Last month we were supposed to have our first hearing in our San Mateo lawsuit, however, the judge ordered it be rescheduled to October 24th to allow for further briefing on some fairly heavy issues. Here’s what the court sent us:


The court is asking both us and the city to expand on the following questions of law:

  • What, exactly, is the correct burden of proof in an HAA lawsuit?
  • Does the HAA preclude the use of any and all discretionary guidelines?
  • Is the appropriate remedy a re-hearing, which allows the city to reconsider their incorrect decision (and in turn, produce more evidence for a lawful denial), or should the court simply order the project approved as-is?

Without going too deep into our as-of-yet-unsubmitted responses, it seems that these questions are hinting at something fundamental in American land use law: Should we give deference to a city’s own interpretation of its rules? There’s already a name for this doctrine, Judicial Deference. You may have heard of a Supreme Court case from earlier this year that touched on one aspect of deference: Kisor v. Wilkie.

CaRLA v. San Mateo is not about Kisor v. Wilkie, which addressed a specific form of deference to federal administrative agencies’ interpretations of its own rules when they’re vague. Auer deference, if you’re so inclined to google it. Judicial Deference has a long and storied history, but we’ll give a summary here.

It starts with Bowles v. Seminole Rock & Sand Co., a Supreme Court case from 1945. Here, the court found that a federal court must defer to an administrative agency’s interpretation of a regulation that the agency administers. For example, if HUD issued a new regulation regarding Section 8 vouchers and that regulation was sufficiently vague that it lead to a court challenge, a federal judge would simply ask HUD what their interpretation is. The exception is if their interpretation is “plainly erroneous or inconsistent with the regulation”.

However, try as they might, California city governments are not federal agencies. They are subdivisions of the State of California. It’s in the state constitution and everything. We checked.

To rephrase the court’s underlying question: When the HAA asks for substantial evidence of compliance with a city’s standards, should the courts weigh the city’s evidence higher than the petitioner’s?

I’m quite certain you know our position here.