In a litigation result that will have a number of positive consequences for developers and housing advocates, the City of La Canada Flintridge (“City”) last week moved to dismiss its appeal of a closely-watched “Builder’s Remedy” case. After the appeals court ordered the City to post a $14 million bond on appeal, the City chose not to do so and will now comply with the trial court decision and process a housing application to build an 80-unit apartment project (“Project”).
Readers may recall us reporting on this litigation previously. (California Housing Defense Fund v. City of La Cañada Flintridge (L.A. Sup.Ct. No. 23STCP02614 and 2DCA No. B338985).) In May 2023, the City Council determined the Project did not qualify for the Builder’s Remedy, in part because the SB 330 Preliminary Application was filed after the date that the City Council (retroactively) self-certified its Housing Element update. Later that month, the City informed the Project developer that its SB 330 Preliminary Application was complete, but maintained its position that the Builder’s Remedy did not apply to the Project.
The developer petitioned the Los Angeles Superior Court for a writ of mandate, alleging that the City violated the HAA, State Housing Element Law, and other state laws. The Superior Court granted the writ, making four key rulings:
- the City cannot “self-certify” its housing element;
- the Builder’s Remedy is “vested” on the date a complete SB 330 preliminary application is submitted;
- the Builder’s Remedy is available until any required rezoning is completed; and
- the City unlawfully “disapproved” the Builder’s Remedy Project.
The Court’s ruling in effect means a City can’t back-date its Housing Element compliance to avoid approving a Builder’s Remedy project.
The Court of Appeal’s decision to require such a substantial bond (the City’s entire budget is $42 million) not only reinforces the pro-housing intentions of the Builder’s Remedy, Housing Element, and HAA rules, but also puts cities and counties on notice with respect to processing housing projects. In this case, not only did the City lose the litigation, but it likely will have to pay the petitioners’ attorney’s fees, and the developer may recover millions in losses incurred due to the appeal. Local jurisdictions seeking to continue old strategies of baselessly denying housing projects will have to think twice going forward about the potential costs.
Authored by Reuben, Junius & Rose, LLP Partner, Thomas P. Tunny.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
