Court ruling against Redondo may open door to Builder’s Remedy developments statewide 

by Garth Meyer

The specter of city Housing Elements throughout the state, including those for Redondo Beach, Hermosa Beach and Manhattan Beach, being found invalid has been raised by a California State of Appeals ruling. 

Cities whose Housing Elements are not approved subject them to the State Builder’s Remedy Law, which exempts residential developments from local zoning laws, including height and density limits.

On Friday, October 10, Judges J. Klatchko, P.J. Egerton and J. Adams’ of the Court of Appeal, State of California–Second Appellate District, faulted the Redondo Housing Element for identifying the Vons shopping center property on Inglewood Avenue as a site for residential development.

Like cities throughout the state, Redondo has struggled to satisfy the State-mandated identification of sites for new housing. Redondo’s RHNA (Regional Housing Needs Assessment) is 2,490 new units by 2029.

The appeals court ruling was in response to a lawsuit against the city by Leo Pustilnikov, a majority owner of the AES power plant site. He submitted plans to the city in 2022 for 2,700 apartments on the site.  

“This ruling is a kick in the teeth to cities who worked diligently to comply with the Housing Element requirements,” Redondo Beach Mayor Jim Light said. “It will negatively affect dozens of cities that worked in good faith with (the state) to produce a certified Housing Element. We followed the guidelines… we worked to resolve their comments… And ultimately the State certified our Housing Element. What more could a city have done?”  

Redondo Beach plans to appeal the Court of Appeals ruling to the State Supreme Court.

“We absolutely disagree with it, and we will fight it,” Redondo City Attorney Joy Ford said.

California’s top court only reviews three to four percent of requests.

Pustilnikov previously contended his AES development qualified under the Builder’s Remedy law because he submitted his plans before Redondo received approval from for its Housing Element. But a lower court found Pustilnikov could not invoke the Builder’s Remedy law because the council had approved the city Housing Element before Pustilnikov submitted his AES plans.

The Appeals Court ruling was based on a different issue, in a different lawsuit.

It faulted the city for failing to identify locations for a sufficient number of “realistic” new housing units to satisfy the city’s RHNA allotment.

It cited the Inglewood Avenue Vons property because, though it allowed residential development, it also allowed commercial development. The court also pointed to Vons’ “sole and absolute discretion” over its lot, and that the Redondo Housing Element put forth no evidence that Vons would consent to a plan for housing.

Redondo sought to satisfy its RHNA requirements through the use of zoning “overlays,” as have Hermosa and Manhattan, and many other cities. An Overlay permits residential development, but keeps the underlying zoning, which permits other uses, such as commercial and/or industrial.

Overlays are accepted by the HCD (California Department of Housing and Community).

The Appeals Court ruling was unanimous, and Pustilnikov’s company, New Commune DTLA, was awarded costs.

“We are very aware that the chances are low that the state Supreme Court will take this on, but it is such a statewide concern,” Ford said. “Many cities have these overlays in their certified Housing Elements.”

Redondo Beach has not decided if it will start re-drafting its Housing Element.

“Our position is that it is still certified,” Ford said. “(The appellate court)  hasn’t made a ruling on the Housing Element specifically. Their ruling is to remand the case back to the trial court for a writ.”

If Redondo does not appeal the appellate ruling, the city would have to revise its Housing Element.

“We have seen turnover of multiple grocery stores in recent history,” Mayor Light said. “A grocery store site sat vacant for years until Grocery Outlet came along. (Eddy Redondo) is at a former Bristol Farms site. Vons turned into Smart and Final. Smart and Final is now a preschool.” 

In further findings by the appellate court, it emphasized that to obey California Housing Element law is to choose pathways to realistic development, as opposed to theoretical planning, or “paper compliance.”

The court also stated that cities cannot bank on speculative development of commercial property to meet their assigned RHNA numbers.

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Newsom signs bill for taller buildings near transit

Also on Oct. 10, Governor Newsom signed a bill to override local zoning in favor of denser housing near public transportation hubs. The law (SB79) will allow for higher residential buildings within a half-mile of major transit stops such as for light rail, subway and bus rapid transit.

The legislation is another effort to combat the state’s housing shortage. Buildings surrounding the transit hubs may now rise to nine stories, with projects further away limited to four. 

“The world looks to California for leadership — it’s time to build modern, connected communities that fulfill California’s promise, meeting the needs of today and the next generation,” the governor wrote in a signing statement.

SB79 was written by State Senator Scott Wiener (San Francisco). It applies to eight urban counties, including Los Angeles. 

“It would definitely impact our zoning in these transit areas,” said Joy Ford, Redondo Beach city attorney. “It would probably be difficult to challenge something like that, but (the city council) hasn’t discussed it.” 

Local areas affected would mainly be transit stations along Hawthorne Boulevard in north Redondo.

“In California we talk a lot about where we don’t want to build homes, but rarely do we talk about where we do—until now,” Wiener said in a statement. “SB79 unwinds decades of overly restrictive policies that have driven housing costs to astronomical levels, forcing millions of people away from jobs and transit and into long commutes from the suburbs or out of the state entirely. It has been a long road to tackling these decades-old problems, but today’s signing marks a new day for affordable housing in California.”

L.A. Mayor Karen Bass advocated for Newsom to veto the bill, saying it would “erode local control, diminish community input on planning and zoning, and disproportionately impact low-resource neighborhoods.”

This summer, Newsom also signed a law to exempt most urban apartment projects from review regarding a state environmental protection law. ER

 

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