JMBM Development Rights: Superior Court Rules in Favor of JMBM Client in Density Bonus Case

Recently, JMBM lawyers successfully challenged an attempt by the City of Los Angeles to unlawfully impose conditions of approval on a proposed infill apartment project that was entitled to a height increase under SB 1818, the state density bonus law. The case involved the request by JMBM’s client Louise Apts. LLC to increase the height limit on its 25-unit apartment project in West Los Angeles from 45 feet to 50 feet to better accommodate the project and, in doing so, add two affordable apartment homes. This request was also in line with Los Angeles City regulations aimed at encouraging developers to build more affordable housing in urban areas.

The court found that despite a clear mandate under Government Code section 65915 (d) (1) to allow the height limit increase in return for the building of additional affordable units, the Planning Commission refused to approve the request unless JMBM’s client was prepared to change the design of its project by stepping back the structure on all sides beginning at the 20-foot mark. This requirement would have significantly reduced the rentable space in the apartment building, rendering the project infeasible. “The effect of such a requirement is to nullify the density bonus by decreasing the amount of rentable space in the development,” the court said. The court further noted that the Planning Commission had no choice but to grant the application for an increase in height limit unless it could show that such an action would have a negative impact upon health or safety, or the physical environment, which is the legal standard in SB 1818. A finding of this type would need to be based upon “objective, indentified written public health or safety standards, policies and conditions as they existed on the date the application was deemed complete.” The Planning Commission attempted to prove that increasing the height of the project would have a negative impact on the environment by citing Los Angeles’ CEQA Thresholds Guide. The court found there was no record to indicate that the Planning Commission ever relied upon or even considered the Threshold Guide when deciding to deny Louise Apts. LLC’s application. In addition, the court found that the company’s project was specifically exempt from CEQA because it “satisfies all the requirements of CEQA Guideline 15332 for in-fill development projects.” In finding for JMBM’s client and directing the Planning Commission to allow the increase in height without any other conditions, the court stated that “the action taken by the Planning Commission is arbitrary, capricious and is not justified by any evidence. It is an abuse of discretion because it constitutes a refusal to comply with the literal wording and the legislative intent of Government Code section 65915 (d) (1).”

Louise Apts. LLC v. City of Los Angeles is the first successful lawsuit of its kind against the City of Los Angeles. It also shows that SB 1818 limits local government discretion to impose additional conditions on projects that are entitled to development incentives.

Benjamin M. Reznik is based in the Firm’s Los Angeles office and is Chairman of the Government, Land Use, Environment & Energy Department at Jeffer, Mangels, Butler & Marmaro LLP. Mr. Reznik’s practice emphasizes real estate development entitlements, zoning and environmental issues, including frequent appearances before city planning commissions, city councils and other governmental boards and agencies on behalf of real estate development firms. For more information, please contact Ben at 310.201.3572 or BMR@JMBM.com.