By Eric Cohn and E.J.Schloss

The Housing Crisis Act of 2019 (the Act or HCA), in part, prohibits certain cities from: (1) enacting any policy that changes the zoning of parcels to “a less intensive use” or (2) “reducing the intensity of land use” within a zoning district to below what was allowed under the zoning ordinances in effect on January 1, 2018. In July 2020, the City of Culver City (City) adopted an ordinance that amended the City’s zoning code to change development standards in its single-family residential “R-1” zone (Ordinance)—relevantly, reducing the allowable floor area ratio (FAR) for primary residences from 0.60 to 0.45 and consequently decreasing the square footage of a house that could be developed on a given lot. Plaintiffs Yes In My Back Yard and Sonja Trauss (collectively: YIMBY) filed a petition for writ of mandate (Petition) seeking an order declaring the Ordinance void as violative of the HCA because the FAR reduction impermissibly reduced the intensity of land use. The trial court granted the Petition, following which the City appealed. The Court of Appeal affirmed the trial court’s judgment. [Yes In My Back Yard, et al. v. City of Culver City, et al., ___Cal.App.5th___, Case Nos. B321477, B325606 (2nd Dist. Oct. 27, 2023)]

Factual and Procedural Background

In July 2017, the City of Culver City retained a consultant to study how to address community concerns regarding “mansionization” in the City’s single-family residential “R-1” zoned neighborhoods. The consultant recommended amendments to the R-1 zone development standards that would reduce the square footage of a house that could be developed on a given lot—including, amongst other things, by reducing the floor area ratio from 0.60 to 0.45 for a given lot (FAR Reduction). In May 2020, the City Council conducted a public hearing at which it introduced an ordinance that would effectuate the FAR Reduction (Ordinance). Following the Ordinance’s introduction, Yes In My Back Yard and Sonja Trauss commented on the Ordinance expressing its violation of the Housing Crisis Act of 2019, set forth in Government Code section 66300 as the Ordinance would reduce the intensity of residential use in the R-1 zone. In July 2020, the City Council adopted the Ordinance.

Thereafter, YIMBY filed a petition for writ of mandate (Petition) seeking an order declaring the Ordinance void as violative of the HCA because the FAR Reduction impermissibly reduced the intensity of land use. The trial court ruled that the Ordinance violated the HCA, holding that the HCA was clear and unambiguous and generally prohibited reductions in FAR. Judgment was entered in YIMBY’s favor and the trial court granted the Petition ordering the City to repeal the Ordinance. Following post-judgment briefing, YIMBY was award attorneys’ fees pursuant to the private attorney general fee statute, Code of Civil Procedure section 1021.5. The City timely appealed both the judgment and the attorneys’ fees award. The Court of Appeal’s opinion on both (consolidated) appeals followed.

The Court of Appeal’s Decision

The Court of Appeal affirmed the trial court’s granting of the Petition and award of attorneys’ fees.

The Ordinance Violated the Plain Language of the HCA

The Court of Appeal analyzed whether the Ordinance violated the HCA. The Court of Appeal held that the HCA’s plain language prohibited reductions in FAR (unless a stated exception applied). More specifically, the plain language of the HCA precludes certain cities from enacting a development policy, standard, or condition that has the effect of:

. . .[c]hanging the general plan land use designation, specific plan land use designation, or zoning of a parcel or parcels of property to a less intensive use or reducing the intensity of land use within an existing general plan land use designation, specific plan land use designation, or zoning district in effect at the time of the proposed change, below what was allowed under the land use designation or zoning ordinances of the affected county or affected city, as applicable, as in effect on January 1, 2018.

Furthermore, the HCA defines “reducing the intensity of land use” to include:

. . .reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.

Notwithstanding the above language, the City had claimed that the California Legislature intended that only a reduction in the number of housing units allowed would violate the HCA and in turn argued that the HCA is ambiguous, citing to various dictionary definitions to argue the terms “density” and “intensity” as used in the HCA introduce ambiguity. The Court of Appeal rejected this argument—stating “there is no need to look at how other sources define ‘density’ and ‘intensity,’ as the statutory definition for ‘reducing the intensity of land use’ found in the [HCA] itself is controlling” and that limiting the HCA to only a reduction in number of housing units would require the Court of Appeal to effectively write language out of the statute. Accordingly, the Court of Appeal held the Ordinance’s FAR Reduction violated the HCA.

The HCA’s Plain Language is Consistent with the Legislative History

The Court of Appeal next analyzed the HCA’s legislative history—noting that given the HCA’s plain language it was not necessary to analyze the legislative history, but nonetheless the legislative history is consistent with the Court of Appeal’s plain language interpretation. The Court of Appeal determined the legislative history of the HCA suggested that it should be construed to provide broad protections for housing. The Court of Appeal highlighted the Legislature’s intent to prevent local government from implementing policies that could hinder housing development or diminish the residential capacity of a given lot. This includes situations like multi-generational living arrangements, where the allowable FAR and the resultant number of bedrooms that can be accommodated are directly tied to the property’s capacity to house residents.

The Ordinance is Not Excepted from the HCA

The City next argued that the Ordinance did not violate the HCA because the Ordinance facilitates the development of housing for lower-income households and increases density and as such satisfied stated HCA exceptions set forth in Government Code section 66300, subdivision (j) and subdivision (f)(3). The Court of Appeal rejected this argument. The Court of Appeal, noting that the HCA provides that exceptions of the HCA are to be construed narrowly, held that the City failed to establish either of these exceptions. The City failed to show that the Ordinance facilities the production of housing that traditionally serves lower-income households nor does it establish the Ordinance allows increased density. Accordingly, the Court of Appeal held that the Ordinance was not excepted from the HCA’s application.

The Trial Court Did Not Abuse Its Discretion in Awarding YIMBY Attorneys’ Fees

The Court of Appeal next reviewed the trial court’s award of attorneys’ fees to YIMBY under the private attorney general statute, Code of Civil Procedure section 1021.5. The City argued that the attorneys’ fee award should be reversed because the judgment does not confer a significant benefit on the general public or a large class of persons as there is no consensus on what the housing policy should be regarding single-family residential development. The Court of Appeal rejected this argument, noting that a court of appeal will uphold a trial court’s decision to award attorneys’ fees under Code of Civil Procedure section 1021.5 unless it is determined that the trial court abused its discretion. The Court of Appeal determined that the trial court did not abuse its discretion here in finding that a significant benefit was conferred on the general public or a large class of persons through YIMBY’s enforcement of housing rights, including because of the Legislature’s proclamations promoting the public’s interest in housing development. Additionally, the Court of Appeal held that the City failed to cite any authority to support its proposition that a consensus about a policy is required to find that a significant benefit has been conferred on the general public or a large class of persons.

Conclusion and Implications

The case is significant because it is one of the first Court of Appeal opinions to analyze the Housing Crisis Act of 2019. The published decision is available online at: https://www.courts.ca.gov/opinions/documents/B321477.PDF