Have you ever sat down to play Monopoly or Settlers of Catan with someone who knows they’re going to lose? Their goal sometimes morphs into making the game as painful as possible for everyone else, poring over the rules to find loopholes and fine print to the point that other players just give up.
It’s an apt analogy to how NIMBYs are treating challenges to dense housing development.
Over nearly a decade, California has layered housing laws that narrow what cities and neighbors can do to block a project they don’t like once a developer files. Essentially, cities can’t change the rules mid-stream anymore, downzone a site, or use discretionary review to stall projects that qualify based on growth mandates and affordability carve-outs.
Take Fairfax, a Marin County town where some neighbors were so angry about a proposed six-story apartment complex that they tried to recall the mayor and vice mayor last year. The vote failed, but it was a flash of the fury over development that periodically erupts in the Bay Area.
Months after the recall vote, the town wrote to Mill Creek Residential’s lawyers (opens in new tab) to say it accepted the developer’s terms. Officials asked for a $30,000 reimbursement for staff costs, then pointed the developer to a staffer for permits.
Moreover, the town agreed to cap the developer’s share of legal fees if opponents were to challenge the approval in court. Many cities make approvals conditional on the applicant defending and indemnifying the city.
With few legal avenues for challenges to development on the grounds that it is too big, too dense, or “out of character,” NIMBYs are increasingly honing in on the fine print.
But cities that attempt to side with opponents of development can end up in court and owing legal fees. That’s what happened to Menlo Park, which was sued (opens in new tab) this month by the developer of the former Sunset Magazine headquarters, alleging the city spent nearly three years stalling a mixed-use development by claiming it didn’t qualify for the state’s fast-track laws. (California Attorney General Rob Bonta had warned the city (opens in new tab) about this conduct.)
‘If we apply them, let’s apply them as written’
In San Francisco, neighbors of the Marina Safeway redevelopment last month filed their intent to sue the developer, city, and PG&E in federal court, arguing that the project doesn’t qualify for streamlined approval under AB 2011 and that contamination at the site (stemming from when it housed a manufactured gas plant) wasn’t properly considered during the application process.
Specifically, they are challenging the city’s view that enough of the site’s perimeter borders “urban uses,” a test that gets a project fast-tracked. The neighbors argue that a yacht harbor and Fort Mason shouldn’t count as urban use and allege that the developer skipped a required assessment of the contamination.
Roughly 250 people met at Fort Mason for a town hall opposing a housing project planned for the site of the Safeway in the Marina. | Source: Garrett Leahy/The Standard
Of note, the YesAnd group (opens in new tab), which spearheaded the lawsuit, shares a founder with Neighborhoods United SF, a coalition that previously campaigned against “extreme and unnecessary development.”
Stu Gross of Gross Klein PC, an attorney representing the plaintiffs, declined to state why his clients are waiting to file their suit. However, the complaint references the Resource Conservation and Recovery Act, a federal hazardous waste law, that has a required waiting period after providing regulators and responsible parties notice of intent to sue.
“Politicians and interest groups can debate whether these streamlining laws are appropriate,” Gross said. “But if we apply them, let’s apply them as written.”
“Simply saying a project is qualified based on it meeting low-income unit requirements is not enough,” he added. “If you’re going to allow such a massive project to fly through, there must be no question whether the site qualifies for streamlined approval or whether development of the site will create risks to public health.”
Jen Kwart, a spokesperson for the City Attorney, said the office will represent the city and city officials once they are served.
Golfing mountain lions?
In Los Angeles, the debate over housing streamlining law has taken a wacky turn. Opponents to a proposed partial redevelopment of the Woodland Hills Country Club argued that the golf course is habitat for mountain lions. The city’s planning department agreed, keeping the 398-home development from applying AB 2011 to fast-track city reviews.
“I can’t help but feel as if the developer went behind our backs to Sacramento to forge the path they wanted,” Councilmember Bob Blumenfield wrote (opens in new tab)last year. “They seem to have lobbied Sacramento to surgically amend bills to avoid public and environmental scrutiny and get their project approved ‘by right’ pursuant to newly enacted state law.”
The owner of the site, Arrimus Capital, has threatened legal action. “I’ve heard some creative excuses for blocking housing in Los Angeles, but golfing mountain lions may take the prize,” a representative told the L.A. Times (opens in new tab) in August.
Should they make it to court, those residents will find the state — as seen in the Attorney General’s stance in Menlo Park — not likely to be sympathetic to their case and the cost of fighting to be onerous.
Can a gold course be a mountain lion habitat? | Source: Courtesy: SF Animal Care & Control
“[Before these state housing laws], we would send letters to cities and they would just tell us they had a differing opinion,” said Sonja Trauss, executive director of YIMBY Law. “But now, when developers sue, it’s hugely expensive for the city.”
“We need more lawsuits to build up case law,” Trauss said at a housing conference last month at UC Law. “We used to have to lobby and try to win public support. Now you just need to hire a good lawyer and win the fight.”