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An effort to take legal action against San Mateo for the City Council’s decision to reject a proposal to build a 10-unit condominium building off El Camino Real in 2018 hit a stumbling block earlier this month when a judge ruled the city did not violate the Housing Accountability Act when the council denied the project’s approval based on height differences between properties.

Judge George Miram’s Nov. 7 denial of a lawsuit filed by the San Francisco Bay Area Renters Federation and California Renters Legal Advocacy and Education Fund came more than a year after the council voted in February of 2018 to deny the applicant’s appeal of the Planning Commission’s 2017 denial of the project planned for 4 W. Santa Inez Ave. City Attorney Shawn Mason has alleged the city’s decision regarding the project near El Camino Real and West Santa Inez Avenue is defensible because the proposed development objectively violated the city’s multi-family design guidelines aimed at smoothing height differences between properties with transitional features, such as setbacks.

Claiming councilmembers’ decision was subjective and illegal under the state’s Housing Accountability Act, Victoria Fierce, a Bay Area housing advocate who helps operate the California Renters Legal Advocacy and Education Fund, alleged in a petition for a judge to review the council’s decision that the city’s multi-family design guidelines are discretionary and not mandatory standards that can be invoked to avoid the state law. Fierce has also argued the city’s height guideline is not objective and criteria for a transition between two buildings with a greater-than-one-story height difference is not defined in the guideline.

Because the adequacy of a transition between two buildings can only be determined through subjective judgment — argued the California Renters Legal Advocacy and Education Fund, or CaRLA, in the petition — the basis for the council’s denial came into conflict with the state’s Housing Accountability Act, or HAA, which was aimed at boosting the approval of housing across the state by curbing local governments’ ability to deny or reduce residential projects.

But Miram found in the Nov. 7 ruling that the city’s multi-family design guidelines qualified as applicable, objective standards in effect when the housing proposal was determined to be complete and the city did not violate the HAA. Miram sided with the city’s contention that CaRLA’s interpretation of the city’s multi-family design guidelines was a sweeping negation of local agency discretion, interfering with the city’s core decision-making abilities and violating the home rule doctrine of the California Constitution.

“This court finds that the city of San Mateo is a charter city whose charter fully incorporates the home rule doctrine and that the approval of the instant residential housing project is an appropriate exercise of municipal affairs,” wrote Miram in the denial. “Furthermore, this court finds that to the HAA is unenforceable to the extent the HAA conflicts with or purports to disregard otherwise enforceable portions of the city’s Municipal Code regarding review of housing development projects.”

Mayor Diane Papan noted the council’s vote to reject the appeal marked the first time in some 30 years the City Council had not approved a housing development, adding officials felt very strongly the project did not meet the city’s objective criteria for housing developments. In the months leading up to the council’s decision, the proposal drew the ire of the project’s neighbors, who worried about the development’s mass as well as the parking and traffic congestion the four-story building would bring. The development was also heralded by residents and housing advocates who supported the project they felt would help accommodate families in need of housing.

“We are pleased that the court concurred,” said Papan. “We certainly hope that the applicants will bring something forward that meets the objective criteria.”

Mason said there hadn’t been a resubmittal of the application as of Nov. 18, but the applicant, Tony Gundogdu, has the option of submitting revised plans.

In a Nov. 12 post on the CaRLA website, Fierce maintained CaRLA’s stance that use of regulations that are subjectively determined may afford cities a loophole for HAA compliance by allowing city officials to reinterpret subjective standards and deny projects. Fierce contended that instead of engaging with the issue of applying the HAA to the case, Miram made a statement on the state’s ability to limit local land use decisions.

Though Fierce acknowledged the state Legislature cannot pre-empt local laws regulating local matters, she argued the state law prevails when regulations are aimed at solving an issue of statewide concern.

“California’s housing shortage is a statewide catastrophic failure of local decisions over the last half century, that negatively impacts millions of Californians,” she wrote in the Nov. 12 post. “Local decisions on housing development have been a major factor in preventing new housing to alleviate the shortage, so each local decision to disapprove of a development adds up to increased rents around the region.”

Fierce said in the post the state’s housing crisis will only further escalate if Miram’s ruling stands, and noted CaRLA is considering appealing the case.

Mason also expressed gratitude Miram agreed that the council’s action did not violate the HAA, and said he didn’t think any allegations the city is not supportive of housing are consistent with the city’s track record of approving many developments in the last several years.

“I don’t think that’s consistent with the city’s approach in support of housing and its history,” he said, adding he couldn’t recall an instance in which the council denied a housing project in his nearly 17 years with the city. “We support the development and have supported the development of affordable housing.”

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