North 40 Developers Lawsuit against Los Gatos

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PDF LINK:   Opening Brief in Support of Petitioners’ Verified Petition for Writ of Mandate v1

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporation ARTHUR J. FRIEDMAN, Cal. Bar No. 160867 ALEXANDER L. MERRITT Cal. Bar No. 277864 Four Embarcadero Center, 17th Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Email: affiedman@sheppardmullin. com
BERLINER COHEN, LLP
ANDREW L. FABER, Cal. Bar No. 61072
MICHAEL C. BRANSON, Cal. Bar No. 302077
10 Almaden Boulevard, 11th Floor
San Jose, California 95113-2233
Telephone: 408-286-5800
Email: andrew.faber@berliner.com
Attorneys for Petitioners
Eden Housing, Inc., SummerHill Homes, LLC
and Grosvenor USA Limited
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
SMRH:480555943.1
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
II. BACKGROUND FACTS 2
A. The State Enacts Housing Laws to Combat California’s Housing Crisis: the Housing Element Law, the Housing Accountability Act, and the
Density Bonus Law 2
B. Description of the North 40 3
C. The Town Adopts its General Plan and the North 40 Specific Plan to
Allow for Development of the North 40 4
D. The Town’s Housing Element Requires By-Right Development on the
North 40 5
E. The Project Proposes Housing that Fully Complies with all Requirements
of the General Plan and Specific Plan 6
F. The Town’s Administrative Review and Unlawful Denial of the Project 7
1. The Town’s Development Review Confirms That the Project Complies With All Objective Requirements of The General Plan
and the Specific Plan 7
2. The Town Council Denies the Project for Purely Subjective
Reasons 8
III. ARGUMENT 11
A. Standard of Review 11
1. The Housing Element Law Requires Approval “By Right” of the
Proposed Housing on the North 40 11
2. The Housing Accountability Act Requires Approval of the Project Because it Conforms to the General and Specific Plans (And the
Town has the Burden of Proof to Show Otherwise) 12
3. The Density Bonus Law Requires the Project be Approved with
the Requested Density Bonus 14
B. The Town’s Denial Of The Project Violates Its Housing Element, the
HAA and the Density Bonus Law 14
1. The Town’s Denial Violates Its Housing Element 14
2. The Town’s Denial Violates the HAA 15
3. The Town’s Denial Violates the Density Bonus Law 16
The Council’s Purported Findings Relate Only to Subjective Factors; Thus, They Cannot Legally Support the Denial
Bonus Law 21
C. The Necessary and Appropriate Remedy Is a Writ of Mandate Directing
the Town to Approve the Project 23
IV. CONCLUSION 25
Appendix A: North 40 Specific Plan, Figure 1-1, Context Map
Appendix B: Proposed Development Plans, Phase I Building Key Plan
Appendix C: North 40 Specific Plan Figure 2-1, District Plan
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TABLE OF AUTHORITIES
Page
Cases
Bright Development v. City of Tracy
(1993) 20 Cal.App.4th 783 11
California Bldg. Industry Assn. v. City of San Jose
(2015) 61 Cal.4th435 1, 2, 3, 25
Chula Vista v. Pagard
(1981) 115 Cal.App.3d 785 12
County of Orange v. Superior Court
(2003) 113. Cal.App.4th 1 25
County of San Diego v. State of California
(1997) 15 Cal.4th 68 11
Del Riccio v. Superior Court
(1952) 115 Cal.App.2d29 25
Friends of Juana Briones House v. City of Palo Alto
(2010) 190 Cal.App.4th 286 24
Friends of Lagoon Valley v. City of Vacaville
(2007) 154 Cal.App.4th 807 16, 24
Friends of Westwood, Inc. v. City of Los Angeles
(1987) 191 Cal.App.3d 259 12
Honchariw v. County of Stanislaus
(2011) 200 Cal.App.4th 1066 3, 13, 15
Lazan v. County of Riverside
(2006) 140 Cal.App.4th 453 23
Mountain Lion Found, v. Fish & Game Comm ’n,
(1997) 16 Cal.4th 105 23
North Pacifica, LLC v. City of Pacifica
(N.D.Cal. 2002) 234 F.Supp.2d 1053 3, 15, 24
Rodriguez v. Solis
(1991) 1 Cal.App.4th 495 23
Royalty Carpet Mills, Inc. v. City of Irvine
(2005) 125 Cal.App.4th 1110 22
Sequoyah Hills Homeowners Assn. v. City of Oakland
(1993) 23 Cal.App.4th 704 24
Sierra Club v. Napa County Bd. of Supr’s.
(2012) 205 Cal.App.4th 162 12
SMRH:480555943.1 -iii-
Tuolumne Jobs & Small Bus. Alliance v. Superior Court
(2014) 59 Cal.4th 1029 23
Wollmer v. City of Berkeley
(2011) 193 Cal.App.4th 1329 3,11
Statutes
Civil Code section 3532 24
Code of Civil Procedure section 1085 11
Code of Civil Procedure section 1085(a) 2
Code of Civil Procedure section 1094.5(b) 11
Code of Civil Procedure section 1094.5(f) 2, 11, 23, 25
Code of Civil Procedure section 187 25
Government Code section 65580 2, 25
Government Code section 65580(a) 2
Government Code section 65580(b) 2
Government Code section 65582(b) 2
Government Code section 65583(c)(1) 3
Government Code section 65583.2(i) 11
Government Code section 65589.5 2, 3
Government Code section 65589.5(a) 25
Government Code section 65589.5(h)(2) 13
Government Code section 65589.5(j) 13, 15, 22
Government Code section 65589.6 13,15
Government Code section 65915(b) 14
Government Code section 65915(b)(1) 3
Government Code section 65915(f)(2) 3, 16
Government Code section 65915(f)(5) 24
Government Code section 65915{j)(l) 24
Government Code section 65916(e) 14
Government Code section 66473.5 21
Government Code sections 65915-65918 2
Other Authorities
http://thelawdictionary.org/objective-standard/ 12
-v-

INTRODUCTION
California has suffered from a severe housing crisis for more than four decades. In recent years, the problems resulting from the housing shortage “have become more severe and have reached what might be described as epic proportions in many of the state’s localities.”
(‘California Bldg. Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 441 (“CBIA”).) One of the most significant causes of the housing shortage is local opposition, manifested through political pressure, to any new housing development. In response, the California Legislature has enacted a series of laws intended to alleviate the crisis and prevent denial of housing projects based on local opposition, including the Housing Element Law, the Housing Accountability Act and the Density Bonus Law.
The Town Council of Los Gatos defied each of these State laws by refusing to approve Petitioners’ application for a new housing development. The Town underwent a complex, public, multi-year process culminating with the approval and adoption of the North 40 Specific Plan in June 2015. The North 40 Specific Plan sets forth specific objective standards and criteria for development of the North 40, an approximately 44-acre mostly undeveloped area within the Town.
The Town’s Housing Element as well as State law requires that any application that complies with the objective standards of the North 40 Specific Plan (which also provides the zoning for the area) must be approved. Petitioners’ application proposes developing approximately 20.7 acres of the North 40 with 320 residential units and neighborhood-serving retail stores and restaurants. Forty-nine of the units would be designated for seniors and made affordable to Very Low Income persons (i. e., those earning less than 50% of area median income).
Petitioners’ application complies with every objective standard of the North 40 Specific Plan. In fact, by March 2016, the Town’s Planning Staff, based on its expert review and that of multiple Town advisory committees and consultants retained by the Town, determined that the Project complies with all objective standards under the Town’s General Plan and the North 40 Specific Plan. Therefore, the Town Council was obligated by State law to approve the Project.
After Petitioners erected story poles illustrating the Project layout, however, strong public opposition formed against the density mandated by the North 40 Specific Plan. Bowing to this public opposition, the Town denied the Project.
Because of this refusal to follow its mandatory duty under State law to approve the Project, the necessary and appropriate remedy is a writ of mandate directing the Town not only to rescind its denial, but also to approve the Project. (See Code Civ. Proc., §§ 1094.5, subd. (f); 1085, subd. (a).)
II. BACKGROUND FACTS
A. The State Enacts Housing Laws to Combat California’s Housing Crisis: the Housing Element Law, the Housing Accountability Act, and the Density Bonus Law
The California Legislature has declared that “the availability of housing is of vital statewide importance,” and that providing the necessary housing supply “requires the cooperative participation of government and the private sector in an effort to expand housing opportunities and accommodate the housing needs of Californians of all economic levels.”
(Gov. Code, § 65580, subds. (a), (b).) Beginning in approximately 1980, the Legislature enacted a series of laws to facilitate and encourage the construction of housing, including the three laws at issue in this case: the Housing Element Law (§ 65580 et seq.), the Housing Accountability Act (§ 65589.5), and the Density Bonus Law (§§ 65915-65918). (See CBIA, supra, 61 Cal.4th at p. 445.)
The Housing Element Law compels each city in the State to provide its fair share of housing to maximize housing opportunities throughout California. Each city must designate in the housing element of its general plan sufficient land suitable to accommodate its fair share of the region’s housing needs as determined by the applicable regional governmental organization, in this case the Association of Bay Area Governments. (§ 65582, subd. (b).) If the city cannot accommodate its regional housing need on sites designated as available, the city must also submit, for review and approval by California’s Department of Housing and Community
Development (“HCD”), a multiyear schedule of actions it will take to make additional sites available—such as zoning land for by-right development—to accommodate its share of regional housing needs. (§ 65583, subd. (c)(1). See also CBIA, supra, 61 Cal.4th at p. 445.)
The Legislature enacted the Housing Accountability Act (“HAA”) to ensure that local opposition does not prevent adequate housing from being built. {See § 65589.5.) The HAA imposes strict limitations on the ability of a city to deny a housing project that complies with its planning and zoning. The statute imposes “mandatory conditions” limiting a local government’s discretion to deny housing development projects. {North Pacifica, LLC v. City of Pacifica (N.D.Cal. 2002) 234 F.Supp.2d 1053, 1059.) Specifically, a local government must approve a housing project that complies with the applicable land use plans and zoning unless it makes findings supported by substantial evidence that the project would have “specific adverse impacts” as defined under the statute. The HAA is thus colloquially known as the ‘“Anti NIMBY’ [Not in My Back Yard] law.” {Honchariw v. County of Stanislaus (2011) 200 Cal.App.4fh 1066, .1068.)
Finally, the Density Bonus Law mandates that local governments provide a density
bonus, resulting in an increase in the total number of allowable residential units, on a progressive
scale based on the percentage of affordable housing units included in a housing project. {See §
65915, subd. (b)(1); Wollmerv. City of Berkeley (2011) 193 Cal.App.4th 1329, 1339.) The
2
statute provides no basis for denying this incentive to qualifying projects, such as this one.
B. Description of the North 40
The North 40 is a 44-acre, largely undeveloped area within the Town of Los Gatos bounded by Los Gatos Boulevard to the east, State Route 17 to the west, Lark Avenue to the south, and State Route 85 to the north. (AR000042; AR000559; AR002472; AR002615; see Context Map, AR002614, attached hereto as Appendix A.) The North 40 is one of the largest and last sites providing opportunity for infill development within the Town. (AR002472.) As a result, the North 40 has been the subject of discussion for many years in Town planning documents, including the Town’s General Plan, North 40 Specific Plan, and Housing Element. (See AR000001 [General Plan]; AR002595 [Specific Plan]; AR002336 [Housing Element].)
C. The Town Adopts its General Plan and the North 40 Specific Plan to Allow for Development of the North 40
In 2010, the Town adopted its 2020 General Plan, which specifically allows up to 750 residential units to be built on the North 40. (AR000042.) The General Plan requires the preparation of a Specific Plan for the North 40 in order to set forth objective standards for development. (AR000055.)
To implement the General Plan requirement, in 2011 the Town Council formed the North 40 Specific Plan Advisory Committee, consisting of members of the Town Council, Planning Commission and the community. (AR002597; AR003756.) The Advisory Committee held over 17 public meetings between March 2011 and October 2013, followed by two Planning Commission public hearings and eight Town Council public hearings. (AR002621; AR003756.) Petitioners actively participated throughout this lengthy process. (See, e.g., AR006533-34; AR009729; AR010111-12.) In January 2015, the Town Council certified the Environmental Impact Report (“EIR”) for the North 40 Specific Plan and then adopted the Specific Plan in June 2015. (AR002266; AR002589.) Neither was legally challenged.
The North 40 Specific Plan (“Specific Plan”) divides the North 40 into three planning districts: (1) the Lark District, located at the northwest comer of Los Gatos Boulevard and Lark Avenue, allows for a mix of residential, multi-family housing types; (2) the Transition District, located in the central portion of the North 40, provides a transition area between the Lark and Northern districts; and (3) the Northern District, bordered on two sides by Highways 17 and 85, is designated for commercial and entertainment uses (including hotel and office); residential uses are allowed but heavily constrained (e.g., only above commercial spaces and subject to a maximum building height of 35 feet). (AR002629-31.) Various chapters of the Specific Plan address Land Use Goals and Policies; Design Guidelines; Circulation and Streetscape; Infrastructure and Public Facilities; and Plan Implementation, Phasing and Administration. Each chapter includes general, subjective statements of goals and policies (e.g., encouraging “the look and feel of Los Gatos”) followed by certain statements of objective standards for implementing those goals and policies (e.g. , building heights, percentage open space requirements and the like).
D. The Town’s Housing Element Requires By-Right Development on the North 40
Concurrent with the development of the North 40 Specific Plan, the Town began revising the Housing Element to its General Plan. The revision process begins with the Association of Bay Area Governments identifying a Regional Housing Needs Allocation (“RHNA”) for an eight-year period, and allocating the RHNA to its member communities. (AR002418). Each community must then adopt plans that will allow for it to meet its RHNA in a specific time frame. (Ibid.) The RHNA for the Town is 619 total housing units for families of various income levels. (Ibid) The State’s Housing Element Law required that the Town designate in its 2015¬2023 Housing Element sites that could successfully accommodate the Town’s RHNA number.
The Town formed a Housing Element Advisory Board made up of Town Council members, Planning Commissioners, General Plan Committee members, and residents appointed by the Town Council. (AR005124; AR002340.) After more than 15 meetings and substantial public input, in September 2014, the Town submitted its draft housing element to HCD for review and approval. (AR002343-45; Stipulation Regarding Additional Records for Consideration at Trial (“Stipulation”), Exh. A, p.l.) HCD, however, rejected the draft and required the Town to designate sites to be rezoned for “by-right” housing development at a minimum density of 20 units per acre. (Stipulation, Exh. A, p. 5.)
The Town, in response, selected the North 40 for this by-right development. (AR005125- 26.) The Town’s Housing Element adopted in May 2015 thus includes the requirement that the Town prepare a Specific Plan for the North 40 that rezones the North 40 for by-right residential development of a minimum of 270 units (plus density bonus units). (AR002368.) HCD approved the Town’s Housing Element expressly conditioned, however, on the Town’s commitment to rezone the North 40 for this by-right residential development. (AR002587-88.) The Specific Plan adopted by the Town in June 2015 implements this zoning commitment. (See AR002589.)
E. The Project Proposes Housing that Fully Complies with all Requirements of the General Plan and Specific Plan
In the Project, Petitioners propose to develop 320 residential units of diverse types, including 49 Very Low Income (affordable to those earning 50% of area median income, see AR007158), senior affordable apartments to be built by Eden Housing, an affordable housing specialist. In addition, the Project includes 180 garden cluster and rowhomes, 80 courtyard condominiums, two live-work lofts and eight one and two-bedroom apartments above retail. (AR003790-91; AR004295.) The Project also proposes 59,320 square feet of neighborhood-serving retail stores and restaurants to be located in the Transition District, anchored by a 16,380-square-foot specialty market. (AR004295.) The Project would include a Central Community park and a network of community gardens and orchard trees, linked together by paseos and a multi-modal path. (AR004295-97.) The Project contains 39% of open space area, far exceeding the Specific Plan’s requirement of 30%. (AR004296; see generally Phase I Building Key Plan, AR003790, an original copy attached hereto as Appendix B.j
The Project complies with all objective standards under the Town’s General Plan and the Specific Plan. (AR009716-27 [Matrix illustrating Project’s compliance with Specific Plan]; AR010028-33 [Matrix illustrating Project’s compliance with General Plan]; AR003754, AR003769-71, AR005574, AR005583, AR007160 [Planning Staff reports to Planning Commission and Town Council].) Consequently, the only public processes required were architecture and site review and a vesting tentative map, and under State law the Town had a mandatory duty to approve the Project.
III
F. The Town’s Administrative Review and Unlawful Denial of the Project
1. The Town’s Development Review Confirms That the Project Complies With All Objective Requirements of The General Plan and the Specific Plan
Petitioners submitted their application on November 14, 2013. (AR003773; AR011466.) Between October 2015 and February 2016, the Project came before the Town’s Conceptual Development Advisory Committee (AR003040, AR003091), Historic Preservation Committee (AR003138), Bicycle and Pedestrian Advisory Committee (AR003499) and Transportation and Parking Committee (AR003510) (and later came before the Community and Senior Services Commission (AR005286), Arts and Culture Commission (AR006788) and Parks Commission (AR005100)). Petitioners made many revisions to the Project in response to public input, as well as recommendations from the Town’s Staff and consultants. (See e.g., AR004369; AR009711; AR011044.)
On March 30, 2016, Planning Staff submitted to the Planning Commission its report, which contained a detailed analysis of the Project’s consistency with the General Plan and Specific Plan. Staff concluded: “Based on the analysis provided above, the proposed applications meet the technical requirements of the North 40 Specific Plan, the goals and policies of the General Plan, and the Town’s Housing Element.” (AR003770.) The Town also retained a consulting architect, Cannon Design Group, to review the Project. Cannon reported that “[t]he overall plan has remained consistent with the North 40 Specific Plan,” and that Cannon has “no other recommendations for further changes.” (AR004373.)
The Project encountered little public opposition until Petitioners were required to install hundreds of “story poles” pursuant to Town policy. (See AR003771). By May 2016, Petitioners had installed more than 500 story poles with orange netting, which remained in place for approximately three months. (AR005373-74, AR005376.) The story poles generated neighborhood opposition to the density of the Project, even though opponents generally acknowledged it was consistent with the objective standards of the Specific Plan. (See, e.g., AR005944 [“We are a town, not a city. … I have never felt good about the North 40. Now that
I see the orange plastic as I drive by on Hwy. 17,1 am upset. We have NetFlix to the right and the North 40 to the left on 17. Our town does not need this. Don’t make a forever mistake.”].)
The Town delayed its consideration of the Project to hold a Joint Special Study Session with the Town Council, Planning Commission and local school districts regarding the Specific Plan. (AR005084; AR005097-98.) During the Joint Study Session, the Town’s Attorney stated in response to comments raised regarding the Project’s density that the Town may not reduce the number of proposed units because the Specific Plan authorizes “by-right” development of the requested units, pursuant to the Housing Element and State law. (AR005232-33.) He explained further that the Town’s discretion in reviewing the Project is limited to confirming its compliance with Specific Plan standards. (Ibid) Disregarding these instructions, in July 2016 the Planning Commission recommended denial of the Project based on entirely subjective criteria rather than on objective standards. (AR006506; AR006691-94; AR007154.)
2. The Town Council Denies the Project for Purely Subjective Reasons Planning Staffs report to the Town Council for the August 9, 2016 Council hearing restated Staffs conclusion that the Project complies with all applicable objective standards. Staff explained:
The proposed applications went through the Town’s development review process, including review and evaluation by Planning, Building, and Engineering staff, referrals and evaluations by outside agencies, and review by the Town’s Consulting Architect, Historic Preservation Committee (HPC), and Conceptual Development Advisory Committees (CDAC)… . [f] Based on the analysis in earlier reports, the proposed applications meet the technical requirements of the Specific Plan. These are: Development Capacity, Development Standards, and Design Guidelines.
(AR007159-60, emphasis added.)
The Town Council heard extensive public testimony regarding the Project during hearings on August 9 and 11, 2016. (AR006865-7095; AR010103-264.) During the August 16 Council hearing, Council members moved unsuccessfully both to approve and to deny the Project. Council Members Jensen and Rennie voted to approve the Project. (AR010549.) Council Member Jensen stated that the Council was legally required to approve the Project because it complied with all objective standards under the Specific Plan. (AR010592.) Council
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Member Rennie concurred, adding that the Town would be sued – and would lose the case – if the Council denied the Project. (ARO10580-81.) He proposed, however, approving the Project subject to nine modest design changes for ministerial approval by the Planning Director. (AR010549-550; AR010585-90.) This motion was not supported by Council Members Spector, Sayoc and Leonardis (collectively, the “Majority”) (AR010549-50; AR010601-02.)
Council Member Spector then moved to deny the Project based on subjective criteria rather than objective standards. (AR010550; AR010603.) She stated that the Project is inconsistent with “the look and feel [of the Town] based upon what I… have seen what the Town looks like.” (ARO 10577). Council Member Sayoc added that the “biggest reason” why she could not support the Project was because the “intent” of the Specific Plan was, “at least on my part, that [the housing] was going to be spread out… .” (AR010594-95.) Council Member Spector’s motion, however, also failed because Council Member Leonardis stated that he needed more information before he could decide. (ARO 10596-99.) The Council therefore adopted a motion requesting, inter alia, opinions from outside legal counsel and the HCD, and continued the item to September 1. (ARO 10550-51; ARO 10605-12.)
On August 25, HCD responded to the Town Council by stating that the Project is subject to “by-right” development and met the eligibility requirements for the requested density bonus. (AR011201-02.) The following day, the Town’s outside counsel’s letter to the Town Council was equally supportive of the Project, rejecting each challenge to the Project raised by certain Project opponents and concluding that the Project satisfied all Density Bonus Law requirements. (AR011166-74.)
Planning Staff’s report to the Council for the September 1 hearing reminded the Council of the legal constraints on its review of the Project, particularly in light of the HCD’s and outside counsel’s responses. Staff explained: “As has been continually stated, the Town can only modify or deny the project based upon its determination that the application does not comply with objective North 40 Specific Plan standards and criteria. This conclusion is confirmed by the correspondence from HCD . . . .” (AR010938.) However, the Majority disregarded Staff’s admonition, along with the advice of the Town’s Attorney, the HCD, and the Town’s outside counsel.
During the September 1 Council hearing, Council Member Sayoc moved to deny the Project, supporting her motion with three reasons – none of which are based on any failure of the Project to comply with any objective standard under the Specific Plan. First, she stated that she has “significant issues” with the layout which “does not make sense to me.” (ARO 10898=99.) Second, she stated that in her mind there is ambiguity in the Specific Plan regarding whether the applicants are entitled to develop all of their proposed residential units within the Lark and Transition Districts (despite their clear right to do so under the Specific Plan, discussed infra pp. 16-17, and the fact that all residential allocations are not exhausted by the Project). (AR010899.) Finally, she questioned whether a better project may come along. (AR010900.) She stated: “This may be the only one, but I hesitate to award a project with the majority of the housing allocation that could disproportionally hurt chances of a better site design in the future.” {Ibid) The Town Council then by a 3-2 vote denied the Project. (AR010925.)
Joining Council Members Spector and Sayoc to deny the project, Council Member Leonardis also expressed opposition based on subjective criteria rather than objective standards. (See AR010816.) His principal objection to the Project was that the Phase 1 Project would develop only a part of the North 40. He stated: “You had a future promise of commercial, perhaps a hotel and some other things, but right now what we have is kind of a housing development, and we have uncertainty moving forward what will actually go in these other spots,” and “I don’t like that uncertainty.” (AR010885-86.) He ignored the fact that the Specific Plan expressly states: “It is anticipated that the Specific Plan will be implemented over time and in more than one phase.” (AR002749.)
On September 6, 2016, the Town Council adopted Resolution 2016-046 (the “Resolution”) denying the Project. (AR011466-73.) The Resolution, however, contained no findings under the Town’s Housing Element, the F1AA or the Density Bonus Law, and no finding that the Project failed to comply with any objective standards under the Specific Plan. Petitioners timely filed this action on October 6, 2016.
III. ARGUMENT
A. Standard of Review
The Court’s review in this case “extends to ‘whether the [Town] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the [Town] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.’” {Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1338, citing Code Civ. Proc., § 1094.5, subd. (b).)
In determining whether a local agency’s actions conform to the procedures required by law, courts apply the applicable statute or ordinance at issue to the agency’s actions. {Bright Development v. City of Tracy (1993) 20 Cal.App.4th 783.) Courts do not grant deference to a city’s interpretation of State law. {County of San Diego v. State of California (1997) 15 Cal.4th 68, 109.)
1. The Housing Element Law Requires Approval “By Right” of the Proposed Housing on the North 40
The Town’s Housing Element includes mandatory requirements that the Town rezone the North 40 to authorize by-right development of housing projects that comply with objective Design Guidelines. The HCD required the Town to rezone the North 40 for multi-family by¬right housing for a minimum of 270 units (not counting density bonus units) as a condition to certifying the Town’s Housing Element. (AR002587.) The Town’s Housing Element thus states that after the Specific Plan is adopted, implementing the required zoning: “[O]wner occupied or multiple family development will be by-right as defined by not requiring a conditional use permit or other discretionary approval; however, design review according to objective standards contained in the Specific Plan can occur … .” (AR002368, emphasis added.)
Under the Town’s Housing Element, if a proposed housing project complies with the objective criteria of the Town’s Design Guidelines, the Town must approve it. The Town’s Housing Element states:
The Specific Plan would provide certainty regarding objective criteria in the form of development standards and design guidelines that would be implemented through “by right development” in the consideration of Architecture and Site applications. This process involves site and architectural review and if a proposal meets the objective criteria in the Design Guidelines, then the project is approved ….
(AR002357, emphasis added.) The plain meaning of “objective standard” is: “A standard that is based on factual measurements . . . .” (http://thelawdictionary.org/objective-standard/)
California courts similarly have described objective standards as fixed, measurable or quantifiable.
2. The Housing Accountability Act Requires Approval of the Project Because it Conforms to the General and Specific Plans (And the Town has the Burden of Proof to Show Otherwise)
The HAA similarly mandates that if a proposed housing project complies with the objective standards of the applicable planning and zoning, the local agency must approve the project unless it makes findings supported by substantial evidence that it would cause “specific adverse impacts,” as narrowly defined in the statute. Moreover, in any action challenging the validity of a city decision disapproving a housing project, the city bears the burden of proof that its decision has “conformed to all of the conditions specified in [the HAA].” (§ 65589.6.)

Section 65589.5, subsection (j), of the HAA applies to the Project and states:
(j) When a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete, but the local agency proposes to disapprove the project or to approve it upon the condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon written findings supported by substantial evidence on the record that both of the following conditions exist:
(1) The housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved or approved upon the condition that the project be developed at a lower density. As used in this paragraph, a “specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies or conditions as they existed on the date the application was deemed complete.
(2) There is no feasible method to satisfactorily mitigate or avoid the adverse impact identified pursuant to paragraph (1), other than the disapproval of the housing development project or the approval of the project upon the condition that it be developed at a lower density.
(Emphasis added.)
Subsection (j) was amended in 1999 to add the term “objective” in the first clause, and the terms “quantifiable, direct” and the clause “based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete.” {See Honchariw, supra, 200 Cal.App.4th at pp. 1076-77.) These changes strengthened the law “by taking away an agency’s ability to use what might be called a ‘subjective’ development policy … to exempt a proposed housing development project from the reach of subdivision (j).” (Ibid.)
1 The Project falls under the statute’s definition of housing development project because it is a “Mixed-use development consisting of residential and nonresidential uses in which nonresidential uses are limited to neighborhood commercial uses…” (§ 65589.5, subd. (h)(2). See also AR010131-32.)
3. The Density Bonus Law Requires the Project be Approved with the Requested Density Bonus
The Density Bonus Law mandates that local governments “shall” provide qualifying applicants the density bonus authorized under the statute. (§ 65915, subd. (b).) The statute provides no basis for denying these incentives to qualifying projects. Subdivision (e) further provides: “In no case may a [Town] apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities … permitted by this section.” (§ 65916, subd. (e).)
B. The Town’s Denial Of The Project Violates Its Housing Element, the HAA and the Density Bonus Law
The Town had a mandatory duty to approve the Project because it is consistent with the objective criteria of the Specific Plan, and because the Town did not, and cannot, find based on substantial evidence that the Project would have a “specific adverse impact” as defined under the HAA.
Notably, Planning Staffs report to the Town Council on August 4, 2016 stated: “Based upon the Town’s Housing Element, the Town cannot require a Conditional Use Permit, Planned Unit Development Permit, or other discretionary review or approval for the applications. In addition, the applications are entitled to ‘by-right’ development. This means that the Town must only apply the objective standards found in the North 40 Specific Plan in its review, analysis and determination whether to approve or deny the applications.” (AR007156, emphasis added.) Planning Staffs report continued: “[T]he Town cannot use subjective criteria and findings to condition or deny the Planning Applications.” (AR007156.) Disregarding this instruction, as well as similar admonitions from the Town’s Attorney, the Town’s outside counsel and the HCD, the Majority denied the Project based on purely subjective criteria.
1. The Town’s Denial Violates Its Housing Element
The Town has a mandatory duty under its Housing Element to approve “by right” any proposed housing project in the North 40 that complies with the objective standards of the Specific Plan (AR002368, AR002372-73.) Because, as shown, the Project fully complies with the objective standards of the Specific Plan, and the Town made no findings to the contrary
(infra pp. 16-21), the Town clearly violated its mandatory duty under its Housing Element to approve the Project.
2. The Town’s Denial Violates the HAA
The HAA also requires that the Town approve housing projects that comply with the objective standards of applicable planning and zoning requirements, unless it makes findings supported by substantial evidence demonstrating the project would cause “specific adverse impacts” as defined in the statute. (§65589.5, subd. (j); North Pacifica, supra, 234 F.Supp.2d at p. 1059 [“Section 65589.5(j) thus imposes mandatory conditions limiting the City’s discretion to deny the permit.”].) Moreover, the Town bears the burden in this action of proving that its decision “conformed to all of the conditions specified in Section 65589.5.” (§ 65589.6.) The Town cannot satisfy this burden of proof because it neither considered nor made findings under the HAA, and because it denied the Project based on subjective criteria, despite the fact that it complies with all objective standards under the General Plan and Specific Plan. (See infra pp. 16-21.)
Honchariw is instructive. In that case, the court granted a developer’s petition for writ of mandate setting aside the County’s denial of a housing project where the County made no findings under subsection (j) of the HAA, but instead denied the project based on its alleged non-conformance with County Code provisions regulating subdivision of the Project’s proposed lots. (Honchariw, supra, 200 Cal.App.4th at p. 1079.) The court held that the County’s denial based on its local tentative map requirements “does not relieve the County from compliance with section 65589.5(j) if the threshold compliance standards of that statute are met and if the County denies approval for reasons other than compliance with ‘applicable, objective general plan and zoning standards and criteria, including design review standards, in effect… .’” (Ibid., emphasis added.) Like the facts in Honchariw, the Town was not relieved from compliance with subsection (j) of the HAA because: (1) the Project complies with the threshold requirements of subsection (j); and (2) the Town denied the Project for subjective reasons rather than for “applicable, objective general plan and zoning standards and criteria.”
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3. The Town’s Denial Violates the Density Bonus Law
Petitioners are entitled to a 35 percent density bonus, increasing the maximum base density from 237 units to 320 units, because the Project includes 49 very low income senior housing units. (AR006282, AR007158; §65915, subd. (f)(2).) The Project provides many more Very Low Income units than required to qualify for the requested density bonus. (See § 65915, subd. (f)(2).) Under Section 65915, subdivision (a), local governments have “a mandatory duty” to provide qualifying applicants the density bonus incentives authorized under the density bonus statute. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 825.) The Town thus violated this mandatory duty in denying the Project.
4. The Council’s Purported Findings Relate Only to Subjective Factors;
Thus, They Cannot Legally Support the Denial
Although the Council’s reasons for denial were purely subjective and in response to neighborhood opposition, the Staff did propose findings that the Council adopted to attempt to justify the denial. But since, as the Staff advised the Council, the Project complied with all objective criteria under the General Plan and Specific Plan, none of the purported findings are based on objective criteria as required by the Housing Element Law and the HAA, nor are they supported by substantial evidence in the record. We respond to each of the Town’s legally insufficient findings denying the Project in turn below:
Finding a: The proposed project overly concentrates all of the residential units that can be built pursuant to the North 40 Specific Plan and the General Plan Housing Element on the southern portion of the North 40 Specific Plan area and is therefore inconsistent with Specific Plan Section 2.5; Standard 2.7.3; Policy 5.8.2; and the Residential Unit Size Mix and Table set forth on page 6-14. This negatively affects the site layout and disproportionally hurts the chances of better site design in the future. (AR011471.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. The Project proposes 193 residential units in the Lark District and 127 units in the Transition District, which thus allows for 45 additional units to be built in the future in the Northern District. (AR006500, AR006609.) The Specific Plan has no objective standard precluding this distribution of residential units or requiring any other distribution. The Town’s Community Development Director informed the Town Council of this precise fact during the Joint Study Session. (AR005165.) None of the Specific Plan provisions cited in this finding even address, much less impose an objective standard regarding the location or distribution of residential units. Section 2.5 states the Specific Plan goal of offering a compatible mix of land uses, but does not discuss the location or distribution of residential units. (AR002636.) Standard 2.7.3 states that the Specific Plan area should accommodate a mix of residential product types, but it does not address the location or distribution of residential units. (AR002651-52.) Policy 5.8.2 discusses public schools, but also does not address the location or distribution of residential units. (AR002744.) The same is true regarding the Residential Unit Size and Table set forth on page 6-14. (AR002762.)
Finding b: The proposed project is inconsistent with North 40 Specific Plan Section 2.3.1 and its requirements for lower intensity residential uses in the Lark District. (AR011471.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. Section 2.3.1 states the land use policy that “[ljower intensity residential and limited retail/office uses are envisioned” for the Lark District. (AR002629.) It provides no objective criteria for measuring “lower intensity.”
Nonetheless, the record demonstrates that the Project satisfies even this subjective policy. The Planning Staff supported its determination that the Project complies with all Specific Plan development standards by observing, inter alia, that development in the Lark District will be less intense than the maximum allowed under the Specific Plan and in comparison to the Transition District. Thus, while the Specific Plan only requires that at least 15% of Lark District buildings be two stories (with the rest being three stories), the Project has 29% (AR009716.); the Lark District provides 4.79 acres of open space (42.5%), whereas the Transition District provides 3.43 acres (34.6%) (AR009712); lot coverage area of the Lark District at 29.4% is lower than the Transition District at 33.9% (AR009712); and the anticipated daily vehicular trip generation for the Lark District of 785 trips also is far less than the 3,034 anticipated daily trips for the Transition District (AR009712). Finally, the Project’s building heights in the Lark District are restricted to 25 feet and 35 feet, whereas the Transition District has 45-foot affordable housing over the Market Flail. (AR010483.)
Finding c: The proposed project buildings 18 through 27 are inconsistent with North 40 Specific Plan policy requirement that the Lark District consist of lower intensity residential development with office, retail, personal services, and restaurants along Los Gatos Boulevard. (AR011471.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. To the extent the Town restates its “lower intensity” argument from finding b, Petitioners incorporate their response above. (Supra p. 17.) Moreover, while the Specific Plan permits development of commercial uses along Los Gatos Blvd in the Lark District, it imposes no requirement to do so. To the contrary, the EIR for the Specific Plan specifically contemplated and analyzed the potential impacts of residential development along Los Gatos Boulevard. (AR000801, AR002039.)
Finding d: The proposed project buildings 24 and 25 are inconsistent with North 40 Specific Plan Section 4-2 as it eliminates a “fourth access point off of Los Gatos Boulevard closer to the Lark Avenue intersection;” are inconsistent with North 40 Specific Plan page 3-1, Section 3.1 Architectural and Site Character Goals and Policies, Policy DG5 Residential Siting that requires residential development to be located to minimize traffic, noise, and air quality impacts; and are inconsistent with the Commercial Design Guidelines beginning on page 3-2 which guide site plan development. (AR011471-72.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. The Specific Plan has always required exactly three access points on Los Gatos Boulevard (See Specific Plan District Plan, AR002631, attached hereto as Appendix C) and does not require a fourth access point. Section 4.2 states only that “[tjhere is also an opportunity for a fourth access point off of Los Gatos Boulevard closer to the Lark Avenue intersection.” (AR002708, emphasis added.) Accordingly, the EIR for the Specific Plan contemplated and analyzed only three access points along Los Gatos Boulevard. (AR000829-33, AR001780.) Moreover, the Town’s Public Works Director explained to the Planning Commission on July 13 that there were numerous engineering concerns associated with adding a fourth access in the area near Buildings 24 and 25, including queuing and congestion, turh lane access issues, grade differences between street level and property level, and consequently Planning Staff recommended against it. (AR006646-48.)
Additionally, the Specific Plan does not prohibit residential development of Buildings 24 and 25 located along Los Gatos Boulevard. In fact, the Specific Plan EIR specifically
contemplated and analyzed residential development along Los Gatos Boulevard. (AR000801.) Further, the Town’s Public Works Director explained to the Planning Commission that Buildings 24 and 25 are not well-suited for commercial uses because access to these sites is impeded by the turn lane from southbound Los Gatos Boulevard to westbound Lark. (AR006646-48.)
Section 3.1 merely provides “Architectural and Site Character Goals and Policies.” (AR002659.) These include the “Residential Siting” policy of locating “residential development to minimize traffic, noise and air quality impacts.” (AR002659.) The EIR found no such impacts in this area. (See AR000826-27 [traffic]; AR000799 [noise]; AR000687 [air quality].) Importantly, the Project complies with the Specific Plan’s objective residential design guidelines for Los Gatos Boulevard that implement this policy, which include a minimum of 30-foot setbacks, 25-foot height restrictions, and landscaping of the setbacks with orchard trees. (AR002645 [Table 2-5, No. 3].)
Finding e: The proposed project is inconsistent with North 40 Specific Plan Policy Section 2.4 and Appendix C of the Specific Plan as it does not address the unmet housing needs for senior and “Gen. Y.” (AR011472.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. The Town’s Community Development Director informed the Planning Commission on July 13, 2016 that “[tjhere’s nothing in the Specific Plan that requires an Applicant to meet all of the unmet needs of the Town.” (AR006674.) Therefore, he added, “if it does meet one or more of them; then it’s clearly meeting unmet needs. There’s no threshold there that’s an objective standard that says you have to meet the certain objective unmet needs.” (AR006675, emphasis added.)
The record demonstrates that the Project more than adequately satisfies this policy objective. Section 2.4 does not provide any objective standards but instead lists as permitted types of residential units: “condominium, cottage cluster/garden cluster housing, live-work flats, multi-family flats, multiplexes, rowhouses and townhouses,” and further provides: “Residential
development is focused on multi-family-housing types and shall be designed to attract the unmet housing needs of the community.” (AR002632.) Appendix C of the Specific Plan states: “At the time of this Specific Plan, some of the unmet needs of the Town of Los Gatos include residential product types that respond to emerging needs of the senior, empty nester, and young adult population.” (AR002943.) The Project clearly provides the diversity of housing types, including condominiums, multi-family, live-work, rowhouses and townhouses that the Specific Plan identifies as responding to the emerging needs of the young adult population. (AR006320.)
With respect to seniors and empty nesters, the Project provides 49 senior affordable residential units, as well as 10 market-rate apartments with elevator access. (AR003628.)
Finding f: The proposed project is inconsistent [with] the Residential Unit Size Mix and Table Set forth on page 6-14 of the Specific Plan and the Residential Unit Size Mix [and] should have smaller units to come closer to the income distribution of affordable housing identified in the Town’s certified General Plan Housing Element for 156 very low, 84 low, and 30 moderate income units. (ARO11472.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. The Residential Unit Size Mix and Table at page 6-14 expressly states that it imposes no objective requirements: “The Specific Plan encourages a mix of residential types and sizes but does not specify exact sizes…. A hypothetical example of how the mix of residential uses can be realized is illustrated in the table below. This table is only intended as an example of how a mix of residential uses could be proposed on the North 40. It does not represent a target or requirement.” (AR002762, first emphasis in original, second emphasis added.)
Nonetheless, the record demonstrates that the Project is consistent even with the foregoing hypothetical examples. The hypothetical Table includes units ranging in size from 500 to 2,350 square feet, whereas the Project’s units range in size from 550 to 1,999 square feet. (AR006320; AR009712.) Thus, on average, the units proposed for the Project are considerable smaller than those included in the Table; indeed, the total square footage of the residential units proposed for the Project is substantially less than the maximum total square footage authorized by the Specific Plan. (See AR009716, AR002652.)
The income distribution of affordable housing units identified in Table 6-1 of the Town’s Housing Element, titled “Summary of Community Strategies to Meet RHNA,” similarly does not impose objective standards regulating either the size or pricing of residential units in the North 40. (AR002465.) The HCD confirmed this fact in response to Petitioners’ request for clarification, stating: “RHNA is a housing need ‘capacity’ planning requirement (sites, zoning, and densities) to accommodate and facilitate housing development, among four income categories by private sector housing developers; RHNA is not a ‘production’ requirement.” (AR009697, emphasis in original, citing § 65583, subd. (b)(2).) The HCD explained further: “[T]he Developer can choose to propose a housing project with a different configuration of unit rent or sale levels for different income categories resulting in some or all of the development not satisfying the RHNA income category goals applicable to a particular site.” (AR009697, emphasis in original.)
Finding g: The proposed project, specifically buildings 18 through 27, would result in an anomaly of residential uses within an existing commercial land use context. (AR011472.)
Response: There is no evidence in the record to support such a finding; furthermore, it is not based on any objective standard. As shown {supra pp. 16-18), the Specific Plan clearly does not prohibit residential development of buildings 18 through 27. {See AR000801.)
Finding h: The only promised Below Market Rate housing is the 49 units above Market Hall and the remainder would have home values estimated at $900,000 to $1,500,000 requiring a 20 percent down payment and income of approximately $130,000 to $200,000 per year. (AR011472.)
Response: This finding does not even reference, much less attempt to identify any purported inconsistency with any objective standard in the Specific Plan. It therefore provides no basis for a Project denial. Moreover, as shown {supra p. 3, fn. 2), the Project provides substantially more Very Low Income units than required to trigger the maximum, 35% density bonus under the Density Bonus Law.
5. The Subdivision Map Act Does Not Relieve the Town From Compliance with its Housing Element, the HAA and the Density Bonus Law
The Town’s Resolution denying the Project makes no findings under its Housing Element, the HAA or the Density Bonus law, and instead relies solely on Section 66473.5 of
California’s Subdivision Map Act (“SMA”), requiring that tentative maps be “consistent” with general or Specific Plans, to support the Town’s denial of the Project based on findings of alleged “inconsistency” with subjective criteria. (AR011471-73.) Thus, although the Town’s Staff, Town Attorney and the HCD repeatedly advised the Town Council that its discretion is limited because of the Project’s “by-right” development status under the Housing Element and the HA A to a determination of whether the Project complied with the Specific Plan’s objective standards, remarkably, the Town’s findings solely reference the SMA’s plan-consistency requirement, apparently in an effort to circumvent the tight constraints on the Town’s discretion imposed by its Housing Element and the HAA.
The Town’s reliance on the SMA in an apparent attempt to circumvent the requirements of its Housing Element and the HAA, however, lacks legal merit because the denial was not based on any actual subdivision issues, but rather solely on claims that the Project was “inconsistent” with the Majority’s application of subjective criteria under the Specific Plan. (AR011471-73.)
Where multiple statutes arguably address the same subject—in this case, a local agency’s authority to review a proposed housing development for consistency with the municipality’s applicable land use plans—’’the more specific one will control unless they can be reconciled.”
(.Royalty Carpet Mills, Inc, v. City of Irvine (2005) 125 Cal.App.4th 1110, 1118.) Here, the SMA can be reconciled with State Housing Law and the HAA. A local agency in reviewing a proposed housing development may enforce the requirements of the SMA and its local implementing ordinance. However, in reviewing such housing projects for consistency with applicable land use plans, notwithstanding the fact that the SMA requires that tentative maps be “consistent” with such planning documents, the more specific and heightened standards under the HAA and ordinances adopted pursuant to State Housing Element Law, limiting the Town’s review to a determination of project “compliance” with “objective” planning and zoning standards, must control. (Ibid; § 65589.5, subd. (j); AR002368, AR002372 [Housing Element].)
Any other interpretation would lead to absurd results, rendering the Legislature’s amendment of subdivision (j) of the HAA in 1999, adding the term “objective” to the first clause
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(see infra p. 13) surplusage, contrary to settled rules of statutory interpretation. (Tuolumne Jobs & Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) It also would contravene the legislative purposes of the Housing Element Law and HAA to facilitate housing. (See Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 506 [“It is well established that statutes must be given reasonable construction that conforms to the apparent purpose and intention of the law makers … .”].)
C. The Necessary and Appropriate Remedy Is a Writ of Mandate Directing the Town to Approve the Project
A writ of mandate directing the Town to approve the Project is necessary and appropriate for several reasons.
First, Code of Civil Procedure section 1094.5, subdivision (f), expressly authorizes this remedy. It states in relevant part: “Where the judgment commands that the order or decision be set aside, [the court] may order the reconsideration of the case in light of the court’s opinion and judgment and may order respondent to take such further action as is specially enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in respondent.” (Code Civ. Proc., § 1094.5, subd. (f), emphasis added.)
A writ of mandate directing the Town to approve the Project on remand is precisely “such further action … specially enjoined upon [the Town] by law.” Specifically, the Town has a mandatory duty to approve the Project under the clear mandates of its Housing Element, the HAA and the Density Bonus Law. “Where a statute requires an officer to do a prescribed act upon a prescribed contingency, his functions are ministerial. Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.” (Lazan v. County of Riverside (2006) 140 Cal.App.4th 453, 460, emphasis added.) “A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal subjective judgment in deciding whether or how the project should be carried out.” (Mountain Lion Found, v. Fish & Game Comm ’n, (1997) 16 Cal.4th 105, 117, emphasis added.)
The Town’s Housing Element expressly required the prescribed act – “then it is approved” – upon the prescribed contingency – the Project’s consistency with the objective standards under the Specific Plan – as acknowledged by the Town’s Staff, the Town’s Attorney, the HCD and the Town’s outside counsel. {Supra pp. 7, 9-12.) In fact, the HCD informed the Town Council that because the Project was entitled to by-right development, it actually should not have been subject to any public hearings. (AR011200-02.) The Town therefore has a mandatory duty under its Housing Element to approve the Project based on its compliance with the objective standards of the Specific Plan.
The Town likewise has a mandatory legal duty under the HAA to approve the Project because the Project complies with all objective standards under the Specific Plan, and because the Town has not, and cannot make “specific adverse impact” findings as defined under the HAA {supra pp. 7, 9-10 and 12-14; North Pacifica, supra, 234 F.Supp.2d at p. 1059.) The Town also has a mandatory legal obligation under the Density Bonus Law to grant Petitioners’ request for a density bonus. (AR003596-97; AR007159; Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 825 [Section 65915 imposes a “mandatory duty on local governments”].) As the HCD informed the Town Council: “Once an applicant meets eligibility criteria, a density bonus and concessions and incentives are entitled and should, in and of themselves, not require discretionary action. (GC Sections 65915(f)(5) and (j)(l).) Specifically, no denial process is available for a density bonus.” (AR011201.)
Second, remanding this case for further findings would be an idle act because, as shown, the Town has a clear, mandatory duty to approve the Project, and because the administrative record demonstrates that the Project complies with all applicable objective standards. {See Sequoyah Hills Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 715-716 [lower density project alternative under CEQA not feasible as a matter of law because no evidence supports the required “specific adverse impact” finding to reduce density]; Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 314 [because issuance of the permit was mandatory, referring the permit application to the board on remand “can serve no good purpose”].) “The law neither does nor requires idle acts.” (Civ. Code, § 3532.)
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Finally, remanding this case for further findings inherently threatens the viability of the Project and thus undermines the public policies underlying “by-right” development rights under the Town’s Housing Element, the HAA and the Density Bonus Law. (CBIA, supra, 61 Cal.4th at p. 445; §§ 65580, 65589.5, subd. (a), 65589.6, 65915, AR002368; AR002372-73 [Housing Element]. See also County of Orange v. Superior Court (2003) 113. Cal.App.4th 1,12 [recognizing delay threatens viability of development projects].) The Court therefore may, and should if necessary, exercise its inherent authority in crafting an appropriate remedy to achieve justice. (DelRiccio v. Superior Court (1952) 115 Cal.App.2d 29, 31 [“In the exercise of equitable jurisdiction the court undoubtedly has broad discretionary powers to take whatever action is necessary in the interests of justice in order that its decrees will not fail to accomplish their purpose.”]. See also Code Civ. Proc., § 187.)
IV. CONCLUSION
For all of the foregoing reasons, Petitioners respectfully submit that the Court should grant this Petition and issue a writ of mandate directing the Town to rescind its unlawful Resolution denying the Project and further enjoining the Town, pursuant to Code of Civil Procedure section 1094.5, subsection (f), to approve the Project.
Dated: January I 2»-, 2017
Dated: January _V}_, 2017 BERLINER COHEN, LLP
APPENDIX A
NORTH 40 SPECIFIC PLAN FIGURE 1-1, CONTEXT MAP

APPENDIX B
PROPOSED DEVELOPMENT PLANS
PHASE I BUILDING KEY PLAN

APPENDIX C
NORTH 40 SPECIFIC PLAN
FIGURE 2-1, DISTRICT PLAN
LAND USE AND DEVELOPMENT STANDARDS
I_±J
LARK DISTRICT
TRANSITION
DISTRICT
NORTH 40 SPECIFIC PLAN 2-5
IJKI Modified June 17.20 JS
Santa Clara County Superior Court Case No. 16CV300733 Eden Housing. Inc., et al. v. Town of Los Gatos
PROOF OF SERVICE

OPENING BRIEF IN SUPPORT OF PETITIONERS’ VERIFIED PETITION FOR WRIT OF MANDATE in the following manner:
by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, from the sending facsimile machine telephone number of (408) 938-2577. The transmission was reported as complete and without error by the machine. Pursuant to California Rules of Court, Rule 2008(e)(4), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original of this declaration. The transmission report was properly issued
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Jose, California addressed as set forth below.
Or by overnight mail by placing the document(s) listed above in a sealed overnight mail envelope with postage thereon fully prepaid, addressed as set forth below, as indicated.
by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below.
by e-mail or electronic transmission. I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was
Attorneys for Respondent Town of Los Gatos
Whitney G. McDonald Richards, Watson, Gershon 847 Monterey Street, Suite 201 San Luis Obispo, CA 93401 wmcdonald@,rwglaw.com
Robert Schultz Town Attorney Town of Los Gatos 110 East Main Street Los Gatos, CA 95030 rschultz@losgatosca. gov
I am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service/Express Mail, Federal Express and other overnight
mail services, to wit, that correspondence will be deposited with the United States Postal Service/overnight mail service this same day in the ordinary course of business. Executed on January 13, 2017, at San Jose, California.
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