63 Cal.App.5th 277
Cal. Ct. App.2021Background
- In March 2018 Ruegg & Ellsworth / Frank Spenger Co. submitted a Senate Bill 35 (§ 65913.4) application for a mixed-use project at 1900 4th Street, Berkeley: ~260 units (50% affordable) and ~27,500 sq ft retail. The site lies within a three-block area designated a City Landmark for the West Berkeley Shellmound (an important subsurface cultural resource).
- Multiple archaeological studies produced mixed results: older borings suggested possible remnants on-site, while more extensive 2014 trenching and GPR work concluded deposits on the parking-lot site were likely redeposited/secondary and unlikely to be intact shellmound structure; DEIR nonetheless recommended monitoring and mitigations.
- Gov. Code § 65913.4 (SB 35) creates a streamlined ministerial approval path for qualifying affordable housing that meets enumerated objective standards and excepts projects that would require demolition of a historic structure placed on a historic register (§ 65913.4(a)(7)(C)).
- The City denied the SB 35 application (June/Sept 2018 letters), citing: (1) SB 35’s asserted conflict with local landmark preservation (home-rule), (2) potential demolition of a historic structure (the Shellmound) on the site, (3) conflict with Berkeley’s Affordable Housing Mitigation Fee (AHMF), and (4) traffic/performance standards concerns. Appellants sued for writ of mandate.
- Trial court denied the petition on two grounds: the City’s finding that the project could demolish a historic structure had some evidentiary support, and § 65913.4 does not apply to mixed-use developments. The Court of Appeal reversed, directing the trial court to grant the writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for agency finding that project "would require demolition of a historic structure" | Applicant: de novo/substantial-evidence review should apply (statutory intent constrains local discretion); 2019 amendment (AB 1485) confirms substantial-evidence focus | City: apply deferential mandamus review (Code Civ. Proc. §1085); factual determinations entitled to deference | Deferential review inappropriate here; court examines record and finds no evidence project would demolish a historic "structure" on the site. |
| Whether a shellmound or its remnants qualify as a "historic structure" under §65913.4(a)(7)(C) | Applicant: shellmound is a site/midden and not a "structure" as used in §65913.4; remaining deposits are disturbed/remnants, not an intact structure | City/CVL: historic preservation law treats subsurface middens and remnants broadly; exception should cover such cultural resources | "Structure" as used in §65913.4 refers to an immovable built work; the Shellmound designation covered a site and subsurface artifacts, but no evidence shows a structure or intact remnants that demolition of the project would destroy — exception does not apply. |
| Whether §65913.4 applies to mixed-use developments and meaning of the "two‑thirds" residential rule | Applicant: two‑thirds requirement applies to the proposed development (floor‑area of project), so mixed‑use projects >2/3 residential qualify | City: reads provision as a zoning/site requirement — the site’s zoning must mandate ≥2/3 residential mix, thus excluding most mixed‑use projects | §65913.4 applies to mixed‑use developments when at least two‑thirds of the development’s square footage is residential; statutory text, DHCD guidance, and subsequent clarifying amendments support applicant’s reading. |
| Whether local objective standards cited (AHMF, traffic/performance) justified denial | Applicant: AHMF is an exaction/fee, not an objective planning standard; City failed to identify an objective traffic standard in its 90‑day letter | City: project conflicts with AHMF requirements (no VLI units/ formal exemption) and with City traffic performance criteria | AHMF is not an objective planning standard permitting denial under §65913.4; City also failed to identify a specific objective cumulative-traffic criterion in the record—these grounds do not support denial. |
Key Cases Cited
- San Francisco Fire Fighters Local 798 v. City and County of San Francisco, 38 Cal.4th 653 (2006) (explains how the scope of legislative delegation shapes the appropriate standard of judicial review)
- Kavanaugh v. West Sonoma County Union High School Dist., 29 Cal.4th 911 (2003) (defines ministerial act and contrasts it with discretionary action)
- State Building & Construction Trades Council of California v. City of Vista, 54 Cal.4th 547 (2012) (sets out home‑rule analysis and the test for statewide concern vs. municipal affairs)
- Western Security Bank v. Superior Court, 15 Cal.4th 232 (1997) (statutory clarification vs. retroactivity; clarifies when later amendments may be construed as clarifying existing law)
- Soderling v. City of Santa Monica, 142 Cal.App.3d 501 (1983) (discusses agency factual determinations in ministerial/discretionary map approval context)
- Lexin v. Superior Court, 47 Cal.4th 1050 (2010) (principles of construing statutes in pari materia)