of
affordable housing does not require it to intrude upon local authority over
commercial uses, and the Legislature has not expressed any intention to
preempt local authority over such uses.
The extent to which section 65913.4 interferes with local regulation of
commercial uses appears to be fairly minimal, and incidental to the statute’s
purpose of facilitating development of affordable housing. While the overall
“multifamily housing development” eligible for ministerial approval is not
subject to a conditional use permit, nothing in section 65913.4 requires or
allows ministerial approval of a development that includes commercial uses
conflicting with local zoning. To the contrary, to be eligible for ministerial
approval, the proposed development must be “consistent with objective
zoning standards, objective subdivision standards, and objective design
review standards” established by the locality. (§ 65913.4, subd. (a)(5).)
Nothing in section 65913.4 exempts the businesses that would occupy the
commercial portion of appellants’ project from permit and licensing
58
requirements for their particular operations. In light of the limited extent of
any intrusion into municipal authority over commercial uses, and narrowly
delineated circumstances in which section 65913.4 applies, we conclude the
statute—which, as we have said, is reasonably related to resolving the
statewide interest in alleviating delays and obstacles to development of
affordable housing projects—does not unduly interfere with the City’s land
use authority. (State Building & Construction, supra, 54 Cal.4th at p. 556.)
III.
Respondents additionally denied ministerial approval due to asserted
conflicts with “objective zoning standards, objective subdivision standards,
and objective design review standards in effect at the time that the
development is submitted to the local government pursuant to this section”
(§ 65913.4, subd. (a)(5)). Respondents found two such conflicts, one with the
City’s AHMF requirements with respect to very low-income units (§ 65913.4,
subd. (a)(5)), and the other with the City’s requirement that the project meet
applicable performance standards for off-site impacts and not exceed the
amount and intensity of use that can be served by available traffic capacity
(Ibid.).
A.
The stated purpose of the City’s AHMF is to mitigate the impacts of
new market-rate rental units on the need for affordable housing. (Berkeley
Mun Code, § 22.20.065.A.8.) Berkeley Municipal Code section 22.20.065.C
requires the AHMF, or a portion of it, to be paid if a development does not
provide 20 percent of the total units at rates affordable to low and very low-
59
income households,32 with 50 percent of the below market rate units
affordable to very low-income households. Appellants’ project includes 50
percent low-income units—considerably more than the 20 percent total below
market rate units required by the municipal code. Respondents denied the
project application on the ground that the proposed project failed to comply
with the “objective requirements” of the AHMF ordinance in that it does not
include any very low-income units, appellants claimed they were exempt from
the fee requirement but had not formally requested an exemption and “the
City cannot accept an application that summarily declares that the AHMF
will not be paid.”33
Appellants contend the AHMF ordinance cannot be used as a basis for
denial of their application for ministerial approval because section 65913.4
requires ministerial approval for a project meeting the specified objective
32“Low-income household” is defined as household income of no more
than 80 percent of the area median income (AMI) (Berkeley Mun. Code,
§ 22.20.065.B.4); “very low-income household” is defined as household income
of no more than 50 percent of AMI (Berkeley Mun. Code, § 22.20.065.B.7).
33 The September 2018 denial letter stated, “Municipal Code Section
22.20.065 requires that applicants for rental housing projects either pay the
specified AHMF or designate a percentage of the proposed housing units as
affordable to low-income (“LI”) and very low-income (“VLI”) households. The
Project application asserts that ‘the Project is exempt from the City’s
affordable housing mitigation fee at this time . . . by providing 50 of its units
for low-income households.’ . . . However, the application does not provide
the requisite number of VLI units that are required by Municipal Code
Section 22.20.065.C.4, nor have you undertaken any formal process to
request an exemption from the AHMF. Thus, you have not established that
the Project is exempt from the AHMF, and the City cannot accept an
application that summarily declares that the AHMF will not be paid. The
development application thus fails to comply with the objective requirements
of Municipal Code Section 22.20.065, rendering SB 35 inapplicable to the
Project.”
60
planning standards, and a mitigation fee is not a standard. As appellants
observe, the development and site characteristics and requirements described
in section 65913.4 as “objective planning standards,” and the statute’s
requirements for consistency with “objective zoning standards, objective
subdivision standards, and objective design review standards,” refer to
objective criteria or benchmarks a given development may or may not satisfy.
(See Merriam-Webster Dict. Online, supra, [as of Apr. 20, 2020] [a standard is
“something set up and established by authority as a rule for the measure of
quantity, weight, extent, value, or quality or point of reference”].) A
mitigation fee does not establish such a criterion: It is a “monetary exaction”
imposed to “defray the cost of public facilities needed to serve the growth
caused by the project.” (Boatworks, LLC v. City of Alameda (2019) 35
Cal.App.5th 290, 294.)
Respondents obscure the issue with subtle mischaracterizations of both
appellants’ argument and the AHMF ordinance. According to respondents,
appellants “contend that the 2018 Application satisfied the Affordable
Housing Mitigation Fee Ordinance,” which respondents describe as requiring
that at least 50 percent of affordable units be set aside for very low-income
households “unless the developer opts instead to pay a mitigation fee.” But
appellants have never claimed to satisfy the ordinance; they maintain they
are not required to satisfy it. And the ordinance imposes a mitigation fee on
new rental housing development which the applicant “may elect to avoid” by
providing the requisite amount of affordable housing. (Berkeley Mun. Code,
§ 22.20.065.C.2.) By reversing the direct object of the ordinance and its
provision of an alternative to avoid that object, respondents are able to argue
that appellants did not meet the “objective criterion” established by the
61
ordinance and, therefore, the application for ministerial approval could be
denied.
The AHMF itself, as opposed to the provision of sufficient affordable
housing to avoid it, is not a “standard” with which a proposed development
can be inconsistent. The decision whether to pay the fee or avoid it by
providing the required number and type of housing is not required at the
time of application; the election may be made until the date the first building
permit for the development is issued. The fee must be paid “at the issuance
of a Certificate of Occupancy.” (Berkeley Mun. Code, § 22.20.065.C.1.)
Whether the City could grant approval under section 65913.4 and
subsequently enforce Berkeley Municipal Code section 22.20.065 is a question
not presented in the current posture of this case. It is sufficient for us to hold
that the AHMF ordinance did not provide respondents with a valid basis for
denying ministerial approval due to conflict with an objective planning
standard.
Appellants argue persuasively that the statewide interest served by
section 65913.4 should not be defeated where a project complies with the
standards for ministerial approval set forth in the statute and a local
ordinance requires a lower percentage of low-income housing, albeit with an
included component of required units for very low-income households.34
34 The affordable housing percentage specified in the City’s AHMF
ordinance is both more and less stringent than what section 65913.4 requires:
It is more stringent in requiring half of a development’s low-income housing
to be affordable for very low-income households, but its total affordable
housing requirement—20 percent of the units in a development—is
considerably less than the 50 percent low-income housing required by section
65913.4 for a locality that has not met its RHNA share. While section
65913.4 expressly provides for its requirements to give way to more stringent
local ordinances in some circumstances, the situation posed by the AHMF is
62
Section 65913.4, as we have said, was intended to expedite processing of
applications for low-income housing developments by curbing local resistance
and delays. Respondents’ reliance upon Berkeley Municipal Code section
22.20.065 to deny ministerial approval to a project providing 50 percent low-
income housing frustrates the purpose of section 65913.4.35
not one of them. For example, section 65913.4 provides for a local ordinance
to prevail over the statute’s requirement that a proposed development
provide at least 10 percent of its units to low-income households where the
locality has not met its RHNA for above moderate-income housing if the local
ordinance requires more than 10 percent low-income housing. (§ 65913.4,
subd. (a)(4)(B)(i)(I).) For localities within the San Francisco Bay Area,
section 65913.4 requires dedication of 20 percent of a development’s units to
households making “below 120 percent of the area median income with the
average income of the units at or below 100 percent of the area median
income,” but provides for a local ordinance to apply if it “requires greater
than 20 percent of the units be dedicated to housing affordable to households
making at or below 120 percent of the area median income, or requires that
any of the units be dedicated at a level deeper than 120 percent.” (§ 65913.4,
subd. (a)(4)(B)(i)(II)(ia).) Where, as here, a project’s eligibility for ministerial
approval is pursuant to section 65913.4, subdivision (a)(4)(B)(ii), the statute
specifies that its requirement of 50 percent is superseded by a local ordinance
“that requires greater than 50 percent of the units be dedicated to housing
affordable to households making at or below 80 percent of the area median
income”—but, unlike subdivision (a)(4)(B)(i)(II)(ia), it does not say the same
for local ordinances requiring provision of housing for households at even
lower income levels.
35The City’s municipal code provides a formula for determining a
proportional discount to the AHMF for projects that include low-income and
very low-income units comprising less than 20 percent of the total units.
Respondents found that appellants did not qualify for a discounted AHMF
because the project did not include any very low-income units. Appellants
argue that imposing the full AHMF fee on a project providing 50 percent
affordable housing units is plainly excessive.
“When a local agency imposes any fee or exaction as a condition of
approval of a proposed development, as defined by Section 65927, or
development project, those fees or exactions shall not exceed the estimated
63
B.
The 90-day letter informed appellants that the project “potentially”
conflicted with the “objective standards” that it “[b]e capable of meeting any
applicable performance standards for off-site impacts” and “[n]ot exceed the
amount and intensity of use that can be served by available traffic capacity
and potential parking supply” (Berkeley Mun. Code, § 23E64.090) and stated
that an updated traffic analysis was required and the City “has ‘Guidelines
for Development of Traffic Impact Reports’ which includes methodology and
the requirement to identify feasible mitigation measures and provide
mitigation.” The 90-day letter made no mention of any specific criterion for
measuring traffic impacts, and the Guidelines for Development of Traffic
Impact Reports (Traffic Guidelines) referenced in the letter are not part of
the administrative record.36 The letter thus failed to comply with the
reasonable cost of providing the service or facility for which the fee or
exaction is imposed.” (§ 66005, subd. (a); Boatworks, LLC v. City of Alameda
supra, 35 Cal.App.5th at p. 294.) When the City’s formula is applied to a
project with a combined total of 20 percent low and very low-income units,
the resulting fee is zero, reflecting the determination that this proportion of
affordable housing units offsets the costs imposed by the project. The same
formula suggests that the 50 percent affordable housing provided by
appellants’ project would have a substantial positive impact. While this does
not account for the lack of very low-income housing, appellants suggest that if
low-income housing is assumed to be half as mitigating as very low-income
housing, in effect lowering the proportion of affordable housing in their
project from 50 to 25 percent, the City’s formula would still result in a
positive impact. Given our conclusion that the AHMF ordinance does not
establish an objective standard with which a proposed development can be
found inconsistent, we find it unnecessary to resolve the excessiveness issue.
36Appellants responded that section 65913.4 did not require a traffic
analysis but nevertheless provided a “Focused Transportation Impact
Analysis,” which concluded the “project trips would not cause any significant
impacts at the intersections evaluated in the 2016 DEIR under Existing Plus
64
statutory requirement that the City provide, within 90 days of application,
“written documentation of which standard or standards the development
conflicts with, and an explanation for the reason or reasons the development
conflicts with that standard or standards.” (§ 65913.4, former subd. (b)(1),
now subd. (c)(1).) “If the local government fails to provide the required
documentation pursuant to paragraph (1), the development shall be deemed
to satisfy the objective planning standards specified in subdivision (a).”
(§ 65913.4, former subd. (b)(2), now subd. (c)(2).)
Respondent’s September 2018 denial letter clarified that the issue was
with cumulative traffic impacts.37 This explanation, however, came too late
to allow appellants to attempt to address the asserted conflict.38
Furthermore, its only reference to anything like an objective criterion for
Project conditions” and the “project would not cause a significant impact on
safety or emergency access.”
37 The letter stated that even the original, smaller, 2015 project “was
found to contribute to exceedances of street capacity in cumulative scenarios,
in conflict of the City’s Guidelines,” citing the portions of the DEIR
concerning traffic impacts, and that “[w]hen analyzed pursuant to the City’s
Guidelines for Development of Traffic Impact Reports (i.e., an ‘external and
uniform benchmark or criterion’), it is not clear that the Project would meet
these performance standards under cumulative traffic conditions.”
38The 90-day letter mentioned cumulative impacts only in an
attachment summarizing the impacts and mitigation measures discussed in
the DEIR, which include four intersections found to have significant impacts
under “Cumulative Plus Project Conditions.” The DEIR’s findings are not in
themselves “objective standards”; they are conclusions CEQA requires to be
considered in making discretionary decisions with potential environmental
impacts. In the CEQA context, even where significant impacts are
determined to be unavoidable, a lead agency can still approve the project if it
determines the unavoidable impacts are acceptable due to overriding
economic, legal, social, technological or other benefits of the project. (Pub.
Resources Code, §§ 21002, 21081; Cal. Code Regs., tit. 14, §§ 15092, 15093.)
65
assessing cumulative traffic was in a footnote relating the DEIR’s description
of a portion of the City’s Traffic Guidelines, and that description overstated
the definitiveness of the criterion mentioned, omitting qualifying language
that appears in the Traffic Guidelines themselves.39 Even on this appeal,
while arguing that appellants did not demonstrate the project would satisfy
objective “cumulative traffic criteria,” respondents do not describe a specific
criterion for assessing cumulative traffic impacts. To the extent the criterion
stated in the Traffic Guidelines can be considered an “objective zoning
standard” within the meaning of section 65913.4, we are led to it only
through respondents’ citation to the DEIR, which in turn refers to the Traffic
Guidelines—which, again, are not even part of the administrative record.
39 The denial letter quotes the DEIR’s statement that the traffic related
findings were based on “City of Berkeley criteria, which state that an impact
would occur only if the intersection meets peak hour signal warrants,
operates at LOS F, and adds more than 10 vehicles to the critical
approach/movement.” The Traffic Guidelines, as we have noted, are not a
part of the administrative record. As they appear through the City’s website,
however, the statement to which the DEIR refers appears less definitive. The
Traffic Guidelines state, with respect to unsignalized intersections: “Unlike
for signalized intersections, it is difficult to establish fixed significance
thresholds for unsignalized intersections, particularly those with only side-
street stop control. In general, mitigations are required if a movement is at
LOS F, the peak hour signal warrant is met, and a minimum of 10 vehicles is
added to the critical movement. Nevertheless, as delays increase dramatically
once LOS F is reached, consideration should be given to the number of new
trips added by a project and other factors, such as the feasibility of
alternative routes and the proximity of adjacent traffic signals.” (Italics
added.) Thus, what reads as an objective standard as described in the DEIR
appears to leave room for interpretation—and discretion—as actually stated
in the City’s guidelines.
66
In these circumstances, respondents’ assertion that the project does not
comply with zoning standards with regard to traffic is an insufficient basis
for its denial of ministerial approval under section 65913.4.40
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court
with directions to grant the petition for writ of mandate.
Appellants shall recover their costs on appeal.
40Our conclusion that the City’s denial of appellants’ application for
ministerial approval failed to comply with section 65913.4 makes it
unnecessary for us to address respondents’ and CVL’s additional contention
that the City’s denial violated the HAA.
67
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
Ruegg & Ellsworth et al. v. City of Berkeley et al. (A159218)
68
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Frank Roesch
Attorneys for Appellants: Reed Smith
Raymond A. Cardozo
Brian A. Sutherland
Holland & Knight
Jennifer L. Hernandez
Daniel R. Golub
Emily Martinez Lieban
Attorneys for Amicus Curiae
on behalf of Appellants: Matthew Gelfand
Attorneys for Respondents: Berkeley City Attorney’s Office
Farimah F. Brown
City Attorney
Christopher D. Jensen
Associate City Attorney
Burke, Williams & Sorensen
Kevin D. Siegel
Megan A. Burke
Deepa Sharma
Attorney for Interveners and Law Offices of Thomas N. Lippe
Respondents: Thomas N. Lippe
Attorneys for Amici Curiae
on behalf of Respondents and
Interveners and Respondents: Courtney Ann Coyle
Kaplan Kirsch & Rockwell
Matthew G. Adams
Sara A. Dutschke
Sharee Williamson, Pro hac vice
69
Attorneys for Amicus Curiae Colantuono Highsmith & Whatley
Michael G. Colantuono
Matthew T. Summers
Sharee Williamson, Pro hac vice
70