STATUS: YIMBY Law VIctory! - Case settled December 2022

When NIMBYs Go Low, We Go to Court 

UPDATE: Burbank approved a modified version of this project on October 25th, 2022. An article about this approval is available here. The modified project has the same square footage as the original SB-35 project which we filed suit to ensure the city approved. YIMBY Law subsequently settled our case with the city.

___

YIMBY Law has filed a lawsuit against the City of Burbank which illegally voted to block construction of an SB 35 compliant housing project. In July 2021, developers proposed a 96-unit townhome-style condominium project in Burbank, California. It is located on a five-acre property known as the Pickwick Gardens. The project would replace a vacant bowling alley, ornamental gardens, and a parking lot.

In 2017, the California legislature passed SB 35, a housing law that helps streamline the approval process for new homes when a city is not on track to meet state mandated housing goals. As of the end of 2020, Burbank permitted just 697 out of the required 2,684 homes. Out of the homes approved in the city since 2014, none were reserved for very low income residents. In the same time period, Burbank permitted only 553 market rate homes— far short of its 1,134 unit requirement. 

Because of these failures, Burbank is obligated to follow a streamlined approval process for any housing project which follows guidelines outlined in SB 35. Project applications under SB 35 were intended to be easily approved based on an objective set of guidelines and standards. Having clear objective standards allows for straightforward permit streamlining and an expedited process to begin construction.

“[Under SB 35]... design review or public oversight shall be objective and be strictly focused on assessing compliance with criteria required for streamlined projects, as well as any reasonable objective design standards published and adopted by ordinance or resolution by a local jurisdiction before submission of a development application, and shall be broadly applicable to development within the jurisdiction. That design review or public oversight shall be completed as follows and shall not in any way inhibit, chill, or preclude the ministerial approval provided by this section or its effect.” 

In 2021, the Pickwick Project developers worked with the city’s planning department over the course of several months to ensure that they provided all of the information necessary to the city to process the application under SB 35. The developers on the proposed condominium project, known as the Pickwick Project, designed it specifically to qualify for streamlining under the provisions of SB 35. The project met the minimum affordability requirements, deed restricting just over 10 percent of the total number of homes for low income households. By November 2021, Burbank’s planning department determined that the project’s pre-application met all of the requirements of SB 35.

The Pickwick condominiums would be Burbank’s first SB 35 project. Word of this proposal spread and immediately drew backlash from local residents. Some NIMBY criticism of the project focused on concerns about increased traffic; but the standout criticism of the proposed housing project was a concern over endangering Burbank’s local equestrian community. Apparently because housing residents is a good idea until we endanger abandoned lots where horses might one day want to trot in peace!

The Burbank city planning staff, however, formally reviewed the project and made a recommendation that the council approve the project, since it met all of the requirements under the law: 

“Staff recommends the City Council conditionally approve the Project. Having met all criteria per California Government Code 65913.4, the proposed Project qualifies for the Streamlined Ministerial Approval Process under SB 35 and the City’s Streamlined Ministerial Approval Process. Based on the prior review and analysis, it is the Community Development Director’s determination that the Project meets all the findings required for the approval under SB 35. Furthermore, Project approval is warranted as the Project is consistent with the applicable Commercial Recreation (CR) Zone, objective design review and development standards, the applicable Burbank2035 General Plan goals and objective policies, and the applicable requirements for a housing development project of this type under local and State Density Bonus Law, [t]he City’s Inclusionary Housing Ordinance, and the applicable provisions of [t]he Housing Accountability Act...”

In addition to the Burbank planning staff’s recommendation, HCD was also consulted in November 2021. They too found that the project qualified to be streamlined under the law. In a rare occurrence of intervention by a state legislator, California State Senator Anthony Portantino supported resident opposition efforts by writing to the city and advising them to deny it. In the letter, Senator Portantino argued that the project did not meet the requirements outlined by SB 35. HCD later responded by sending a letter of technical assistance to Senator Portantino explaining why the project qualified, stating that his argument was incorrect.

Going into the public oversight hearing on April 18th, the City Council's decision should have been a rubber stamp given that their planning staff had already made a consistent determination that was also backed up by the state. Under the Housing Accountability Act’s “reasonable person” standard, the City Council was actually legally obligated to approve the project.

The “reasonable person” standard was added to the Housing Accountability Act in 2017 by Assembly Bill 1515. In a technical assistance memo HCD sent out to cities across the state in 2020, they explain that this change in the law means that  “[a] housing development project or emergency shelter is deemed consistent, compliant, and in conformity with an applicable plan, program, policy, ordinance, standard, requirement, or other similar provision if there is substantial evidence that could allow a reasonable person to conclude that the housing development project or emergency shelter is consistent, compliant, or in conformity with applicable standards and requirements. The intent of this provision is to provide an objective standard and increase the likelihood of housing development projects being found consistent, compliant and in conformity.”

Incredibly, when the Burbank City Council was deliberating over whether it should approve the Pickwick project or not, instead of recognizing that the city's planning staff and HCD are reasonable people who had determined that the project met the required standards of approval for SB-35, it unanimously denied the project. One council member explained his reasoning was that he was a “reasonable person” and he didn’t believe that the project met the standards of the general plan, therefore he wasn’t breaking the law by denying the project. 

Despite the claims from Burbank City Council members, deciding that projects don’t meet city standards based on political pressure from NIMBY constituents is not how the law works. Many reasonable people who review state housing law as a part of their professional roles saw that all guidelines for the Pickwick Project had been met. Through the city council’s lack of specific objections and by ignoring their own staff as well as HCD, it is clear that the motivation to deny the project had nothing to do with following the law and everything to do with maintaining NIMBY political support.

YIMBY Law has now filed a lawsuit to require the city to approve the project. The developer for the Pickwick project has also filed suit. Additionally, HCD has sent the City of  Burbank a Notice of Violation, requiring the city to reverse course and approve the project. If the city fails to do so, HCD will hand the case over to the Attorney General’s office to enforce the law. We’re looking forward to winning this case, and any other case where SB 35 is ignored to placate exclusionary NIMBY pressure.