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Karla Brown, Mayor <br />Jocelyn Kwong, City Clerk <br />Aptil23, 2024 <br />Page 3 <br />provision of housing at densities provided in the land use element. Undet lraditional <br />land use consistency doctrine the zoning does nol trump the plan. <br />Moreover, beyond that unassailable and controlling doctrine, as set forth in the <br />Housing Accountability Act (Gov. Code S 65589.5; "HAA")-the state's premier <br />housing production law-the City may not lawfully disapprove a project that meets <br />applicable and objective land use standards and criteria without making the difficult- <br />to-make health and safety findings mandated by law. Subdivision O(1)of the HAA <br />directs that a decision to disapprove or reduce the density of a project that complies <br />with "applicable, objective general plan, zoning, and subdivision standards and <br />criteria, including design review standards' A!€L.lOe based on wriften findings <br />supported by a preponderance of the evidence in the record that (1 ) the project <br />would have "a specific, adverse impact upon the public health or safety" and (2) that <br />there is no feasible method to satisfactorily mitigate or avoid this adverse impact. <br />(Gov't Code S 65589.5(jX1)). The HAA defines a "specific, adverse impact" to mean <br />"a significant, quantiflable, direct, and unavoidable impact, based on ob.iectjve, <br />identified written public health or safety standards, policies, or conditions as they <br />existed on the date the application was deemed complete.' (Gov't Code $ <br />65s8e.s(jx1 xA)). <br />Section 65589.5(j) thus requires cities to determine whether a project complies with <br />the applicable, objective general plan, zoning, subdivision, and design standards. <br />The HAA defines the term "objective' to mean standards that involve no personal or <br />subjective judgment by a public official @lthat are also uniformly veriliable by <br />reference to an external and uniform benchmark or criterion available and knowable <br />by both the development applicant or proponent and the public official. (Gov. Code <br />S 65589.5(hX9)). Cities must make this determination based on a "reasonable <br />person' standard, (Gov. Code $ 65589.5(fX4)). <br />Accordingly, if a housing project complies with applicable, objective general plan, <br />zoning, subdivision, and design standards in the eyes of a reasonable person, the <br />prolect cannot be disapproved or conditioned on a lower density unless, based on a <br />preponderance of the evidence in the record, it would have a "specific, adverse <br />impact" upon public health or safety and there is no feasible way to mitigate that <br />impact without disapproving the project or requiring that it be built at a lower density. <br />lf a city's disapproval or conditional approval is challenged in court, the burden is on <br />the City to prove its decision conformed to all the conditions specified in the HAA. <br />(Gov. Code S 65589.6). <br />The courts have explained that the HAA'S findings constitute the "only" grounds for a <br />lawful disapproval of a housing development pro.iect, (Nolth Pacifica, LLC v. City of <br />Paclfica (N.D.Cal .2002\ 234 F.Supp.2d 1053, 1059-60, disapproved on other <br />grounds in Nodh Pacifica LLC v. City ot Pacinca (2008) 526 F.3d 478; see also <br />Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, <br />715-16). Moreover, the HAA creates such a "substantial limitation" on the <br />government's discretion to deny a permit that it amounts to a constitutionally <br />TRL|-58m42919580 2