Opinion

Ruegg & Ellsworth v. City of Berkeley

Court: California Court of Appeal
Filed: Apr 20, 2021
Status: Published
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

Filed 4/20/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

RUEGG & ELLSWORTH et al.,

Petitioners and Appellants,

CITY OF BERKELEY et al.,

Defendants and Respondents,

A159218

CONFEDERATED VILLAGES OF (Alameda County Super. Ct.

LISJAN et al., No. RG18930003)

Interveners and Respondents.

Ruegg & Ellsworth and Frank Spenger Company applied to the City of

Berkeley (City) for approval of a mixed-use development pursuant to

Government Code section 65913.4, which provides for streamlined,

ministerial approval of affordable housing projects meeting specified

requirements and conditions. The City denied the application for failure to

meet several statutory requirements. Appellants now appeal the trial court’s

denial of the petition for writ of mandate by which they sought to require the

City to grant their application. For the reasons explained herein, we will

reverse the judgment and remand with directions for the trial court to grant

the writ petition.

BACKGROUND

In 2015, appellants submitted an application for a mixed-use

development at 1900 4th Street (Spenger’s parking lot) in Berkeley with 135

apartments over approximately 33,000 square feet of retail space and

parking. The project site is the block bordered by Hearst Avenue on the

north, University Avenue on the south, Fourth Street on the east, and the

Union Pacific Railroad tracks (Third Street) on the west.

The development site is part of a three-block area the Berkeley

Landmarks Preservation Commission (Commission) designated a City of

Berkeley Landmark in 2000, as the location of the West Berkeley Shellmound

(CA-ALA-307) (Shellmound).1 The Shellmound is listed in the California

As described in the City’s landmark application, the Shellmound “is

believed to have been one of the first of its kind at the Bay’s edge, built ca

3,700 B.C.,” 1,000 years before the first pyramid.2 Shellmounds were “sacred

burial sites for the average deceased mound-dweller,” slowly constructed over

thousands of years from daily debris and artifacts left by the tribelet

communities that lived on the site. “The importance of the shellmounds

should not be underestimated.” Shellmounds contained “ritual burials

exhibiting a variety of deliberate, traditional positioning and use of burial

goods” and “[e]ven to this day, native descendants value these mounds as

The landmark area extends north to south from Hearst Avenue to

University Avenue and east to west from 4th Street to I-880.

2 A 2017 letter from a University of California Berkeley professor of

Anthropology states that the Shellmound is the earliest known shellmound

site in the region, first occupied about 4,900 years ago and used for the next

3,700 years, and sporadically revisited after that. It is #307 of “no less than

four hundred and twenty-five shellmounds on or near the shoreline of the

Bay” recorded by Archaeologist N.C. Nelson in 1907 and 1908.

sacred resting sites of their early ancestors.” In 1950, a University of

California Berkeley archeologists removed “numerous artifacts and 95

human burials” from the Shellmound. Other findings from the Shellmound

include a section of the floor of a “large, presumably ceremonial house,”

firepits, burials revealing ceremonial red paint and “mortuary goods,” animal

burials, food debris, and artifacts providing information about diet and

means of food collection, shell beads, and stone and bone tools.

The decision approving the West Berkeley Shellmound as a City

landmark states that the Shellmound “is most highly significant to native

descendants as a sacred burial ground,” its “cultural resource lies in its age,

the fact that it is the oldest and one of the largest mounds established around

the bay, that it represents ancient culture, that it was built by the earliest

humans in the area,” that “it is recognized that this historical resource has

yielded and is likely to yield information ‘important in prehistory or history,’ ”

and that “the Shellmound plays an important role in the history of the

changing shoreline and the change in attitude towards the use of natural

resources.” The landmark designation does not include any above ground

buildings or structures; it included “the site itself and all items found

subsurface including artifacts from the earliest native habitation, such as but

not limited to native tools, ornaments, and human burials.”

Nothing remains of the Shellmound above ground. As described in a

November 2016 Draft Environmental Impact Report (DEIR) prepared for the

Berkeley Planning and Development Department (Department) in connection

with appellants’ 2015 application, by the mid-20th century, “most of the

Shellmound had been systematically demolished by development and related

ground disturbance. Shellmound materials were scattered throughout the

surrounding area as agricultural fertilizer and for road-building and paving.”

A 1950 survey reported that the “original dimensions and exact limits of the

Shellmound could not be determined because most of it had been removed,”

but it “seems to have covered an elliptical area, conservatively estimated at

350 x 600 feet, with its long axis paralleling Strawberry Creek.” The portion

remaining in 1950 measured 45 by 100 feet. Its highest point was 15 feet

above ground, but it had been higher, as “the peak had been cut down and

leveled to serve as the base for a water tank,” and it extended three feet

below ground.

One of the questions in this case is whether the Shellmound was

actually located on the project site. According to the historical reviews

documented in the administrative record, a 1949 survey placed the

Shellmound between Hearst and University and between Second and Fourth

Streets. A report prepared for appellants in January 2017, by Geosphere

Consultants, Inc., contains several historical maps of the area, including an

1856 United States Coast and Geodetic Survey map showing one shellmound

to the east of the project site and one to the west of the site; the same is true

on a 1957 United States Geological Survey map. Based on these and other

maps, as well as exploratory borings, the report concluded the shellmounds

were in “close proximity to” but did not “encroach onto the project site.”

Graphics and video consultants for interveners Confederated Villages

of Lisjan (CVL), using the 1856 and 1957 maps and a 2018 “OpenStreetMap,”

created a series of maps that show the shellmound to the west of the project

site “mostly within the block west of the Project site” but extending into the

northwest corner of the project site.

A map from a 1907 manuscript shows the Shellmound on much of

the project site and extending to the east of Fourth Street.

As related in a 2002 “Cultural Resources Inventory” prepared for the

City by Garcia and Associates (lead author Christopher Dore), in 1999 Allen

Pastron of Archeo-Tec placed and evaluated borings within the northeastern

quadrant of the Spenger’s parking lot, near the intersection of Fourth Street

and Hearst Avenue, and found “no evidence to suggest that remnants of the

West Berkeley Shellmound exist” in that area. Pastron conducted additional

testing in 2000, and found two “culturally sensitive areas” containing

“prehistoric deposits” of silt or silty clay “interspersed with flecks of charcoal,

a relatively small quantity of fish and mammal bone, a few pieces of fire-

affected rock, several possible stone artifacts and ubiquitous amounts of

shell,” one in the northwestern quadrant of the parking lot at depths of five to

nine feet, and the other in the east-central portion of the site at depths of six

to nine feet. Pastron opined that material from the six- to eight-foot layer of

Boring #19, in the northwest quadrant, “probably represents a remnant of

CA-ALA-307,” although there were no tools, prehistoric artifacts, or “other

signs found that this is assuredly part of CA-ALA-307.” Pastron concluded

the data was insufficient to determine whether the “areas of prehistoric

cultural sensitivity represent zones of primary or secondary archeological

deposition.” He stated, however, that because it appeared “certain that the

heart of the West Berkeley Shellmound (CA-ALA-307) was situated directly

to the west of the present project area, across the Union Pacific Railroad

tracks” and “the site’s original horizontal boundaries were quite extensive,

but never precisely determined . . . it is possible that the recently identified

cultural deposit may represent an undisturbed, or at least minimally

disturbed, remnant of the eastern edge of the West Berkeley Shellmound

(CA-ALA-307).”

In 2001, a geoarchaeological investigation conducted in connection with

the Cultural Resources Inventory found intact primary deposits of

shellmound material in several locations adjacent to the project site on

Fourth Street, University Avenue, and Hearst Avenue. The report noted,

with reference to Pastron’s findings, that “the cultural levels in the parking

lot are more deeply buried than the shell levels on 4th Street.”

In 2014, Archeo-Tec conducted another investigation of the Spenger’s

parking lot site, again overseen by Pastron, in consultation with Andrew

Galvan, a Native American resource consultant and member of the Ohlone

Tribe. The investigation included excavation of 20 trenches in the central

portion of the project site and two larger ones in the northwest portion,

placed to “extensively sample” areas identified in the 2000 excavation as

“potentially containing shellmound material,” and use of ground-penetrating

radar to pinpoint the “most likely areas of potentially intact midden.”

Archeo-Tec did not find “intact shellmound” or “primary shellmound deposits”

anywhere within the project site, and the “culturally derived deposits”

recovered appeared to be “redeposited,” “not in primary context.” The report

explained that test trenches 21 and 22 were opened to “overlap the area

previously penetrated by Boring #19 (see Pastron 2000), which indicated a

high potential of finding intact shellmound deposits.” No artifacts were

recovered from trench 21. The investigators stated that, “[u]pon closer

examination,” they determined Boring #19 “probably did not originally

contain intact shellmound between 5 and 9 feet below surface level” because

they “only encountered a thin layer of crushed shell,” which they believed was

“most likely a redistributed remnant of the West Berkeley Shellmound (for

the purposes of road building and agricultural soil improvement, described

elsewhere) and not the intact shellmound itself.” In trench 22, the

investigators found “a historic period bottle embedded in the shellmound

material, which suggests that the material was redeposited relatively

recently and is thus not in original context.”

The 2014 data led the investigators to conclude that Shellmound

materials identified within the parking lot during testing in 1999 and 2000,

were in “secondary deposition,” having “probably originated from the West

Berkeley Shellmound” but “moved from their original location onto the

project site as a consequence of natural creek deposition or in the late 19th or

early 20th century during one of many episodes of human-induced

topographic modification.” The investigators stated, “we think it is not

possible that the culturally derived deposits we encountered were

undisturbed remnants of the eastern edge of the West Berkeley Shellmound.

Indeed, based on available evidence . . . it is most parsimonious to interpret

the shellmound deposits encountered as highly disturbed, secondarily

emplaced and probably intentionally distributed, for purposes of road

building and agricultural soil enhancement.”

The 2014 report acknowledges it could not “eliminate with absolute

certainty the possibility that significant historic and pre-contact cultural

materials exist within the footprint of the Spenger’s Parking Lot site” but the

investigators were “confident . . . that this possibility is quite low.” Still, “[i]n

consideration of the known long occupation of the area by the Ohlone people

and others before them, and in accordance with the known proximity of one of

the most important precontact shellmounds in the state of California (i.e., the

West Berkeley Shellmound),” the investigators recommended monitoring of

“all project related ground disturbance below the historic fill layer (which we

find in the Spenger’s Parking Lot in excess of approximately 4 feet below the

present ground surface)” by a qualified archaeologist and a representative of

the Ohlone people, and a site-wide ground-penetrating radar (GPR) survey

prior to full-scale ground-disturbance and demolition.”

The DEIR, after review of these and other investigations, stated that

although “National Register or California Register-eligible shellmound

deposits” had not been identified on the project site in previous excavations,

“the possibility exists that intact shellmound deposits could be present in

areas that have not been previously excavated” and “excavation could

potentially unearth previously unidentified intact shellmound deposits that

contribute to the resource’s significance under the National Register and

California Register. These impacts would have a substantial adverse change

on a historical resource due to the destruction of those critical aspects of

integrity that qualify it as a City Landmark and for listing in the National

mitigation measures, the project would have significant impacts including

“[a]dverse changes in the significance of a historical resource, the West

Berkeley Shellmound (City Landmark #227) during ground disturbing

activities.” The mitigation measures, which the DEIR stated would reduce

the impacts to “a less-than-significant level,” included an archaeological

survey with ground-penetrating radar to identify areas most likely to yield

shellmound material; cultural awareness and sensitivity training for

construction contractors prior to ground disturbance; archaeologist review of

utility plan prior to issuance of demolition or grading permits to assess

potential impacts of, and mitigation measures for, utility excavations; and

monitoring of all ground-disturbing activities by an archaeologist and a

representative of an Ohlone Tribe.

Galvan, as president of the Board of Directors of Ohlone Indian Tribe,

Inc., commented that the DEIR was “accurate with respect to the

archeological rigor and methodology” to which the site had been subjected

and asked that the mitigations be “vigorously enforced throughout earth

working activities.” The Commission, however, based on “extensive public

testimony” and review of written testimony and documentation, commented

that the DEIR was “seriously deficient,” particularly with respect to cultural

resources.

On April 5, 2018, appellants asked the City to suspend processing of

the use permit and California Environmental Quality Act (CEQA)

documentation for the project effective March 8, 2018.

Meanwhile, the Legislature enacted Senate Bill No. 35 (Senate Bill 35),

effective January 1, 2018, adding section 65913.4 to the Government Code.3

(Stats. 2017, ch. 366, § 3.) Section 65913.4 requires a “ministerial approval

process” for certain affordable housing projects when a locality has failed to

provide its share of “regional housing needs, by income category.” (§ 65913.4,

subd. (a)(4)(A).)4

Section 65913.4, subdivision (a), provides that if a proposed

development satisfies all of the “objective planning standards” enumerated in

the statute, it is subject to a “streamlined, ministerial approval process” and

“not subject to a conditional use permit.” Among the objective planning

standards, as relevant here, and as worded at the time of appellants’

3Further statutory references will be to the Government Code unless

otherwise specified.

4 The Housing Element Law (§ 65580 et seq.) establishes a system by

which the state’s need for housing is determined on a regional basis, with a

share allocated to each locality in the region and the locality responsible for

developing a plan to provide its share of the regional housing needs

assessment (RHNA). (§§ 65584.01, 65584.05, 65583, subd. (c), 65583.2,

65588.)

application,5 the development must be “a multifamily housing development

that contains two or more residential units” (§ 65913.4, subd. (a)(1)); the

development must be “located on a site that satisfies all of the following:

[¶] . . . [¶] (C) A site that is zoned for residential use or residential mixed-use

development, or has a general plan designation that allows residential use or

a mix of residential and nonresidential uses, with at least two-thirds of the

square footage of the development designated for residential use” (§ 65913.4,

subd. (a)(2)(C));6 and the development must be “consistent with objective

zoning standards, objective subdivision standards, and objective design

review standards in effect at the time that the development is submitted to

the local government pursuant to this section” (§ 65913.4, subd. (a)(5)).

Additionally, the development must not be located on a site where any of the

following apply: “The development would require the demolition of a historic

structure that was placed on a national, state, or local historic register.”

(§ 65913.4, subd. (a)(7)(C).)

If the local government determines that a development submitted

pursuant to section 65913.4 is “in conflict with any of the objective planning

standards specified in subdivision (a), it shall provide the development

proponent written documentation of which standard or standards the

5 Section 65913.4 has been amended a number of times. This opinion

will refer to the statute in effect at the time of appellants’ application and

point out relevant subsequent changes as necessary.

6 An amendment to section 65913.4 in 2020, among other things,

changed the relevant language of subdivision (a)(2)(C), as indicated in italics:

“The development and the site on which it is located satisfy all of the

following: . . . (C) It is zoned for residential use or residential mixed-use

development, or has a general plan designation that allows residential use or

a mix of residential and nonresidential uses, and at least two-thirds of the

square footage of the development is designated for residential use.” (Stats.

2020, ch. 194, § 1, italics added.)

development conflicts with, and an explanation for the reason or reasons the

development conflicts with that standard or standards,” within 60 days for a

development of up to 150 housing units or within 90 days for a development

containing more than 150 housing units. (§ 65913.4, former subd. (b)(1), now

subd (c)(1).) “If the local government fails to provide the required

documentation pursuant to paragraph (1), the development shall be deemed

to satisfy the objective planning standards specified in subdivision (a).”

(§ 65913.4, former subd. (b)(2), now subd. (c)(2).)

On March 8, 2018, appellants submitted an application pursuant to

section 65913.4 for development at the 1900 4th Street site of 260 dwelling

units, 50 percent of which would be “affordable to low-income households,”

over approximately 27,500 square feet of retail space and parking.

In May 2018, an attorney representing CVL informed the City of his

client’s intent to sue if the City found the project was subject to ministerial

approval under section 65913.4.

On June 5, 2018, the Department provided appellants the written

response required by section 65913.4, subdivision (b)(2) (“90-day letter” or

“June 2018 letter”), stating that Senate Bill 35 does not apply to the project

“to the extent it impinges on legitimate municipal affairs (preservation of a

designated City landmark) but nevertheless detailing the Department’s

analysis of the statutory objective standards. The Department determined

that several components of the application were inconsistent with the criteria

for streamlined approval and that further information was needed as to

others. As relevant here, the Department stated that the project conflicted

with the City’s Affordable Housing Mitigation Fee (AHMF) requirements and

Landmarks Preservation Ordinance (§ 65913.4, subd. (a)(5)); that if the

Shellmound or another historic structure was beneath the site, the project

could require demolition of a historic structure that was placed on a historic

with the City’s requirements that a project meet applicable performance

standards for off-site impacts and not exceed amount and intensity of use

that can be served by available traffic capacity (§ 65913.4, subd. (a)(5)).

After appellants responded to each of the City’s points, the Department

denied the application for ministerial approval. Its September 4, 2018 letter

first explained that Senate Bill 35 could not constitutionally be applied to the

project because of the City’s right, as a charter city, to govern itself with

regard to municipal affairs, including protection of local landmarks. Second,

the letter explained that if Senate Bill 35 applied, the project did not satisfy

the requirements for ministerial approval due to conflict with the City’s

AHMF requirements with respect to very low-income units, conflict with the

City’s requirements regarding traffic impacts, and fact that the project might

require demolition of historic structure that has been placed on a state and

local historic register. The Department stated that appellants’ original

application had been placed on hold and they were welcome to reactivate that

project or reapply under a standard use permit for the revised project.

On November 28, 2018, appellants filed a petition for writ of mandate

and complaint for declaratory and injunctive relief against the City and the

Department. Appellants sought orders declaring Senate Bill 35

constitutional as to the project and requiring the City to issue the ministerial

permit for which they applied, alleging that denial of the permit violated both

section 65913.4 and the Housing Accountability Act (HAA) (Gov. Code,

§ 65589.5). The petition challenged respondents’ assertion that Senate

Bill 35 unconstitutionally impinged on the City’s authority over municipal

affairs, argued the AHMF and traffic requirements were not objective

standards under Senate Bill 35, and argued the Shellmound was not a

“structure” within the meaning of the statute and was not located on the

project site. Appellants filed a supplemental petition and complaint on

December 17, 2018, in order to bring before the court guidelines for the

streamlined ministerial approval process issued on November 29, 2018, by

the California Department of Housing and Community Development (DHCD

Guidelines).

On February 4, 2019, the trial court granted CVL leave to intervene.7

Opposing the petition, the City argued the state could not interfere

with its authority over municipal affairs under the Home Rule doctrine;

Senate Bill 35 did not preempt the City’s historic protection authority;

appellants failed to demonstrate the City acted arbitrarily, capriciously, and

without any evidence in determining appellants did not establish the project

would not require “ ‘demolition of a historic structure’ placed on a historic

use developments, and could not be so applied without violating the home

rule doctrine; the project does not comply with the City’s AHMF Ordinance

and does not satisfy objective traffic standards; and the City did not

disapprove the project under the HAA. CVL argued Senate Bill 35 does not

preempt the City’s discretionary zoning controls protecting its landmarks and

7 CVL is not listed as a federal or state recognized tribe. (NCSL,

Federal and State Recognized Tribes (updated Mar. 2020)

<https://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-

recognized-tribes.aspx#federal> [as of Apr. 20, 2021].) In requesting

intervention, CVL stated that Confederated Villages of Lisjan is a traditional

Native American tribe with over 85 members, and Confederated Villages of

Lisjan, Inc. is a California nonprofit mutual benefit corporation formed in

2017 to “ ‘protect and promote the rights of Ohlone people of the East Bay

Area, including education, health, cultural and religious rights.’ ”

the City’s determination that the project might require demolition of a

historic structure that has been placed on a historic register was supported

by substantial evidence.

After a hearing in September 2019, the court filed its order denying the

petition on October 21, 2019. The court denied the petition for two reasons:

The City’s determination that the project would require demolition of a

historic structure was not “entirely without evidentiary support,” and section

65913.4 does not apply to mixed-use developments. The trial court did not

reach the other grounds respondents8 raised in support of the denial of

ministerial approval.

Appellants filed a motion for reconsideration or new trial, arguing that

recent amendments to section 65913.4 demonstrated the trial court should

have reviewed the City’s conclusion that the project would destroy a

historical structure for substantial evidence rather than applying a more

deferential standard of review, and also demonstrated the statute applies to

mixed-use developments. The trial court denied the motion. Judgment was

entered on December 19, 2019.

This appeal followed.

DISCUSSION

Section 65913.4 is one of a number of measures the California

Legislature has adopted to address the crisis of insufficient housing in the

state. Declarations of the statewide importance of housing in general, and

affordable housing in particular, have appeared in legislation for decades.

(E.g., §§ 65580, subd. (a), as enacted in 1980, Stats. 1980, ch. 1143, p. 3697,

see Stats 1999, ch. 967; 65913 [“there exists a severe shortage of affordable

8We refer to the City and Planning Department collectively as

respondents. We refer to intervener CVL separately.

housing, especially for persons and families of low and moderate income” and

“there is an immediate need to encourage the development of new housing”].)

Some 30 years ago, the Legislature amended the HAA to include a

number of findings regarding affordable housing, including that the “lack of

affordable housing is a critical problem which threatens the economic,

environmental, and social quality of life in California” (§ 65589.5, subd.

(a)(1)), the “excessive cost of the state’s housing supply is partially caused by

activities and policies of many local governments that limit the approval of

affordable housing, increase the cost of land for affordable housing, and

require that high fees and exactions be paid by producers of potentially

affordable housing” (§ 65589.5, subd. (a)(2)), “among the consequences of

those actions are discrimination against low-income and minority households,

lack of housing to support employment growth, imbalance in jobs and

housing, reduced mobility, urban sprawl, excessive commuting, and air

quality deterioration” (§ 65589.5, subd. (a)(3)), and “[m]any local governments

do not give adequate attention to the economic, environmental, and social

costs of decisions that result in disapproval of housing development projects,

reduction in density of housing projects, and excessive standards for housing

development projects” (§ 65589.5, subds. (a)(1)–(a)(4), added by Stats. 1990,

ch. 1439, § 1).9 Among other things, the Legislature prohibited a local

government from disapproving housing development projects affordable to

low and moderate-income households unless it found one of a number of

enumerated conditions by substantial evidence. (§ 65589.5, subd. (d).) The

Legislature stated, “This section shall be applicable to charter cities, because

9After subsequent amendments, these provisions appear in the current

statute as section 65589.5, subdivision (a)(1)(A) through (a)(1)(D).

the Legislature finds that the lack of affordable housing . . . is a critical

statewide problem.” (§ 65589.5, subd. (g).)

The Legislature added a number of additional findings in 2017,

effective January 1, 2018. (Stats. 2017, ch. 368, § 1.5; Stats. 2017, ch. 373,

§ 1.5; Stats. 2017, ch. 378, § 1.5.) These include:

“California has a housing supply and affordability crisis of historic

proportions. The consequences of failing to effectively and aggressively

confront this crisis are hurting millions of Californians, robbing future

generations of the chance to call California home, stifling economic

opportunities for workers and businesses, worsening poverty and

homelessness, and undermining the state’s environmental and climate

objectives.” (§ 65589.5, subd. (a)(2)(A).)

“While the causes of this crisis are multiple and complex, the absence of

meaningful and effective policy reforms to significantly enhance the approval

and supply of housing affordable to Californians of all income levels is a key

factor.” (§ 65589.5, subd. (a)(2)(B).)

“California’s housing picture has reached a crisis of historic proportions

despite the fact that, for decades, the Legislature has enacted numerous

statutes intended to significantly increase the approval, development, and

affordability of housing for all income levels, including this section.”

(§ 65589.5, subd. (a)(2)(J).)

“The Legislature’s intent in enacting this section in 1982 and in

expanding its provisions since then was to significantly increase the approval

and construction of new housing for all economic segments of California’s

communities by meaningfully and effectively curbing the capability of local

governments to deny, reduce the density for, or render infeasible housing

development projects and emergency shelters. That intent has not been

fulfilled.” (§ 65589.5, subd. (a)(2)(K).)

Section 65589.5, subdivision (a)(2)(L), states, “It is the policy of the

state that this section be interpreted and implemented in a manner to afford

the fullest possible weight to the interest of, and the approval and provision

of, housing.”

Senate Bill 35, enacting section 65913.4, was filed with the Secretary of

State on the same day as the bill amending section 65589.5 as just described.

As with section 65589.5, the Legislature stated that the changes made by

Senate Bill 35 would apply to charter cities because “ensuring access to

affordable housing is a matter of statewide concern, and not a municipal

affair.” (Stats. 2017, ch. 366, §§ 3 [subd. (h)(4)]10 and 4, eff. Jan. 1, 2018.)

Like section 65589.5, section 65913.4 contains a provision declaring the state

policy “that this section be interpreted and implemented in a manner to

afford the fullest possible weight to the interest of, and the approval and

provision of, increased housing supply.” (§ 65913.4, subd. (n).) Senate Bill 35

added “[s]treamlining housing approvals during a housing shortage” to a list

of “reforms and incentives” the Legislature has provided “to facilitate and

expedite the construction of affordable housing.” (§ 65582.1, subd. (p); Stats.

2017, ch. 366, § 2, eff. Jan. 1, 2018.)

Our interpretation of section 65913.4 is necessarily guided by these

Legislative pronouncements, as our primary task is to effectuate the

Legislature’s intent.

10 Senate Bill 35 defined “locality” and “local government” as meaning

“a city, including a charter city, a county, including a charter county, or a city

and county, including a charter city and county.” (§ 65913.4, former subd.

(h)(4), now subd. (k)(6).)

In denying the petition under section 65913.4, subdivision (a)(7)(C), the

trial court applied the deferential standard of review applicable under Code

of Civil Procedure section 1085,11 commenting that the City’s determination

the project “would require the demolition of a historic structure” was

“strongly contradicted by the results of [appellants’] 2014 archeological

research” but holding it was “not entirely without evidentiary support.” The

court noted that Pastron’s 2000 study of the site determined that “remnants

in the 6-to-8 foot layer of one sample, labeled Boring 19, ‘probably represents

a remnant of [the Berkeley Shellmound,]’ ” and a “1949 survey, based on an

earlier 1907 survey, placed the Berkeley Shellmound on the site.’ ” The court

held it was “not unreasonable for the City to determine that a pre-contact

shell midden such as the Berkeley Shellmound is an immovable work built

up by human artifice, and that it falls within the meaning of the term

‘structure’ ” and “[i]n the context of the buried or ruined remnants of an

historic structure, the plain meaning of the term ‘demolish’ includes

destructive excavation that would destroy the historical or archeological

integrity of the remnants of the structure.” Since the City’s determinations

that remnants of the Shellmound existed on the site and that the project

11 Trial court reviewed the City’s decision pursuant to Code of Civil

Procedure section 1085 rather than Code of Civil Procedure section 1094.5

because the decision whether to grant a permit under Senate Bill 35 is a

“ministerial decision that does not require an evidentiary hearing.” Code of

Civil Procedure section 1094.5 applies where the administrative decision was

made “as the result of a proceeding in which by law a hearing is required to

be given, evidence is required to be taken, and discretion in the

determination of facts is vested in the inferior tribunal, corporation, board, or

officer.” (Code Civ. Proc., § 1094.5, subd. (a).)

would require destructive excavation at least 10 feet underground (as

indicated on diagrams for underground parking 11 feet below ground level)

were not “entirely lacking in evidentiary support,” the court concluded the

City did not abuse its discretion in determining the project would require

demolition of a historical structure.

The standard of review for traditional mandamus (Code Civ. Proc.,

§ 1085), calls for the court to determine whether “the agency’s decision was

arbitrary, capricious or entirely lacking in evidentiary support, contrary to

established public policy, unlawful or procedurally unfair.” (California Public

Records Research, Inc. v. County of Alameda (2019) 37 Cal.App.5th 800, 806.)

Under this deferential standard of review, the court’s role is to “ensure that

the administrative agency has adequately considered all relevant factors, and

has demonstrated a rational connection between those factors, the choices

made, and the purposes of the enabling statute.” (Golden Drugs Co., Inc. v.

Maxwell-Jolly (2009) 179 Cal.App.4th 1455, 1471; O.W.L. Foundation v. City

of Rohnert Park (2008) 168 Cal.App.4th 568, 586.) The appellate court

applies the same standard of review as the trial court, reviewing the agency’s

action de novo. (American Board of Cosmetic Surgery v. Medical Board of

California (2008) 162 Cal.App.4th 534, 547–548; Friends of the Old Trees v.

Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1393.)

Arguing that the trial court erred in deferring to the City’s factual

determination that the project would require “ ‘demolition of a historic

structure’ ” (§ 65913.4, subd. (a)(7)(C)), appellants first contend section

65913.4 requires the reviewing court to determine whether substantial

evidence supported the applicant’s position (not the City’s). This argument is

based upon a 2019 amendment, Assembly Bill No. 1485 (Assembly Bill 1485)

(Stats. 2019, ch. 663, § 1), appellants describe as establishing a “ ‘substantial

evidence’ standard in favor of [appellants].” Although this amendment did

not become effective until after the City’s and trial court’s decisions,

appellants argue it should apply because it only clarified rather than changed

the law. Further, they argue it should govern our review, because it became

effective before we rendered our decision in this case.

Entirely apart from reliance upon the statutory amendment, appellants

argue the deferential standard of review applied by the trial court is

inappropriate here because it effectively nullifies the legislative intent in

section 65913.4 by insulating from review the fact-finding underlying an

agency’s determination whether its ministerial duty to approve a project is

triggered. We find this argument compelling and for that reason find it

unnecessary to determine whether the 2019 amendment applies

retroactively.12

The California Supreme Court has stated that “the discretion granted

an agency by the legislation authorizing its duties, and hence the appropriate

standard of review, may vary depending on the language and intent of that

legislation.” (San Francisco Fire Fighters Local 798 v. City and County of

San Francisco (2006) 38 Cal.4th 653, 669 (San Francisco Fire Fighters).) The

12 Assembly Bill 1485 added former subdivision (b)(3) (now subd. (c)(3))

to section 65913.4: “For purposes of this section, a development is consistent

with the objective planning standards specified in subdivision (a) if there is

substantial evidence that would allow a reasonable person to conclude that

the development is consistent with the objective planning standards.” (Stats.

2019, ch. 663, § 1, eff. Jan. 1, 2020.) The parties dispute whether this

amendment changed the law—which, in respondents’ view, would otherwise

require the highly deferential review generally applicable under Code of Civil

Procedure section 1085. If it merely clarified existing law, as appellants

maintain, it would present no retroactivity issue. (McClung v. Employment

Development Dept. (2004) 34 Cal.4th 467, 471–472 (McClung), quoting

Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 (Western

Security Bank).)

court in San Francisco Fire Fighters was reviewing the city’s determination

that its charter did not require submission to arbitration of a dispute over a

rule changing promotion procedures. The charter required binding

arbitration of disputes between the city and unions representing firefighters,

but stated an exception for “ ‘any rule, policy, procedure, order or practice . . .

which is necessary to ensure compliance with federal, state or local anti-

discrimination laws, ordinances or regulations.’ ” (Ibid.) The court

explained, “If it can be discerned that the Charter gives the City very little

discretion to determine what is necessary to ensure compliance, then some

kind of more rigorous independent review would be required in order to

prevent the City from circumventing what was intended to be a strict

limitation on its authority. In other words, the Charter provision may define

the scope of the City’s discretion, and this in turn shapes not only what is to

be reviewed but how it should be reviewed: legislation with a narrow

definition of necessity would not be served by a deferential standard of

review. But if it can be inferred from the authorizing legislation that a

municipality has been granted considerable discretion to determine what is

necessary to accomplish a valid legislative goal, a more deferential standard

of review is appropriate.” (Id. at pp. 669–670.)

Section 65913.4 expressly limits local governments’ authority over

applications for development of affordable housing projects meeting the

specified criteria: Applications under section 65913.4 are for a “streamlined,

ministerial approval process” based on “objective planning standards.”

(§ 65913.4, subd (a).) “ ‘A ministerial act is an act that a public officer is

required to perform in a prescribed manner in obedience to the mandate of

legal authority and without regard to his own judgment or opinion concerning

such act’s propriety or impropriety, when a given state of facts exists.’

[Citation.]” (Kavanaugh v. West Sonoma County Union High School

Dist. (2003) 29 Cal.4th 911, 916.) “Objective” means “[o]f, relating to, or

based on externally verifiable phenomena, as opposed to an individual’s

perceptions, feelings, or intentions” (Black’s Law Dictionary (11th ed. 2019)),

“based only on facts and not influenced by personal feelings or beliefs.”

(Macmillan Dict. Online (2021)

<https://www.macmillandictionary.com/us/dictionary/american/objective> [as

of Apr. 20, 2021.) The Legislature’s choice of language makes obvious its

intent to constrain local governments’ discretion.13

Respondents point to Soderling v. City of Santa Monica (1983) 142

Cal.App.3d 501 (Soderling) as confirming that a reviewing court must defer

to the agency’s underlying factual determinations even in a ministerial duty

case. In Soderling, the city’s planning commission had approved tentative

subdivision maps for condominium conversion projects subject to specified

conditions; when the petitioner requested approval of final maps, some of the

conditions, including installation of smoke detectors, had not been completed.

(Id. at pp. 503–504.) Rejecting the petitioner’s argument that denying

approval was a breach of the city’s mandatory duty under the Subdivision

Map Act (§ 66410 et seq.), Soderling stated, “the city council retained

discretion only to determine whether there had been substantial compliance

with the conditions; thereafter, performance of its mandatory statutory duty

required disapproval of petitioner’s final maps.” (Soderling, at p. 509.)

13 Section 65913.4, subdivision (a)(5), defines “objective zoning

standards” and “objective design review standards” as “standards that

involve no personal or subjective judgment by a public official and are

uniformly verifiable by reference to an external and uniform benchmark or

criterion available and knowable by both the development applicant or

proponent and the public official prior to submittal.”

Respondents characterize this quotation from Soderling as “describ[ing]

the deference due to the agency’s factual determinations as a matter of

agency discretion.” In fact, there was no disputed factual question in

Soderling, as the petitioner admitted not having complied with the

conditions. But, in any event, the situation in Soderling differs significantly

from the present case. The question there was whether the petitioner had

complied with conditions imposed by the local agency pursuant to its

discretion under the Subdivision Map Act, which the court noted “implicitly

recognizes the breadth of local powers with respect to regulation of ‘the

design and location of buildings in such a [condominium] project by or

pursuant to local ordinances.’ ” (Soderling, supra, 142 Cal.App.3d at p. 507.)

Deference to the city’s factual determinations in that context would be

consistent with the reasoning of San Francisco Fire Fighters, supra, 38

Cal.4th at page 669, as the governing statute gave the city broad discretion to

determine appropriate conditions for approval of a subdivision map. In the

present case, the City was not given discretion to impose conditions and then

determine whether they were satisfied: It was required to approve the

development project if the conditions specified by the Legislature were met.

The specific issue here—whether the development project “would

require the demolition of a historic structure that was placed on a national,

state, or local historic register”—has both a legal and a factual component.

Whether the Shellmound is a “structure” within the meaning of section

65913.4, subdivision (a)(7)(C), is a question of statutory interpretation, a

legal issue we review de novo. (California Advocates for Nursing Home

Reform v. Smith (2019) 38 Cal.App.5th 838, 864.) Whether the Shellmound

exists on the project site is a question of fact. For the reasons stated above,

we find the highly deferential standard of review applied by the trial court

inappropriate here. It is unnecessary for us to further define the proper

standard because, as we will discuss, we find no evidence in the record that

the project “would require the demolition of a historic structure that was

placed on a . . . historic register.” (§ 65913.4, subd. (a)(7)(C).)

Section 65913.4 does not define the term “structure.” Dictionary

definitions include “something (such as a building) that is constructed”

(Merriam-Webster Dict. Online (2021) <https://www.merriam-

webster.com/dictionary/structure> [as of Apr. 20, 2021]), “something that

consists of parts connected together in an ordered way” and “something that

has been built” (Collins English Dict. Online (2021)

<https://www.collinsdictionary.com/us/dictionary/english/structure> [as of

Apr. 20, 2021].) Black’s Law Dictionary (11th ed. 2019) defines “structure” as

“[a]ny construction, production, or piece of work artificially built up or

composed of parts purposefully joined together” and provides the illustration,

“a building is a structure.” Public Resources Code section 5024 (concerning

inventory and list of state-owned historical resources) defines “structure,” for

purposes of that section and Public Resources Code section 5024.5 (notice of

proposed actions affecting historical resources on master list), as “an

immovable work constructed by man having interrelated parts in a definite

pattern of organization and used to shelter or promote a form of human

activity and which constitutes an historical resource.” (Pub. Resources Code,

§ 5024, subd. (h).)14

14It is perhaps worth observing that the historical structure provision

appears within a section of the statute otherwise exclusively concerned with

potential demolition of housing:

Appellants maintain the Shellmound is not, and never has been, a

“structure,” only a “mound” or “heap” that was not “constructed with

interrelated parts in a definite pattern of organization.” More significantly,

they argue that even if the Shellmound was at some time in the past a

“structure,” what currently remains are no more than remnants that cannot

be viewed as a “structure” for purposes of section 65913.4.

Respondents quote the 2002 Cultural Resources Inventory’s description

of the Shellmound as having been “constructed continuously” between 3030

B.C. and 780 A.D. and statement that shellmounds were “repeatedly used as

both residential locales and long-term repositories for the dead, and perhaps

as socio-political centers.” Emphasizing that the “remaining portion of a

“(7) The development is not located on a site where any of the following

apply:

(A) The development would require the demolition of the following

types of housing:

(i) Housing that is subject to a recorded covenant, ordinance, or law

that restricts rents to levels affordable to persons and families of moderate,

low, or very low income.

(ii) Housing that is subject to any form of rent or price control through

a public entity’s valid exercise of its police power.

(iii) Housing that has been occupied by tenants within the past 10

years.

(B) The site was previously used for housing that was occupied by

tenants that was demolished within 10 years before the development

proponent submits an application under this section.

structure that was placed on a national, state, or local historic register.

(D) The property contains housing units that are occupied by tenants,

and units at the property are, or were, subsequently offered for sale to the

general public by the subdivider or subsequent owner of the property.”

(§ 65913.4, subd. (7)(A)–(D).)

cultural resource does not lose its value by virtue of the fact that a significant

portion of it has been destroyed,” respondents argue that the “historic

structure” provision in section 65913.4 demonstrates the Legislature did not

intend to “eviscerate historical preservation efforts,” including protection of

“relics” such as the “remainder” of the Shellmound.

Respondents urge us to construe section 65913.4, subdivision (a)(7)(C),

in pari materia with historic preservation statutes. “It is a basic canon of

statutory construction that statutes in pari materia should be construed

together so that all parts of the statutory scheme are given effect.

[Citations.] Two ‘ “[s]tatutes are considered to be in pari materia when they

relate to the same person or thing, to the same class of person[s] [or] things,

or have the same purpose or object.” ’ [Citations.]” (Lexin v. Superior Court

(2010) 47 Cal.4th 1050, 1090–1091.)

Respondents urge that historical preservation statutes “sweep broadly

in order to protect cultural resources, in whichever form the relic appears”

and we should construe section 65913.4, subdivision (a)(7)(C) the same way.

Their examples include title 43 of the Code of Federal Regulations

section 7.3, subdivision (a)(3)(i), which includes “subsurface structures” and

“middens” in the definition of “[a]rchaeological resource”;15 Health and Safety

Code section 18955, which defines “qualified historical building or structure,”

for purposes of the State Historical Building Code, as “any structure or

property, collection of structures, and their related sites deemed of

importance to the history, architecture, or culture of an area by an

appropriate local or state governmental jurisdiction”; and Government Code

section 37361, which provides that a city “may provide for places, buildings,

15 Contrary to respondents’ representation, the regulation does not

“defin[e] structures to include ‘subsurface structures,’ including ‘middens.’ ”

structures, works of art, and other objects, having a special character or

special historical or aesthetic interest or value, special conditions or

regulations for their protection, enhancement, perpetuation or use . . . .”

CVL, to the same end, advocates an interpretation of the term

“structure” that includes the site upon which a historical structure is or was

located. In addition to the examples provided by respondents, CVL points to

a provision in the CEQA Guidelines stating that “[a]ny object, building,

structure, site, area, place, record, or manuscript which a lead agency

determines to be historically significant or significant in the architectural,

engineering, scientific, economic, agricultural, educational, social, political,

military, or cultural annals of California may be considered to be an

historical resource” (Cal. Code. Regs., tit. 14, § 15064.5, subd. (a)(3)), and to

the National Historic Preservation Act, which defines “historic property” to

mean “any prehistoric or historic district, site, building, structure, or object

included on, or eligible for inclusion on, the National Register, including

artifacts, records, and material remains relating to the district, site, building,

structure, or object” (54 U.S.C. § 300308). CVL urges that the landmark

preservation provisions of the Berkeley Municipal Code refute appellants’

“attempt to isolate ‘structures’ from their surrounding ‘sites’ or ‘properties’ ”

by defining “structure of merit” as including “structures, sites and areas,

including single structures or sites, portions of structures, groups of

structures, man-made or natural landscape elements, works of art, or

integrated combinations thereof, having a special character, or special

historical, architectural or aesthetic interest or value.” (Berkeley Mun. Code,

§ 3.24.060.B.)

All these examples highlight the importance state and local

government has attached to historical preservation. But section 65913.4 is

not a historical preservation statute. In asking us to construe 65913.4,

subdivision (a)(7)(C), in pari materia with historical preservation statutes,

respondents and CVL seek to have statutes and regulations whose primary

purpose is to afford protection to historical and cultural resources dictate the

interpretation of a statute whose primary purpose is to expedite approval of

affordable housing developments. To be sure, the historic structure exception

in section 65913.4 indicates the Legislature did not intend to require

ministerial approval of affordable housing projects at the expense of all

historical preservation. It stated a limited exception, however, which

cautions against giving that exception its broadest possible meaning.

Moreover, the provisions that respondents and CVL see as requiring a

broad definition of the term “structure” in section 65913.4, subdivision

(a)(7)(C), do not in fact define that term. In fact, the examples point to

distinctions respondents and CVL attempt to elide, between “structure”

(which may or may not be a cultural resource) and “cultural resource” (which

may or may not be a structure), as well as between “structure” and “site.”

Respondents confuse the issue, for example, in misrepresenting the

California Supreme Court as having stated that “ ‘historic structures’ . . .

include ‘historical resources’ that are ‘historically or archaeologically

significant . . . or [are] significant in the cultural annals of California.’

(Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 186.)”

What the court actually said was the opposite—that “historical resource” may

include “structures”: “ ‘ “Historical resource” includes, but is not limited to,

any object, building, structure, site, area, place, record, or manuscript which

is historically or archaeologically significant, or is significant in the

architectural, engineering, scientific, economic, agricultural, educational,

social, political, military, or cultural annals of California.’ ” (Friends of Sierra

Madre, at p. 186, quoting Pub. Resources Code, § 5020.1.)

Without question, the Shellmound is an important historical and

cultural resource. But section 65913.4, subdivision (a)(7)(C), uses the term

“structure,” not “resource” or “site.” The Legislature is certainly aware of the

distinctions between these terms. Indeed, recent amendments to section

65913.4 add protections for “potential tribal cultural resources” that,

according to the legislative findings, were not included in Senate Bill 35 due

to the Legislature’s “oversight.”16 Assembly Bill No. 831 (Assembly Bill 831),

effective September 28, 2020, added to section 65913.4. provisions requiring

the local government to engage in “scoping consultation” with California

Native American tribes “traditionally and culturally affiliated with the

geographic area,” if requested by such a tribe upon notice of the intended

project application. (§ 65913.4, subd. (b); Stats. 2020, ch. 166, § 3, eff. Sept.

25, 2020; Stats. 2020, ch. 194, § 1.5, eff. Sept. 28, 2020.) These amendments,

in effect, permit a tribe to insist that a proposed project go through the

standard discretionary review process, requiring compliance with CEQA and

its provisions for tribal consultation (Pub. Resources Code, §§ 21080.3.1,

16 Assembly Bill 831 incorporated amendments made by Assembly Bill

No. 168 (Assembly Bill 168). (Stats. 2020, ch. 194, § 2.) The first two

legislative findings in Assembly Bill 168 stated, “(a) There was an oversight

in Senate Bill 35 (Chapter 366 of the Statutes of 2017), in that it did not

consider the potential destruction of tribal cultural resources, listed on

registers or potential. [¶] (b) The Legislature desires to correct that

oversight without losing any of the protections of the Assembly Bill 52

(Chapter 532 of the Statutes of 2014) process, which is contained within the

California Environmental Quality Act.” (Stats. 2020, ch. 166, § 1.)

21080.3.2) that would be avoided under the ministerial approval process.17

As amended, section 65913.4 thus protects “tribal cultural resources”

potentially threatened by a proposed project differently from “a historic

structure that was placed on a . . . historic register” and would be demolished

by a proposed project: The former may obtain ministerial approval if the

17 Under section 65913.4, as amended by Assembly Bill 831, if the tribe

and local government agree that “no potential tribal cultural resource would

be affected by the proposed development,” the application can proceed with

the ministerial approval process. (§ 65913.4, subd. (b)(2)(A).) If the tribe and

local government agree that a “potential tribal cultural resource could be

affected by the proposed development” and document an enforceable

agreement regarding “methods, measures, and conditions for tribal cultural

resource treatment,” the ministerial process can proceed and the local

government must ensure the agreement is included in the requirements and

conditions for the project. (§ 65913.4, subd. (b)(2)C).) If the parties do not

document such an agreement, the application is not eligible for the

ministerial process. (Ibid.)

The CEQA consultation process requires the lead agency to consult

with a California Native American tribe “traditionally and culturally

affiliated with the geographic area of the proposed project,” if requested by

such a tribe upon notice of the proposed project, prior to release of a negative

declaration, mitigated negative declaration or environmental impact report.

(Pub. Resources Code, § 21080.3.1, subd. (b).) If requested by the tribe, the

consultation must include alternatives to the project, recommended

mitigation measures or significant effects on tribal cultural resources. (Pub.

Resources Code, § 21080.3.2, subd. (a).) The consultation may include

“discussion concerning the type of environmental review necessary, the

significance of tribal cultural resources, the significance of the project’s

impacts on the tribal cultural resources, and, if necessary, project

alternatives or the appropriate measures for preservation or mitigation that

the California Native American tribe may recommended to the lead agency.”

(Ibid.) Consultation is considered concluded when either the parties agree to

measures to mitigate or avoid a significant effect on a cultural resource, if a

significant effect exists, or a party, acting in good faith, determines mutual

agreement cannot be reached. (Pub. Resources Code, § 21080.3.2, subd. (b).)

affected tribe does not object, while the latter is ineligible for ministerial

approval at all.

There is no evidence in the record that the Shellmound is now present

on the project site in a state that could reasonably be viewed as an existing

structure, nor even remnants recognizable as part of a structure. The

strongest evidence of any intact portion of the Shellmound on the site, and

the evidence to which the trial court pointed in upholding respondents’

decision, is the statement from Pastron’s 2000 study that material from the

six- to eight-foot layer of Boring #19, in the northwest quadrant of the project

site, “probably represents a remnant of CA-ALA-307.” But the remnant at

issue was at best a fragment of whatever structure once existed: The report

described the material as “gray/black, dry, densely compacted clayey silt,

containing a significant amount of mussel and clam shell fragments and little

oyster shell fragments, as well as some mammal bone” and noted, “[n]o tools

or other prehistoric artifacts encountered, nor were any other signs found

that this is assuredly part of CA-ALA-307.” In 2014, Pastron reported that

“[u]pon closer examination, we determined that Boring #19 probably did not

originally contain intact shellmound between 5 and 9 feet below surface level”

and that the “thin layer of crushed shell” was “most likely a redistributed

remnant of the West Berkeley Shellmound” and “not the intact shellmound

itself.”

These findings are consistent with the fact that, in designating the

Shellmound as a City landmark, the City designated not a structure per se

but a site—the three-block area in which the Shellmound was historically

located, including “the site itself and all items found subsurface including

artifacts from the earliest native habitation, such as but not limited to native

tools, ornaments, and human burials.”18 The section 65913.4, subdivision

(a)(7)(C) exception is for a “structure” placed on a historical register, not for a

site where a structure once existed.

Additionally, this exception is for a project that will “require demolition

of a historical structure.” There is no evidence in the record of a structure

that could be demolished by appellant’s project. There may well be remnants

and artifacts that could be disturbed, but that is not the issue under

section 65913.4, subdivision (a)(7)(C) of the statute. With regard to tribal

cultural resources, the DEIR for the 2015 project concluded impacts on the

Shellmound would be reduced to “a less-than-significant level” by the

mitigation measures appellants had agreed to, and appellants confirmed in

connection with the 2018 application that they intended to provide

“archeological and tribal monitoring during all ground-disturbing activities”

despite there being no requirement for CEQA compliance under

section 65913.4.

Respondents’ determination that appellants’ project would require

demolition of a historic structure that was placed on a historic register cannot

be upheld on this record.

CVL argues that if we reverse the decision denying ministerial

approval, Assembly Bill 831’s tribal cultural resource protections should be

applied to the project despite the fact that they were not enacted until long

after appellants’ application, respondents’ denial and the trial court

18The Planning Department’s letter to appellants explaining its

analysis of the 2018 application acknowledges this point, referring to the

landmarked “area” and “site.”

proceedings.19 Respondents disagree: The City and the Department concur

with appellants that Assembly Bill 831 (and Assem. Bill 168) “are not at

issue and do not affect the outcome of the appeal,” as they were not in effect

when the City made its decision on the development application and

“[n]either AB 831 nor AB 168 include language that they were intended to

apply retroactively.’ ”

As all the parties recognize, “ ‘[g]enerally, statutes operate

prospectively only.’ ” (McClung, supra, 34 Cal.4th at p. 475, quoting Myers v.

Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840 (Myers).) “[A]

statute that interferes with antecedent rights will not operate retroactively

unless such retroactivity be ‘the unequivocal and inflexible import of the

terms, and the manifest intention of the legislature.’ (United States v.

Heth (1806) 3 Cranch 399, 7 U.S. 399, 413; accord, Myers, supra, at p. 840.)

‘[A] statute may be applied retroactively only if it contains express language

of retroactivity or if other sources provide a clear and unavoidable implication

that the Legislature intended retroactive application.’ (Myers, supra, at

p. 844.)” (McClung, at p. 467.)

In CVL’s view, the newly added statutory provisions can be applied

here because they are procedural rather than substantive and, if they are

19 As earlier noted, CVL was not a recognized tribe at the outset of

these proceedings. (See fn. 7, ante, at p. 13.) We grant CVL’s request for

judicial notice of a September 11, 2019, letter from the Native American

Heritage Commission stating that as of August 12, 2019, CVL has met the

criteria to be included on its Tribal Consultation list. CVL is now entitled to

notice and an invitation to participate in a scoping consultation with regard

to applications for development under section 65913.4 in a geographic area

with which CVL is traditionally and culturally affiliated. (§ 65913.4, subd.

(b)(1)(A)(ii); Pub. Resources Code, § 21080.3.1.) Accordingly, CVL maintains

it has a right to participate in any such consultation conducted for appellants’

project.

considered substantive, it is clear the Legislature intended the new

provisions to apply retroactively. As to the former point, the California

Supreme Court has rejected the procedural/substantive distinction CVL

advances: “Some courts have thought changes categorized as merely formal

or procedural present no problem of retrospective operation. . . . California

has rejected this type of classification: ‘In truth, the distinction relates not so

much to the form of the statute as to its effects. If substantial changes are

made, even in a statute which might ordinarily be classified as procedural,

the operation on existing rights would be retroactive because the legal effects

of past events would be changed, and the statute will be construed to operate

only in futuro unless the legislative intent to the contrary clearly appears.’

[Citations.]” (Western Security Bank, supra, 15 Cal.4th at p. 244, fn. 4.) If

respondents’ denial of ministerial approval for appellants’ 2018 application

did not comply with section 65913.4 and appellants were in fact entitled to

approval under the statute at that time, it would manifestly alter “the legal

effects of past events” to now require them to start the application process

anew in order to provide an opportunity for tribal consultation that was not

part of the statutory process when the application was submitted, processed

and decided.

CVL argues that legislative intent to apply Assembly Bill 831 to all

unapproved projects is demonstrated by subdivision (b)(8) of section 65913.4,

which states that “[t]his subdivision shall not apply to any project that has

been approved under the streamlined, ministerial approval process provided

under this section before the effective date of the act adding this subdivision.”

According to CVL, this interpretation is necessary to avoid rendering the

provision superfluous: Without it, CVL maintains, because Assembly Bill

831 is “remedial and procedural in nature,” it would apply to all projects,

approved and unapproved, save only where such application would

unconstitutionally interfere with vested rights. CVL finds further evidence of

retroactive intent in the fact that the Legislature did not adopt an

amendment sought by opponents of Assembly Bill 831 that would have

“clarif[ied] that its provisions only apply to applications submitted after the

bills effective date” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading

analysis of Assem. Bill No. 831 (2019-2020 Reg. Sess.) as amended Aug. 25,

2020, p. 9, italics added), and in references in the legislative history to the

need to “continue” to protect tribal cultural resources.

CVL’s view that expressly making Assembly Bill 381 non-retroactive for

approved projects clearly demonstrates intent to make it retroactive for all

unapproved ones ignores the difference between an application that has not

yet been decided and one that has been wrongly denied. Whatever the merits

of CVL’s retroactivity argument with regard to ministerial approval

applications pending prior to the effective date of Assembly Bill 831 (a

question this appeal does not present), it makes no sense, and would be

manifestly unfair, to say that a project which should have received

ministerial approval under the law in effect at the time it was denied must

begin the application process anew as a result of the local government

erroneously denying approval.20 If appellants’ application in fact satisfied the

statutory objective criteria, Berkeley’s refusal to approve the application

interfered with a constitutionally protected property interest which would be

20As appellants point out, CVL threatened to sue if Berkeley approved

the application under section 65913.4. Under this scenario, Assembly Bill

831 unquestionably would not have applied to the project. But, under CVL’s

reasoning, once the application was denied—even though erroneously—

Assembly Bill 831 would require appellants to start their application process

over upon successfully challenging the denial.

defeated if Assembly Bill 831 were applied retroactively. “When a person has

a legally enforceable right to receive a government benefit provided certain

facts exist, this right constitutes a property interest protected by due

process.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 207.) This

includes “a legitimate claim of entitlement to a permit or approval” where the

agency lacks discretion to withhold its approval (Clark v. City of Hermosa

Beach (1996) 48 Cal.App.4th 1152, 1180), as a local government does where

an application satisfies the objective criteria specified in section 65913.4.

The inference CVL draws from the Legislature’s failure to adopt a

proposed amendment that would have made Assembly Bill 831 inapplicable

to any application submitted prior to its effective date (rather than, as

enacted, any previously granted approval) is contrary to the rule that the

Legislature’s intent for a statute to apply retroactively must be “very clear.”

(Myers, supra, 28 Cal.4th at p. 841.) A Senate Housing Committee analysis

of Assembly Bill 168 noted that the bill provided the scoping consultation

process would not apply to a project that had been approved before the bill’s

effective date but was “not clear as to whether this process would apply to

pending SB 35 applications.” (Sen. Com. on Housing, Analysis of Assem. Bill

No. 168 (2019-2020 Reg. Sess.) as amended June 23, 2020, p. 10.) The

analysis stated, “The committee may wish to consider asking the author to

amend the bill on the Senate Floor to clarify that Assembly Bill 168 shall

apply to any pre-applications submitted to a local government as of the

effective date of the bill.” (Ibid.) Despite being so informed that the bill was

not clear as to retroactive application to pending development applications,

the Legislature did not alter the provision stating the new provisions were

not applicable to approved applications. “ ‘[A] statute that is ambiguous with

respect to retroactive application is construed . . . to be unambiguously

prospective. [Citations.]” (Myers, supra, 28 Cal.4th at p. 841.)

CVL’s reliance on comments in the legislative history advancing the

need to “continue” protections for tribal cultural resources is not persuasive.

Even CVL does not contend Assembly Bill 831 clarified existing law. The

Legislature obviously saw a need to make projects threatening tribal cultural

resources ineligible for ministerial approval and, with Assembly Bill 831,

intended to correct its failure to include such provisions in Senate Bill 35.

Statements such as “it is important that we continue to honor the

consultation process with Native American tribes and protect tribal cultural

resources” (Sen. Rules Com., Analysis of Assem. Bill No. 168, 3d Reading

(1019-2020 Reg. Sess.) as amended Aug. 25, 2020, pp. 8–9) and that the

author would work with stakeholders to craft language “to ensure that tribal

cultural resources continue to be protected” (Sen. Com. on Environ. Quality,

Analysis of Assem. Bill No. 168 (2019-2020 Reg. Sess.) as amended July 1,

2019, p. 7) simply underscore the fact that the protections sought to be added

to section 65913.4 existed prior to the enactment of Senate Bill 35 for

standard, discretionary development projects. For example, one of the

comments CVL quotes goes on to urge “restoring the right of tribal

governments to engage the development process under SB 35.” (Sen. Rules

Com., Analysis of Assem. Bill No. 168, 3d Reading (2019-2020 Reg. Sess.) as

amended Aug. 25, 2020, p. 9.)

CVL also argues that denying retroactive application of Assembly Bill

831 requires attributing to the Legislature an intent to “deprive California

tribes of the consultation procedures provided in CEQA for projects submitted

for SB 35 processing during the roughly three-year time period between the

effective date of SB 35 on January 1, 2018, and that of AB 831” on September

28, 2020. We disagree. Assembly Bill 831 was intended to correct an

oversight. In making its provisions inapplicable to projects previously

approved under section 65913.4, the Legislature demonstrated its recognition

that developers may have obtained protected interests in projects approved

meanwhile. That the Legislature allowed for some projects to proceed despite

not having been subjected to tribal consultation with respect to potentially

threatened cultural resources does not mean the Legislature intended to

“deprive” tribes of protections, only that it was also accounting for the

interests of those who relied upon section 65913.4 prior to Assembly Bill 831’s

effective date.

Respondents argue that applying section 65913.4 in the present case

would impermissibly interfere with the City’s “home rule” authority over

historic preservation.

“Charter cities are specifically authorized by our state Constitution to

govern themselves, free of state legislative intrusion, as to those matters

deemed municipal affairs.” (State Building & Construction Trades Council of

California v. City of Vista (2012) 54 Cal.4th 547, 555 (State Building &

Construction).) To determine whether a matter comes within a charter city’s

home rule authority, we must determine four issues: “whether the city

ordinance at issue regulates an activity that can be characterized as a

‘municipal affair’ ”; whether there is “ ‘an actual conflict between [local and

state law]’ ”; “whether the state law addresses a matter of ‘statewide

concern’ ”; and “whether the law is ‘reasonably related to . . . resolution’ of

that concern” and “ ‘narrowly tailored’ to avoid unnecessary interference in

local governance.” (Id. at p. 556, quoting California Fed. Savings & Loan

Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 16–17, 24 (California Fed.

Savings).) “ ‘If . . . the court is persuaded that the subject of the state statute

is one of statewide concern and that the statute is reasonably related to its

resolution [and not unduly broad in its sweep], then the conflicting charter

city measure ceases to be a “municipal affair” pro tanto and the Legislature is

not prohibited by article XI, section 5(a), from addressing the statewide

dimension by its own tailored enactments.’ ” (State Building & Construction,

at p. 556, quoting California Fed. Savings, at p. 17.)

The first three parts of the “home rule” test are not really in dispute.

First, respondents argue that protection of local landmarks is a classic

municipal affair akin to zoning, which is recognized to be a local matter.

(DeVita v. County of Napa (1995) 9 Cal.4th 763, 774 [adoption and

amendment of general plan is local, not statewide, concern]; Center for

Community Action & Environmental Justice v. City of Moreno Valley (2018)

26 Cal.App.5th 689, 704–705 [acknowledging “municipal nature” of planning

and zoning laws].) Section 37361, subdivision (b), authorizes cities to

“provide for places, buildings, structures, works of art, and other objects,

having a special character or special historical or aesthetic interest or value,

special conditions or regulations for their protection, enhancement,

perpetuation or use . . . . ” Appellants do not suggest local historical

preservation is not a municipal concern.

Second, there is an actual conflict between section 65913.4, subdivision

(a)(7)(C), and the City’s Landmark Preservation Ordinance. The City’s

municipal code authorizes the Commission to designate “structures, sites and

areas . . . having a special character, or special historical, architectural or

aesthetic interest or value” as a landmark or historic district (Berkeley Mun.

Code, § 3.24.060.A)21 and requires approval by the Commission for “any

construction, alteration, or demolition for which a City permit is required” in

a “designated landmark, in a designated historic district or structure of

merit . . . .” (Berkeley Mun. Code, § 3.24.200.) Approval “may be granted

only upon determination that the proposal conforms to” specified criteria,

which include that the proposed work will not “adversely affect the special

character or special historical, architectural or aesthetic interest or value of

the landmark and its site, as viewed both in themselves and in their setting.”

(Berkeley Mun. Code, § 3.24.260.C.1.a.) Government Code section 65913.4,

subdivision (a)(7)(C), conflicts with these provisions, as the statute would

allow construction in a designated landmark without requiring approval by

the Commission if the statutory criteria are satisfied. Respondents make no

argument to the contrary.22

Third, section 65913.4 patently addresses a matter of statewide

concern. As earlier described, the Legislature has repeatedly emphasized in

express findings and declarations that the lack of affordable housing in the

21 The code defines the Commission’s authority as extending to

“structures, sites and areas, including single structures or sites, portions of

structures, groups of structures, man-made or natural landscape elements,

works of art, or integrated combinations thereof, having a special character,

or special historical, architectural, or aesthetic interest or value.” (Berkeley

Mun. Code, § 3.24.060.A.) It defines “structure of merit” in the same terms:

“For the purposes of this chapter, structure of merit includes structures, sites

and areas, including single structures or sites, portions of structures, groups

of structures, man-made or natural landscape elements, works of art, or

integrated combinations thereof, having a special character, or special

historical, architectural or aesthetic interest or value.” (Berkeley Mun. Code,

§ 3.24.060.B.)

22 Respondents argue only that section 65913.4 as interpreted by the

trial court does not conflict with the City’s historical preservation authority,

because the trial court found section 65913.4 did not apply.

state is a crisis and that legislation including section 65913.4 and the HAA is

intended to address that crisis by encouraging and facilitating the

construction of housing in general and affordable housing in particular.

Although legislative declarations of intent to preempt local law are not

determinative (DeVita v. County of Napa, supra, 9 Cal.4th at p. 783), courts

“accord ‘great weight’ to the Legislature’s evaluation” of what constitutes a

matter of statewide concern (Baggett v. Gates (1982) 32 Cal.3d 128, 136) and

“ ‘defer to legislative estimates regarding the significance of a given problem

and the responsive measures that should be taken toward its resolution.’ ”

(City of El Centro v. Lanier (2016) 245 Cal.App.4th 1494, 1503, quoting

California Fed. Savings, supra, 54 Cal.3d at p. 24.)

As observed by the court in Anderson v. City of San Jose (2019) 42

Cal.App.5th 683, 709–710, judicial decisions have long “recognized the

statewide dimension of the affordable housing shortage in relation to various

impositions by the state into the realm of local affairs. (See Green v. Superior

Court (1974) 10 Cal.3d 616, 625, [citing ‘enormous transformation in the

contemporary housing market, creating a scarcity of adequate low cost

housing in virtually every urban setting’]; Buena Vista [(1985)]175

Cal.App.3d [289,] 306, [finding ‘need to provide adequate housing’ is a

statewide concern and rejecting home rule challenge to state provision that

mandated charter city to include certain actionable components in its

‘housing element’]; Bruce v. City of Alameda (1985) 166 Cal.App.3d 18, 22

[‘locally unrestricted development of low cost housing is a matter of vital

state concern’]; Coalition Advocating Legal Housing Options v. City of Santa

Monica (2001) 88 Cal.App.4th 451, 458 (City of Santa Monica) [noting the

Legislature and courts have declared housing to be a matter of statewide

concern].)”

The statewide nature of the issue is reflected in the manner by which

the Legislature has attempted to address it. Under the Housing Element

Law, the state’s existing and projected housing need is determined by the

California Department of Housing and Community Development on a

regional basis (§ 65584.01); regional councils of governments allocate the

need to individual localities (§ 65584.05); and each locality must develop a

plan of action (the housing element) for meeting its share of the regional

housing need, including rezoning if necessary. (§§ 65583, subd. (c), 65583.2,

65584.05, 65588.) Section 65913.4 applies only if a city fails to meet its

RHNA goals. (§ 65913.4, subd. (a)(4).)

Section 65913.4 addresses the crisis level statewide lack of affordable

housing by eliminating local discretion to deny approval where specified

objective planning criteria are met, consistent with the legislative statement

of intent, in the contemporaneous amendments to the HAA, to “significantly

increase the approval and construction of new housing for all economic

segments of California’s communities by meaningfully and effectively curbing

the capability of local governments to deny, reduce the density for, or render

infeasible housing development projects and emergency shelters,” which

intent had “not been fulfilled” despite prior versions of the HAA. (§ 65589.5,

subd. (a)(2)(K).) It is difficult to think of any way the subject and purpose of

this statute could be seen as anything other than a matter of statewide

concern.

Respondents do not dispute this. They argue, however, that this

statewide interest in increasing the amount and availability of affordable

housing does not “automatically translate into a statewide interest in

eliminating local landmark preservation authority” and the Legislature “has

not expressed any interest in overriding charter cities’ historic preservation

authority.” This framing of the issue is inapposite: The question is whether

the purpose of the ministerial approval statute is a matter of statewide

concern, not whether there is a statewide interest in a specific impact it has

on a municipal function. That is, the constitutionality of section 65913.4 does

not turn on there being a statewide interest in limiting local historical

preservation authority but rather on whether the statewide interest in

increasing affordable housing sufficiently justifies the legislation’s impact on

that authority.

Respondents cite Fielder v. City of Los Angeles (1993) 14 Cal.App.4th

137 as an example of a statewide interest that “did not translate” to a

statewide interest in overriding municipal authority. Fielder held that state

legislation prohibiting local governments from imposing real estate transfer

taxes did not prevent a city from imposing such a tax. The court recognized

that due to “escalating ad valorem property tax rates and inflationary

increases in assessed valuation,” “easing the burden of property taxation” had

been a matter of legislative concern for many years. A citywide transfer tax,

however, would have no impact on “remediation of the recognized evils which

undergird the state’s interest in controlling ad valorem real property

taxation” because it was a one-time burden on the “privilege of disposing of

one’s property and realizing its actual . . . value” that did not “upset the

delicate balance of a vulnerable group of citizens in the manner that local

variations in the ad valorem property tax rate or assessment practices

would.” (Id. at p. 145.) Applying the principle that “ ‘ “the sweep of the

state’s protective measures may be no broader than its interest” ’ ” (id. at

p. 146, quoting California Fed. Savings, supra, 54 Cal.3d at p. 25), Fielder

concluded that the transfer tax was “purely local in its effects” and not a

matter of statewide concern, and the statute’s “substantial interference in

[the city’s] ability to levy an excise tax far exceed[ed] the state’s interest in

regulating ad valorem property taxes.” (Fielder, at p. 146.)

The present case does not involve any such mismatch between the state

interest purportedly justifying interference with local authority and the

subject of municipal authority with which the statute interfered. Here, the

City’s ability to exercise discretion over development on a City landmarked

site directly interferes with the purpose of section 65913.4 to the extent an

affordable housing project on this site would otherwise meet the criteria for

ministerial approval. The relevant question is whether the statute is

reasonably related to resolving the statewide interest it addresses and does

not unduly interfere with the City’s historical preservation authority. (State

Building & Construction, supra, 54 Cal.4th at p. 556.)

There is clearly a “direct, substantial connection” between section

65913.4 and the Legislature’s purpose of expediting and increasing approvals

of affordable housing developments. The ministerial approval statute was

intended to decrease delays and local resistance to such developments, and

does so by removing local governments’ discretion to deny applications for

affordable housing developments meeting specified objective criteria. Its

interference with local governance is narrowed, first, by the fact that it

applies only if the city has failed to meet its RHNA obligations. (§ 65913.4,

subd. (a)(4).) The many detailed requirements for application of the statute

further demonstrate its relatively narrow scope.23

23In brief, the development site must be in a highly urbanized area

(§ 65913.4, subd. (a)(2)(A) & (B)) and must not be in a number of specified

locations, including a coastal zone, specified farmland, or land subject to

agricultural protection or preservation, wetlands, designated high fire hazard

zone, designated hazardous waste site, earthquake fault zone, special flood

hazard area, regulatory floodway, land subject to a natural resource

Respondents’ position, in essence, is that the Legislature has

overreached because its interest in increasing affordable housing can be

accomplished without interfering with local authority over historical

preservation. But historical preservation is precisely the kind of subjective

discretionary land use decision the Legislature sought to prevent local

government from using to defeat affordable housing development. The

Legislature long ago called attention to the role of local governments in

contributing to the “excessive cost of the state’s housing supply” with

“activities and policies . . . which limit the approval of affordable

housing . . . .” (§ 65589.5, former subd. (a)(2), now subd. (a)(1)(B)), added by

Stats. 1990, ch. 1439, § 1.) In 2017, the Legislature expressed obvious

frustration in its findings that “California’s housing picture has reached a

crisis of historic proportions despite the fact that, for decades, the Legislature

has enacted numerous statutes intended to significantly increase the

approval, development, and affordability of housing for all income levels,

including this section” (§ 65589.5, subd. (a)(2)(J)) and that “the Legislature’s

intent in enacting [section 65589.5] in 1982 and in expanding its provisions

since then was to significantly increase the approval and construction of new

protection plan, habitat for protected species, or land under a conservation

easement (§ 65913.4, subd. (a)(6)) or subject to specified laws governing

mobile home and recreational vehicle occupancy (§ 65913.4, subds. (a)(10));

the development must not require demolition of specified housing or of a

historical structure that was placed on a historic register (§ 65913.4, subd.

(a)(7)), must be consistent with existing objective zoning, subdivision and

design review standards (§ 65913.4, subd. (a)(5), (a)(9)), must include

specified percentages of affordable housing, which must remain at affordable

levels for a set duration (45 years for owned units, 55 years for rental units)

(§ 65913.4, subds. (a)(3)(A), (a)(4)(B)), and must comply with specified

requirements for payment of at least the prevailing wage for the geographic

area and use of a skilled and trained workforce for construction (§ 65913.4,

subds. (a)(8), (a)(9)).

housing for all economic segments of California’s communities by

meaningfully and effectively curbing the capability of local governments to

deny, reduce the density for, or render infeasible housing development

projects and emergency shelters. That intent has not been fulfilled.”

(§ 65589.5, subd. (a)(2)(K), added by Stats. 2017, ch. 378, § 1.5.)

As we have discussed, we view the legislative findings contained in

section 65589.5 as relevant in construing section 65913.4, which was enacted

at the same time as the 2017 amendments to section 65589.5 and deals with

an aspect of the same issue. With respect to appellants’ project and the City

landmarked Shellmound site, in light of the Legislature’s long history of

attempting to address the state’s housing crisis and frustration with local

governments’ interference with that goal, and the highly subjective nature of

historical preservation, the intrusion of section 65913.4 into local authority

over such preservation is not broader than necessary to achieve the purpose

of the legislation.24

We conclude the trial court erred in denying appellants’ petition

pursuant to section 65913.4, subdivision (a)(7)(C).

II.

The second basis upon which the trial court denied appellants’ petition

for writ of mandate was that section 65913.4 does not apply to mixed-use

developments. The court noted that the only mention of commercial or

mixed-use development in section 65913.4 is in subdivision (a)(2)(C), which,

as enacted in 2017 and in effect throughout the proceedings below, provided:

24 As the present case involves the City’s historical preservation

authority only with regard to the Shellmound and its site, we have no

occasion to consider the validity of any intrusion section 65913.4 might make

into local historical preservation authority over other historical and cultural

resources.

“The development is located on a site that satisfies all of the following:

[¶] . . . [¶] A site that is zoned for residential use or residential mixed-use

development, or has a general plan designation that allows residential use or

a mix of residential and nonresidential uses, with at least two-thirds of the

square footage of the development designated for residential use.”25

Rejecting appellants’ view that the two-thirds requirement “relates to a

proposed project rather than to a site for a proposed project,” the trial court

read this language as “provid[ing] restrictions as to sites on which a project

can be located and still be eligible for SB 35 streamlined approval,” limiting

streamlined approval to projects on “mixed-use sites which require minimum

two-thirds residential use.”26

25 As amended by Assembly Bill 831, paragraph (2)(C) of section

65913.4, subdivision (a), now provides: “(2) The development and the site on

which it is located satisfy all of the following: [¶] . . . [¶ (C) It is zoned for

residential use or residential mixed-use development, or has a general plan

designation that allows residential use or a mix of residential and

nonresidential uses, and at least two-thirds of the square footage of the

development is designated for residential use.” (Stats. 2020, ch. 194, § 1.5,

italics added.)

26 The court explained its conclusion as follows: “The court reads the

last phrase of the subsection as a subordinate clause that acts to modify the

immediately preceding independent clause that is, it describes a general plan

designation with a mixed-use provision, limiting the applicable SB 35 sites to

mixed-use sites which require minimum two-thirds residential use by square

feet. Another textual clue is that SB 35 applies only when the project is a

‘multifamily housing development.’ (Gov. Code, § 65913.4, subd. (a)(l).) The

context and structure of the mixed-use zoning provision also indicate that the

two-thirds proviso is part of a restriction on ‘the site’ rather than the

development project itself. (Gov. Code, § 65913.4, subd. (a)(2) [‘The

development is located on a site that satisfies all of the following . . .’]; c.f.,

e.g., § 65913.4(a)(6), (a)(7), (a)(10) [listing other requirements and restrictions

on the site of the development project].) When the authors of SB 35 wanted

to place limitations on the development project itself rather than its site, they

Appellants first contend the trial court erred in denying their writ

petition on this basis because it was not one of the reasons the City provided

for its denial of ministerial approval. Section 65913.4 requires that if a local

government determines a proposed development “is in conflict with any of the

objective planning standards specified in subdivision (a), it shall provide the

development proponent written documentation of which standard or

standards the development conflicts with, and an explanation for the reason

or reasons the development conflicts with that standard or standards”

(§ 65913.4, former subd. (b)(1), now subd. (c)(1)) and, if it fails to do so, “the

development shall be deemed to satisfy the objective planning standards

specified in subdivision (a).” (§ 65913.4, former subd. (b)(2), now subd. (c)(2).)

As earlier described, the Department’s 90-day letter informed

appellants that Senate Bill 35 did not apply to the project “to the extent it

impinges on legitimate municipal affairs (preservation of a designated City

landmark)” but nevertheless provided the department’s analysis of each of

the statutory objective standards and its determination that several

components of the application were inconsistent with the criteria for

streamlined approval or that further information was needed. The conflicts

specified in the letter were with the statutory requirement for consistency

expressly described the requirement as one that the ‘development satisfies’

rather than one that the site satisfies. (See, e.g., § 65913.4(a)(4) [‘The

development satisfies both of the following’ affordable housing minimums],

(a)(5) [The development . . . is consistent with objective zoning standards,

objective subdivision standards, and objective design review

standards . . . .’ ”)

with objective zoning and design review standards (§ 65913.4, subd. (a)(5))27

and with the requirement that the development not require demolition of a

historic structure (§ 65913.4, subd. (a)(7)(C)). Other potential conflicts were

identified. The analysis of section 65913.4, subdivision (a)(2)(C), did not

indicate any inconsistency.28

Appellants contend that because respondents failed to identify any

conflict with section 65913.4, subdivision (a)(2)(C), in the 90-day letter, the

project had to be deemed to comply with that standard pursuant to section

65913.4, former subdivision (b), now subdivision (c). Furthermore, appellants

argue the trial court erred in upholding the denial on a basis not relied upon

by respondents in denying ministerial approval. “ ‘ “[A]n agency’s order must

be upheld, if at all, ‘on the same basis articulated in the order by the agency

itself.’ ” ’ (Pacific Gas & Electric Co. v. Public Utilities Com. (2000) 85

Cal.App.4th 86, 96; see Securities and Exchange Comm’n v. Chenery

Corp. (1947) 332 U.S. 194, 196.)” (New Cingular Wireless PCS, LLC v. Public

Utilities Com. (2016) 246 Cal.App.4th 784, 820.)

27 Regarding the zoning and design conflicts, the letter directed, “See

Attachment A for additional explanation.” Attachment A, entitled “Objective

City of Berkeley Standards Applicable to the 1900 Fourth Street Project,”

sets out numerous standards from the Berkeley Municipal Code and General

Plan, with the City’s analysis of conflicts and potential conflicts.

28 With respect to section 65913.4, subdivision (a)(2)(C), the letter

stated: “City analysis: Zoning District CW West Berkeley Commercial

District Permitted uses include mixed-use developments incorporating

residential and retail or residential use and other permitted use Berkeley

Municipal Code Chapter 23E64. The site is designated Avenue Commercial

with a Development Node overlay in the Berkeley General Plan. The site is

also designated General Commercial within the West Berkeley Plan and is

subject to Urban Design and Preservation Element policies protecting

culturally important sites.”

Respondents assert they fully complied with their obligation under

section 65913.4 to inform appellants of any conflict with objective planning

standards and maintain their contention that the statute does not apply to

mixed-use projects is a legal argument which was not required to be included

in the June 2018 letter. This position is puzzling, as the first point made in

the letter was a legal argument—that section 65913.4 did not apply to the

project because the statute impinged on municipal affairs with regard to

preservation of a designated City landmark. It also defies at least the spirit,

if not the letter, of section 65913.4, subdivision (b)(1)), which requires local

governments to carefully explain any determination that a proposed

development conflicts with “any of the objective planning standards specified

in subdivision (a).” (§ 65913.4, former subd. (b)(1), now subd. (c)(1).) Section

65913.4, subdivision (a)(2)(C), is one such standard. Respondents’ 90-day

letter gave appellants no notice that the City believed there was any conflict

with respect to the mixed-use aspect of their application.

In any event, this point is ultimately inconsequential. It is clear to us

that the trial court misinterpreted section 65913.4, subdivision (a)(2)(C), and

that the ministerial approval statute does apply to mixed-use developments

that meet its criteria. Regardless of whether the project should be deemed

consistent with section 65913.4, subdivision (a)(2)(C), due to the

Department’s failure to raise any conflict with that provision in its June 2018

letter, the record confirms that under a proper reading of the statute, the

project is consistent with the standard.

Respondents argue that nothing in section 65913.4 authorizes its

application to mixed-use projects. They describe 65913.4 as containing

project-specific, site-specific, development-specific and applicant-specific

requirements, and point out that the project-specific requirement for “a

multifamily housing development that contains two or more residential

units” (§ 65913.4, subd. (a)(1)) says nothing about mixed uses. The only

reference to mixed-use appears in subdivision (a)(2), which at the time of the

application, administrative decision and trial, began, “The development is

located on a site that satisfies all of the following . . .” Consequently, in

respondents’ view, subdivision (a)(2)(C) must be read as requiring that the

site for the proposed project be zoned for, or have a general plan designation

allowing, residential use or residential mixed-use development, with the

zoning or general plan designation also mandating that at least two-thirds of

the square footage of any development be designated for residential use.

This is a strained and unreasonable reading of the statutory language

that makes no sense in light of the statute’s purpose. Section 65913.4

consistently uses “the development” to refer to the project that is the subject

of an application for ministerial approval. (E.g., § 65913.4, subds. (a)(5) [“The

development . . . is consistent with objective zoning standards . . .”]; (a)(6)

[“The development is not located on a site that is any of the following . . .”],

italics added.) On the other hand, the statute uses “a development” when

referring to development projects generally. (E.g., § 65913.4, subds. (a)

[“A development proponent may submit an application for a development that

is subject to the streamlined, ministerial approval process . . .”]; (a)(5)(B)

[“A development shall be deemed consistent with the objective zoning

standards . . . if . . .”]; (b)(1) [“[i]f a local government determines that a

development submitted pursuant to this section is in conflict with any of the

objective planning standards . . . it shall provide the development proponent

with . . .”], italics added.) Reading “the development” in subdivision (a)(2)(C)

as referring to any development rather than the subject of a particular

application would be inconsistent with the otherwise clear pattern in the

statutory language.

Moreover, respondents’ interpretation would be inconsistent with the

purpose of section 65913.4 to encourage and expedite the processing of

affordable housing projects. The statute expressly directs that it be

“interpreted and implemented in a manner to afford the fullest possible

weight to the interest of, and the approval and provision of, increased

housing supply.” (§ 65913.4, former subd. (l), now subd. (n).)29 Respondents’

interpretation would discourage development of affordable housing by

limiting the applicability of the streamlined approval process to projects on

sites with a minimum residential requirement for mixed-use developments

even if the development itself is at least two-thirds residential. Here,

respondents’ interpretation would make the proposed project ineligible for

ministerial approval despite it being 88 percent residential and located on a

site zoned for mixed uses.

Subdivision (a)(2)(C) of section 65913.4 is far more naturally read—

semantically and logically—as requiring that the site for a proposed

development be zoned for, or have a general plan designation allowing, either

residential or mixed-use, and that at least two-thirds of the proposed

development must be residential.

This interpretation is consistent with the HAA, which defines

“[h]ousing development project” as “a use consisting of . . . [¶] “[r]esidential

units only” or “[m]ixed-use developments consisting of residential and

nonresidential uses with at least two-thirds of the square footage designated

for residential use.” (§ 65589.5, subd. (h)(2).) The two-thirds residential

29 Subdivision (l) was added to section 65913.4 as part of amendments

effective January 1, 2019. (Stats. 2018, ch. 840, § 2.)

requirement was added to section 65589.5 (effective Jan. 1, 2018) by

amendments filed with the Secretary of State on the same date as Senate

Bill 35. (Stats. 2017, ch. 368, § 1.5; Stats. 2017, ch. 373, § 1.5; Stats. 2017,

ch. 378, § 1.5.) As statutes in pari materia, addressing the same subject and

advancing the same goal, sections 65589.5 and 65913.4 should be construed

together. (Lexin v. Superior Court, supra, 47 Cal.4th at p. 1090.) The

language used in section 65589.5 to describe the type of mixed-use

development meeting the statutory definition of “housing development

project”—“with at least two-thirds of the square footage designated for

residential use”—is precisely that used in section 65913.4, subdivision

(a)(2)(C), with reference to mixed-uses. This is a strong indication the phrase

was intended as a limitation on the type of development subject to ministerial

approval, not the site upon which the development is located.

Indeed, this was the interpretation adopted by the City Manager,

whose explanation to the City Council of the project application and

requirements of section 65913.4, stated, with respect to subdivision (a)(2)(C):

“Zoning and Residential Uses. The development must be located on a legal

parcel or parcels that are zoned for residential uses. At least 2/3 of the floor

area of the proposed building must be dedicated to residential uses.” It is

also the interpretation accorded by the DHCD Guidelines, which were issued

pursuant to the authority granted by section 65913.4, former subdivision (i),

now subdivision (l).30 Respondents argue the DHCD Guidelines are

30“The department may review, adopt, amend, and repeal guidelines to

implement uniform standards or criteria that supplement or clarify the

terms, references, or standards set forth in this section. Any guidelines or

terms adopted pursuant to this subdivision shall not be subject to Chapter

3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the

Government Code.” (§ 65913.4, former subd. (i), now subd. (l).)

inapplicable to this case because they issued on November 19, 2018,

subsequent to the Department’s June 2018 letter, and expressly state that

they apply to applications submitted on or after January 1, 2019 (DHCD

Guidelines, § 101(b)). Even if not directly applicable, however, it is worth

observing that our interpretation is consistent with that of the agency

charged with clarifying the terms and standards set forth in section 65913.4.

The DHCD Guidelines state that “[t]o qualify to apply for the Streamlined

Ministerial Approval Process,” “[a]t least two-thirds of the square footage of

the development shall be designated for residential use.” (DHCD Guidelines,

§ 400(b).)31

Our interpretation is confirmed by subsequent amendments to section

65913.4. Assembly Bill No. 101 (Assembly Bill 101), effective July 31, 2019,

added a sentenced to subdivision (a)(2)(C) of section 65913.4 that can only

refer to a specific proposed development: “Additional density, floor area, and

units, and any other concession, incentive, or waiver of development

standards granted pursuant to the Density Bonus Law in Section 65915 shall

be included in the square footage calculation.” (Stats. 2019, ch. 159, § 8.)

“Density bonus” refers to an increase over the otherwise maximum allowable

residential density which must be granted when the applicant for a housing

development agrees to provide a certain amount of low-income (or other

specified types of) housing, and is calculated for a given housing development

based upon the percentage of units of the specified type in that development.

31 The Guidelines further state that “[b]oth residential and non-

residential components of a qualified mixed-use development are eligible for

the Streamlined Ministerial Approval Process. Additional permitting

requirements pertaining to the individual business located in the commercial

component (e.g. alcohol use permit or adult business permit) are subject to

local government processes.” (DHCD Guidelines, § 400(b).)

(§ 65915, subds. (b)(1), (f).) The amendment’s directive regarding calculation

of square footage would make no sense if the two-thirds requirement was for

zoning; without a specific proposed development, there would be no density

bonus and concessions to calculate. The Legislative Counsel’s Digest—which

is entitled to “great weight” (Jones v. Lodge at Torrey Pines Partnership

(2008) 42 Cal.4th 1158, 1170)—explained that existing law “authorizes a

development proponent to submit an application for a housing development

that is subject to a streamlined, ministerial approval process . . . if the

development satisfies specified objective planning standards,” one of which is

that “at least 2/3 of the square footage of the development be designated for

residential use,” and Assembly Bill 101 “would require that the calculation to

determine whether 2/3 of the square footage of the development is designated

for residential use include additional density, floor area, and units, and any

other concession, incentive, or waiver, granted pursuant to the Density Bonus

Law.” (Legis. Counsel’s Dig., Assem. Bill No. 101 (2019-2020 Reg. Sess.)

par. (4).)

Similarly, the Legislative Counsel’s Digest for Assembly Bill 1485

(Stats. 2019, ch. 663, § 1; Stats. 2019, ch. 844, § 5.3), which specified that

calculation of the development’s square footage does not include underground

space, stated, “Existing law requires that at least 2/3 of the square footage of

a development receiving approval pursuant to these provisions must be

designated for residential use. [¶] This bill would provide that ‘square

footage,’ for these purposes, does not include underground space, such as

basements or underground parking garages.” (Legis. Counsel’s Dig., Assem.

Bill No. 1485 (2019-2020 Reg. Sess.) par. (2).)

Finally, Assembly Bill 831 amended section 65913.4, subdivision

(a)(2)(C), to read: “(2) The development and the site on which it is located

satisfy all of the following: [¶] . . . [¶] (C) It is zoned for residential use or

residential mixed-use development, or has a general plan designation that

allows residential use or a mix of residential and nonresidential uses, and at

least 2/3 of the square footage of the development is designated for

residential use.” (Italics added.) This simple change of language removes

any reasonable doubt that the 2/3 requirement applies to the development

submitted for approval and not the zoning applicable to the site.

According to the bill’s author, “AB 831 clarifies that the 2/3 residential

requirement in SB 35 applies only to a project and not the project’s site or its

zoning.” (Sen. Com. on Housing, Analysis of Assem. Bill No. 831 (2019-2020

Reg. Sess.) as amended July 21, 2020, p. 4.) In fact, this clarification appears

to have been occasioned by the trial court’s decision in the present case. The

committee report further explains: “Clarifying the 2/3 requirement. SB 35

provides that 2/3 of a project must be residential (i.e. authorizes certain

mixed-use projects) to qualify for streamlined approval. In its guidelines,

HCD interprets the language this way. Recently in an SB 35 lawsuit, a

superior court judge interpreted SB 35 streamlining to apply only to mixed-

use projects in the narrow circumstance where the site’s zoning calls for at

least 2/3 residential. According to the sponsors, there is likely not a zoning

district in the state that would meet this requirement. This bill clarifies the

author’s intent that the 2/3 residential requirement apply to the proposed

project itself, not the zoning.” (Sen. Com. on Housing, Analysis of Assem.

Bill No. 831 (2019-2020 Reg. Sess.) as amended July 21, 2020, p. 6.)

Respondents argue these amendments are inapplicable to the present

case because they were adopted and became effective subsequent to the

denial of ministerial approval. But “a statute that merely clarifies, rather

than changes, existing law does not operate retrospectively even if applied to

transactions predating its enactment.” (Western Security Bank, supra,

14 Cal.4th at p. 243.) The 2019 amendments addressed how to calculate the

square footage specified in subdivision (a)(2)(C) of section 65913.4; they did

not change the underlying requirement that “at least two-thirds of the square

footage of the development” be designated for residential use. The 2020

amendment made a non-substantive change in language that served only to

clarify the statute in response to a court’s decision. The amendments did not

“change the legal effect of past actions” (Western Security Bank, at p. 252)

and therefore can properly be applied to this case. They demonstrate

unequivocally what the language of the statute, in our view, indicated all

along: that the ministerial approval statute applies to mixed-use

developments that designate at least two-thirds of their square footage to

residential use.

Here, the application specified that the residential area of the

development would occupy 88 percent of the space (254,888 gross square feet

of the project’s total 286,809 square feet). It thus satisfied the requirement

that at least two-thirds of the total square footage be designated for

residential use.

Respondents further argue that applying section 65913.4 to mixed-use

developments interferes with the City’s home rule authority to regulate

commercial uses. The Berkeley Municipal Code requires a use permit, with

public hearing, where the retail space in a mixed-use development comprises

20,000 square feet or more. (Berkeley Mun. Code, § 23E.64.030.) The 2018

application describes the proposed project as including approximately 27,500

square feet of retail space and parking. Because section 65913.4, subdivision

(a), provides for a ministerial approval process under which the proposed

development “is not subject to a conditional use permit,” respondents

maintain it interferes with charter cities’ traditional land use authority to

determine whether particular commercial uses should be subject to

appropriate conditions of approval such as security measures, hours of

operations, noise restrictions, light pollution and emissions controls.

“ ‘Land use regulation in California has historically been a function of

local government under the grant of police power contained in California

Constitution, article XI, section 7.’ [Citation.]” (DeVita v. County of Napa,

supra, 9 Cal.4th at p. 782; IT Corp. v. Solano County Bd. of

Supervisors (1991) 1 Cal.4th 81, 89 [“The power of cities and counties to zone

land use in accordance with local conditions is well entrenched.”].)

Respondents argue that the Legislature’s interest in increasing the supply of

affordable housing does not require it to intrude upon local authority over

commercial uses, and the Legislature has not expressed any intention to

preempt local authority over such uses.

The extent to which section 65913.4 interferes with local regulation of

commercial uses appears to be fairly minimal, and incidental to the statute’s

purpose of facilitating development of affordable housing. While the overall

“multifamily housing development” eligible for ministerial approval is not

subject to a conditional use permit, nothing in section 65913.4 requires or

allows ministerial approval of a development that includes commercial uses

conflicting with local zoning. To the contrary, to be eligible for ministerial

approval, the proposed development must be “consistent with objective

zoning standards, objective subdivision standards, and objective design

review standards” established by the locality. (§ 65913.4, subd. (a)(5).)

Nothing in section 65913.4 exempts the businesses that would occupy the

commercial portion of appellants’ project from permit and licensing

requirements for their particular operations. In light of the limited extent of

any intrusion into municipal authority over commercial uses, and narrowly

delineated circumstances in which section 65913.4 applies, we conclude the

statute—which, as we have said, is reasonably related to resolving the

statewide interest in alleviating delays and obstacles to development of

affordable housing projects—does not unduly interfere with the City’s land

use authority. (State Building & Construction, supra, 54 Cal.4th at p. 556.)

III.

Respondents additionally denied ministerial approval due to asserted

conflicts with “objective zoning standards, objective subdivision standards,

and objective design review standards in effect at the time that the

development is submitted to the local government pursuant to this section”

(§ 65913.4, subd. (a)(5)). Respondents found two such conflicts, one with the

City’s AHMF requirements with respect to very low-income units (§ 65913.4,

subd. (a)(5)), and the other with the City’s requirement that the project meet

applicable performance standards for off-site impacts and not exceed the

amount and intensity of use that can be served by available traffic capacity

(Ibid.).

The stated purpose of the City’s AHMF is to mitigate the impacts of

new market-rate rental units on the need for affordable housing. (Berkeley

Mun Code, § 22.20.065.A.8.) Berkeley Municipal Code section 22.20.065.C

requires the AHMF, or a portion of it, to be paid if a development does not

provide 20 percent of the total units at rates affordable to low and very low-

income households,32 with 50 percent of the below market rate units

affordable to very low-income households. Appellants’ project includes 50

percent low-income units—considerably more than the 20 percent total below

market rate units required by the municipal code. Respondents denied the

project application on the ground that the proposed project failed to comply

with the “objective requirements” of the AHMF ordinance in that it does not

include any very low-income units, appellants claimed they were exempt from

the fee requirement but had not formally requested an exemption and “the

City cannot accept an application that summarily declares that the AHMF

will not be paid.”33

Appellants contend the AHMF ordinance cannot be used as a basis for

denial of their application for ministerial approval because section 65913.4

requires ministerial approval for a project meeting the specified objective

32“Low-income household” is defined as household income of no more

than 80 percent of the area median income (AMI) (Berkeley Mun. Code,

§ 22.20.065.B.4); “very low-income household” is defined as household income

of no more than 50 percent of AMI (Berkeley Mun. Code, § 22.20.065.B.7).

33 The September 2018 denial letter stated, “Municipal Code Section

22.20.065 requires that applicants for rental housing projects either pay the

specified AHMF or designate a percentage of the proposed housing units as

affordable to low-income (“LI”) and very low-income (“VLI”) households. The

Project application asserts that ‘the Project is exempt from the City’s

affordable housing mitigation fee at this time . . . by providing 50 of its units

for low-income households.’ . . . However, the application does not provide

the requisite number of VLI units that are required by Municipal Code

Section 22.20.065.C.4, nor have you undertaken any formal process to

request an exemption from the AHMF. Thus, you have not established that

the Project is exempt from the AHMF, and the City cannot accept an

application that summarily declares that the AHMF will not be paid. The

development application thus fails to comply with the objective requirements

of Municipal Code Section 22.20.065, rendering SB 35 inapplicable to the

Project.”

planning standards, and a mitigation fee is not a standard. As appellants

observe, the development and site characteristics and requirements described

in section 65913.4 as “objective planning standards,” and the statute’s

requirements for consistency with “objective zoning standards, objective

subdivision standards, and objective design review standards,” refer to

objective criteria or benchmarks a given development may or may not satisfy.

(See Merriam-Webster Dict. Online, supra, <https://www.merriam-

webster.com/dictionary/standard> [as of Apr. 20, 2020] [a standard is

“something set up and established by authority as a rule for the measure of

quantity, weight, extent, value, or quality or point of reference”].) A

mitigation fee does not establish such a criterion: It is a “monetary exaction”

imposed to “defray the cost of public facilities needed to serve the growth

caused by the project.” (Boatworks, LLC v. City of Alameda (2019) 35

Cal.App.5th 290, 294.)

Respondents obscure the issue with subtle mischaracterizations of both

appellants’ argument and the AHMF ordinance. According to respondents,

appellants “contend that the 2018 Application satisfied the Affordable

Housing Mitigation Fee Ordinance,” which respondents describe as requiring

that at least 50 percent of affordable units be set aside for very low-income

households “unless the developer opts instead to pay a mitigation fee.” But

appellants have never claimed to satisfy the ordinance; they maintain they

are not required to satisfy it. And the ordinance imposes a mitigation fee on

new rental housing development which the applicant “may elect to avoid” by

providing the requisite amount of affordable housing. (Berkeley Mun. Code,

§ 22.20.065.C.2.) By reversing the direct object of the ordinance and its

provision of an alternative to avoid that object, respondents are able to argue

that appellants did not meet the “objective criterion” established by the

ordinance and, therefore, the application for ministerial approval could be

denied.

The AHMF itself, as opposed to the provision of sufficient affordable

housing to avoid it, is not a “standard” with which a proposed development

can be inconsistent. The decision whether to pay the fee or avoid it by

providing the required number and type of housing is not required at the

time of application; the election may be made until the date the first building

permit for the development is issued. The fee must be paid “at the issuance

of a Certificate of Occupancy.” (Berkeley Mun. Code, § 22.20.065.C.1.)

Whether the City could grant approval under section 65913.4 and

subsequently enforce Berkeley Municipal Code section 22.20.065 is a question

not presented in the current posture of this case. It is sufficient for us to hold

that the AHMF ordinance did not provide respondents with a valid basis for

denying ministerial approval due to conflict with an objective planning

standard.

Appellants argue persuasively that the statewide interest served by

section 65913.4 should not be defeated where a project complies with the

standards for ministerial approval set forth in the statute and a local

ordinance requires a lower percentage of low-income housing, albeit with an

included component of required units for very low-income households.34

34 The affordable housing percentage specified in the City’s AHMF

ordinance is both more and less stringent than what section 65913.4 requires:

It is more stringent in requiring half of a development’s low-income housing

to be affordable for very low-income households, but its total affordable

housing requirement—20 percent of the units in a development—is

considerably less than the 50 percent low-income housing required by section

65913.4 for a locality that has not met its RHNA share. While section

65913.4 expressly provides for its requirements to give way to more stringent

local ordinances in some circumstances, the situation posed by the AHMF is

Section 65913.4, as we have said, was intended to expedite processing of

applications for low-income housing developments by curbing local resistance

and delays. Respondents’ reliance upon Berkeley Municipal Code section

22.20.065 to deny ministerial approval to a project providing 50 percent low-

income housing frustrates the purpose of section 65913.4.35

not one of them. For example, section 65913.4 provides for a local ordinance

to prevail over the statute’s requirement that a proposed development

provide at least 10 percent of its units to low-income households where the

locality has not met its RHNA for above moderate-income housing if the local

ordinance requires more than 10 percent low-income housing. (§ 65913.4,

subd. (a)(4)(B)(i)(I).) For localities within the San Francisco Bay Area,

section 65913.4 requires dedication of 20 percent of a development’s units to

households making “below 120 percent of the area median income with the

average income of the units at or below 100 percent of the area median

income,” but provides for a local ordinance to apply if it “requires greater

than 20 percent of the units be dedicated to housing affordable to households

making at or below 120 percent of the area median income, or requires that

any of the units be dedicated at a level deeper than 120 percent.” (§ 65913.4,

subd. (a)(4)(B)(i)(II)(ia).) Where, as here, a project’s eligibility for ministerial

approval is pursuant to section 65913.4, subdivision (a)(4)(B)(ii), the statute

specifies that its requirement of 50 percent is superseded by a local ordinance

“that requires greater than 50 percent of the units be dedicated to housing

affordable to households making at or below 80 percent of the area median

income”—but, unlike subdivision (a)(4)(B)(i)(II)(ia), it does not say the same

for local ordinances requiring provision of housing for households at even

lower income levels.

35The City’s municipal code provides a formula for determining a

proportional discount to the AHMF for projects that include low-income and

very low-income units comprising less than 20 percent of the total units.

Respondents found that appellants did not qualify for a discounted AHMF

because the project did not include any very low-income units. Appellants

argue that imposing the full AHMF fee on a project providing 50 percent

affordable housing units is plainly excessive.

“When a local agency imposes any fee or exaction as a condition of

approval of a proposed development, as defined by Section 65927, or

development project, those fees or exactions shall not exceed the estimated

The 90-day letter informed appellants that the project “potentially”

conflicted with the “objective standards” that it “[b]e capable of meeting any

applicable performance standards for off-site impacts” and “[n]ot exceed the

amount and intensity of use that can be served by available traffic capacity

and potential parking supply” (Berkeley Mun. Code, § 23E64.090) and stated

that an updated traffic analysis was required and the City “has ‘Guidelines

for Development of Traffic Impact Reports’ which includes methodology and

the requirement to identify feasible mitigation measures and provide

mitigation.” The 90-day letter made no mention of any specific criterion for

measuring traffic impacts, and the Guidelines for Development of Traffic

Impact Reports (Traffic Guidelines) referenced in the letter are not part of

the administrative record.36 The letter thus failed to comply with the

reasonable cost of providing the service or facility for which the fee or

exaction is imposed.” (§ 66005, subd. (a); Boatworks, LLC v. City of Alameda

supra, 35 Cal.App.5th at p. 294.) When the City’s formula is applied to a

project with a combined total of 20 percent low and very low-income units,

the resulting fee is zero, reflecting the determination that this proportion of

affordable housing units offsets the costs imposed by the project. The same

formula suggests that the 50 percent affordable housing provided by

appellants’ project would have a substantial positive impact. While this does

not account for the lack of very low-income housing, appellants suggest that if

low-income housing is assumed to be half as mitigating as very low-income

housing, in effect lowering the proportion of affordable housing in their

project from 50 to 25 percent, the City’s formula would still result in a

positive impact. Given our conclusion that the AHMF ordinance does not

establish an objective standard with which a proposed development can be

found inconsistent, we find it unnecessary to resolve the excessiveness issue.

36Appellants responded that section 65913.4 did not require a traffic

analysis but nevertheless provided a “Focused Transportation Impact

Analysis,” which concluded the “project trips would not cause any significant

impacts at the intersections evaluated in the 2016 DEIR under Existing Plus

statutory requirement that the City provide, within 90 days of application,

“written documentation of which standard or standards the development

conflicts with, and an explanation for the reason or reasons the development

conflicts with that standard or standards.” (§ 65913.4, former subd. (b)(1),

now subd. (c)(1).) “If the local government fails to provide the required

documentation pursuant to paragraph (1), the development shall be deemed

to satisfy the objective planning standards specified in subdivision (a).”

(§ 65913.4, former subd. (b)(2), now subd. (c)(2).)

Respondent’s September 2018 denial letter clarified that the issue was

with cumulative traffic impacts.37 This explanation, however, came too late

to allow appellants to attempt to address the asserted conflict.38

Furthermore, its only reference to anything like an objective criterion for

Project conditions” and the “project would not cause a significant impact on

safety or emergency access.”

37 The letter stated that even the original, smaller, 2015 project “was

found to contribute to exceedances of street capacity in cumulative scenarios,

in conflict of the City’s Guidelines,” citing the portions of the DEIR

concerning traffic impacts, and that “[w]hen analyzed pursuant to the City’s

Guidelines for Development of Traffic Impact Reports (i.e., an ‘external and

uniform benchmark or criterion’), it is not clear that the Project would meet

these performance standards under cumulative traffic conditions.”

38The 90-day letter mentioned cumulative impacts only in an

attachment summarizing the impacts and mitigation measures discussed in

the DEIR, which include four intersections found to have significant impacts

under “Cumulative Plus Project Conditions.” The DEIR’s findings are not in

themselves “objective standards”; they are conclusions CEQA requires to be

considered in making discretionary decisions with potential environmental

impacts. In the CEQA context, even where significant impacts are

determined to be unavoidable, a lead agency can still approve the project if it

determines the unavoidable impacts are acceptable due to overriding

economic, legal, social, technological or other benefits of the project. (Pub.

Resources Code, §§ 21002, 21081; Cal. Code Regs., tit. 14, §§ 15092, 15093.)

assessing cumulative traffic was in a footnote relating the DEIR’s description

of a portion of the City’s Traffic Guidelines, and that description overstated

the definitiveness of the criterion mentioned, omitting qualifying language

that appears in the Traffic Guidelines themselves.39 Even on this appeal,

while arguing that appellants did not demonstrate the project would satisfy

objective “cumulative traffic criteria,” respondents do not describe a specific

criterion for assessing cumulative traffic impacts. To the extent the criterion

stated in the Traffic Guidelines can be considered an “objective zoning

standard” within the meaning of section 65913.4, we are led to it only

through respondents’ citation to the DEIR, which in turn refers to the Traffic

Guidelines—which, again, are not even part of the administrative record.

39 The denial letter quotes the DEIR’s statement that the traffic related

findings were based on “City of Berkeley criteria, which state that an impact

would occur only if the intersection meets peak hour signal warrants,

operates at LOS F, and adds more than 10 vehicles to the critical

approach/movement.” The Traffic Guidelines, as we have noted, are not a

part of the administrative record. As they appear through the City’s website,

however, the statement to which the DEIR refers appears less definitive. The

Traffic Guidelines state, with respect to unsignalized intersections: “Unlike

for signalized intersections, it is difficult to establish fixed significance

thresholds for unsignalized intersections, particularly those with only side-

street stop control. In general, mitigations are required if a movement is at

LOS F, the peak hour signal warrant is met, and a minimum of 10 vehicles is

added to the critical movement. Nevertheless, as delays increase dramatically

once LOS F is reached, consideration should be given to the number of new

trips added by a project and other factors, such as the feasibility of

alternative routes and the proximity of adjacent traffic signals.” (Italics

added.) Thus, what reads as an objective standard as described in the DEIR

appears to leave room for interpretation—and discretion—as actually stated

in the City’s guidelines.

In these circumstances, respondents’ assertion that the project does not

comply with zoning standards with regard to traffic is an insufficient basis

for its denial of ministerial approval under section 65913.4.40

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court

with directions to grant the petition for writ of mandate.

Appellants shall recover their costs on appeal.

40Our conclusion that the City’s denial of appellants’ application for

ministerial approval failed to comply with section 65913.4 makes it

unnecessary for us to address respondents’ and CVL’s additional contention

that the City’s denial violated the HAA.

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Ruegg & Ellsworth et al. v. City of Berkeley et al. (A159218)

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Frank Roesch

Attorneys for Appellants: Reed Smith

Raymond A. Cardozo

Brian A. Sutherland

Holland & Knight

Jennifer L. Hernandez

Daniel R. Golub

Emily Martinez Lieban

Attorneys for Amicus Curiae

on behalf of Appellants: Matthew Gelfand

Attorneys for Respondents: Berkeley City Attorney’s Office

Farimah F. Brown

City Attorney

Christopher D. Jensen

Associate City Attorney

Burke, Williams & Sorensen

Kevin D. Siegel

Megan A. Burke

Deepa Sharma

Attorney for Interveners and Law Offices of Thomas N. Lippe

Respondents: Thomas N. Lippe

Attorneys for Amici Curiae

on behalf of Respondents and

Interveners and Respondents: Courtney Ann Coyle

Kaplan Kirsch & Rockwell

Matthew G. Adams

Sara A. Dutschke

Sharee Williamson, Pro hac vice

Attorneys for Amicus Curiae Colantuono Highsmith & Whatley

Michael G. Colantuono

Matthew T. Summers

Sharee Williamson, Pro hac vice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.