Liang - What are "Objective Standards"? - questions on housing bills

---------- Forwarded message ----------
From: Liang C
Date: Mon, Nov 27, 2017 at 12:52 PM
Subject: What are "Objective Standards"? - questions on housing bills
To: City Council <citycouncil@cupertino.org>, "City of Cupertino Planning Dept." <planning@cupertino.org>, David Brandt <davidb@cupertino.org>

Dear City Council Members and Planning Staff,

Please clarify what are the "object standards", in the worst case when a developer submits a project proposal that the developer's attorney argues that the proposal complies with the General Plan, while the City might disagree.

The relevant sections from the memo by Goldfarb and Lipman are included. I summarize the interpretation and implication of these segments below.

Segment A: If a housing project complies with all "objective standards", the city may not deny the application or reduce the density.

Segment B: Under SB 35, a project only needs to satisfy the maximum density, such as units/acre, and the "maximum unit allocation would be ignored.

Segment C: The court might interpret "objective standards" as the maximum allowed density and ignore "max unit allocation" to follow SB 35, even though such interpretation in SB 35 only applies to projects qualified for streamlining.

Segment D: The court will now deem a project consistent with objective standards as long as a project applicant (a reasonable person) provides evidence that the project is consistent. "The project may be found consistent even if the local government has better evidence that the project is inconsistent."

Segment E: If a housing advocacy group or a developer sues the city and win, they are entitled to attorney fees. Thus, it increases the likelihood that housing advocacy groups or a developers will sue. The city will be fined $10,000/unit or up to $50,000 for each housing unit for a project the city denied and then the court forces the city to approve.

Question 1: The city uses "max unit allocation" on sites, such as Vallco, Oaks and other sites. If the court ignores "max unit allocation" as an objective standard, what would that impact projects in Cupertino? The unit-per-acre would be the only object standard used for any housing site?

Question 2: If a site, zoned with residential use, submit a project using the maximum allowed density + density bonus, beyond it's allocated housing unit, would be the city be able to deny such project proposal? In case the city deny such proposal and get challenged in court, would the city be fined $10,000 and up to $50,000 per unit?

Question 3: If the citizens file a referendum on such a project approved by the city or the city put the project proposal on the ballot for the voters to approve or deny, would be court still be able to overturn the voters' decision and put hefty fine on the city?

Question 4: The "provisional allocation" on Vallco Shopping District was approved with the understanding that the citizens and the city council have the final approval power. The intention was that the citizens have the option to reduce the office allocation at the final project approval. With Segment D, the ""provisional" office allocation of 2 million square feet has become an entitlement. The city cannot reject any project proposal at Vallco containing 2 million square feet of office space; otherwise, the court could order the city to comply. What does the city have to ensure that the "provisional" office allocation is indeed "provisional"?

Question 5: With Segment A, B, C and D, Measure D would comply with the General Plan; or a project applicant (a reasonable person) would argue that Measure D comply. In fact, a beefed-up version of Measure D with 2 million square feet of office and 2,400 units of housing units would comply with the General Plan too? Is that the intention of the General Plan approved by the City Council? If not, how can we clarify the language in the General Plan so that the intention is clear?

((51 acres + 35 unit/acre) * (1.35) = 2400 units for 35% density bonus.)

Question 6: The General Plan needs to set standards for the worst case scenario. After Jan. 1, 2018, Sand Hill can submit a project proposal with 2 million square feet of office and 2,400 units of housing unit, would the city be able to deny the project and have confidence to hold out for the legal challenge that follows? If so, could the city spell out what makes the city's case strong?

(Note that we cannot depend on the developer's good will when making the law. Sand Hill might sell Vallco Shopping District to another developer who might exploit the General Plan to their maximum benefits under the new law.)

Question 7: Without the height or setback limits at Vallco Shopping District, there is no objective standards in the General Plan that defines the "character of Cupertino". The limits were removed with the understanding that the citizens and the city council have the final approval power. The citizens have the option to say that the project doesn't fit the character of Cupertino. But the new housing bills state that only objective standards are respected. Is the intent of the City Council to accept any project at Vallco Shopping District regardless of its heights and setbacks? If not, should the General Plan be amended to provide objective standards, as required by the state laws?

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Source: A- Goldfarb Lipman memo

Segment A:

Page 1:

"The Housing Accountability Act states that if a housing development project application complies with all "objective" general plan, zoning, and subdivision standards in effect when the application is deemed complete, the City may not deny the application or reduce the density unless it finds that the project would have a "specific adverse impact" on public health and safety (which is defined so that, as a practical matter, it is a very difficult standard to meet)."

"Although "objective standard" is not defined in the Housing Accountability Act, cases
have found that regulations such as permitted uses, density, height, setbacks, and floor area ratio are "objective," while standards such as "consistent with the community character" or
"suitable for the site" are subjective and cannot be used as the basis to deny or reduce the density
of a housing development project.

Segment B:

Under SB 35 (page 2), for projects qualified for streamlining, "A project is also consistent if it complies with the maximum density for the site, plus a density bonus, even if the City established a lower unit allocation for the site."

Segment C:

On Page 12:

"Definition of "Objective" Standard. The HAA does not define "objective."
However, SB 35 defines an "objective" standard as one that involves "no personal
or subjective judgment by a public official and uniformly verifiable by reference
to an external and uniform benchmark or criterion available and knowable by both
the development applicant… and the public official prior to submittal." Although
SB 35 states that this definition is confined to that statute, courts may reference
this definition in interpreting the HAA."

Segment D:

On Page 13:

"Less Deference to Local Government Findings of Inconsistency. A housing
project "shall" be deemed consistent with applicable standards if there is
substantial evidence that would allow a reasonable person to conclude that the
project is consistent. Currently a local government's finding of either consistency
or inconsistency is upheld unless no reasonable person could agree.

This new standard may make it more difficult for local governments to deny
projects, because if a court finds that evidence of project consistency submitted by
an applicant is reasonable, the project may be found consistent even if the local
government has better evidence that the project is inconsistent. The standard will
also make it more difficult for project opponents to challenge a project as
inconsistent when the local government has found it to be consistent.

Additionally, any findings made to deny a housing project must be supported by a
preponderance of the evidence, which is a less deferential standard of review than
the current substantial evidence standard. Rather than only looking at the city's or
county's evidence to see if it is "substantial," a court will compare the agency's
evidence with the applicant's evidence and determine which is more convincing."

Segment E: Page 13:

"Increased Penalties for Failure to Comply with the HAA. If a local government
improperly denies any housing project, whether market rate or affordable, the
prevailing party in a lawsuit brought under the Housing Accountability Act is
entitled to attorneys' fees. In addition, if a local agency fails to comply with a
court order to approve a project pursuant to the Housing Accountability Act, it
shall be fined a minimum of $10,000 per unit. Penalties can increase to five times
this amount if the local agency fails to comply with a court order, and the court

finds bad faith."