This Thursday is the court hearing for our case against the City of San Mateo, but what is at stake? Housing, of course, but we’re not just here to get housing built project-by-project. We’re here to restore a legal environment in which California builds housing equal to its needs through public impact litigation. We hope to establish new law in this case, and by popular request I want to walk you through our brief:

At the heart of this case are two questions of law: when do design guidelines become objective requirements, and what kind of evidence must a city bring forth to demonstrate an alleged zoning inconsistency?

Design Guidelines

The city’s multi-family residential design guidelines are just that: guidelines. Of course, the city disagrees with this assertion and insists that they are mandatory standards that must be followed.

4 W. Santa Inez is zoned R-4, which the project complies with. The definition of the R-4 zone lives in the city’s municipal code at chapter 27.24; this section of the law is full of objective standards such as unit density, setbacks, minimum parking and the like. The multi-family guidelines live in a PDF on the city’s website and are full of subjective standards. The relevant one here is on page 7:

Height. Most multi family neighborhoods in San Mateo are 1 to 4 stories in height. When the changes in height are gradual, the scale is compatible and visually interesting. If height varies by more than 1 story between buildings, a transition or step in height is necessary. Any portion of a building constructed taller than surrounding structures should have the taller section built to a width that acknowledges the traditional building width pattern of the City — generally 30 to 50 feet in width.

Design Objectives:
• Avoid changes in building height greater than one story from adjacent structures. If changes are greater, stepback upper floors to ease the transition.
• Construct taller portions of buildings at traditional building widths, generally 30 to 50 feet wide.

Thats it! Thats all it says. It doesn’t define what a transition looks like, nor does it describe what to do when buildings are not immediately adjacent.

But this is only tangential to the question of whether or not these guidelines are required to be followed. Going back to the city’s R-4 zoning regulations, you can’t find a mention of the design guidelines anywhere in the code. The city’s brief, however, does cite a mysterious Resolution No. 1994-127 which you’ll not find on the internet. You’ll need to call them up and ask for a copy of it, which is not a thing any reasonable person should need to do or know about when following the city’s zoning ordinance.

The city has approved many projects without requiring complete compliance with these guidelines, and in fact, further along in Resolution 1994-127 is a statement that the city may approve projects that do not comply with the guidelines. And all of that is long after you figure out the difference between a resolution and an ordinance. Hint: ordinances have the power and effect of law, resolutions don’t.

In short, there is no requirement to comply with the guidelines and even if that were true, the guidelines are not objective standards. Even if they were objective standards, the city is relying on a decidedly subjective guideline about height.

The “Substantial Evidence” Standard

Putting the guidelines aside, the city does have another argument: parking. I know, you’re shocked that this is the hill they’ll be dying on. I’ll give you a moment to steady yourself.

Not shook? Click here.

The exact details about the parking don’t matter. The city argues that some of the measurements in the project’s mechanical parking lifts are of a different size than the city’s non-mechanical parking stall requirements, but they didn’t bring that up at all until we sued them. What actually matters in this case is the fact that they didn’t bring it up until we sued them.

When the Housing Accountability Act was amended in 2016, it changed the standard of evidence required to prove zoning compliance to be “Substantial Evidence”. For those of us who don’t sleep with a copy of Black’s Law Dictionary under the pillow, here’s the definition:

Evidence that a reasonable mind could accept as adequate to support a conclusion.

This is slightly more than a mere Preponderance of the Evidence or even Clear and Convincing Evidence standard, which require showing a fact is “more likely to have occurred than not” or “substantially more likely than not to be true”, respectively. Substantial Evidence means you could go ask a random person on the street (maybe a larger sample size than 1, just to be sure) if a body of evidence supports your conclusion.

Many months ago, long before this lawsuit started, city staff determined that 4 W. Santa Inez is compliant with the city’s zoning ordinance. They spoke at length about its compliance in the staff report, in staff testimony, at public hearings, all over the administrative record. The planning commission even voted in agreement. A lot of people looked at this thing and said “Yup, that looks compliant”. A lot of reasonably-minded people.

As you would expect, the city disagrees. They are arguing that just because city staff said it was compliant, and that the planning commission voted to say it was compliant, and the city council said themselves on the dais that it was compliant, and the city attorney reiterated the project’s compliance, that doesn’t mean it is compliant.

The law is very clear on this point. The only proof of compliance you need is enough to convince a reasonable non-lawyer person that the project is compliant. In the absence of contradictory statements from the city, it is hard to argue that this project is not compliant. Further, the way the Housing Accountability Act works is that you’re not allowed to bring up new evidence at trial. You can’t deny a project for an unlawful reason then go back to the judge with something you only found after you got sued.

The city is arguing that they can. Their argument is that city council is the only true arbiter of what is and isn’t zoning compliant. Thats fine and all, but in order for that to be effective, the city council must exercise that authority when denying a project. Here, they did not. When the city council voted to deny 4 W. Santa Inez, they did not talk about parking. They did not make any legal findings about parking.

It is only now, in the throes of this lawsuit, do they bring up parking regulations. Again, the law is very clear on this point: if you’re going to lawfully deny a housing project, you must deny it with legal findings explaining how it is incompatible with the zoning, and you cannot introduce new evidence at trial.

There is substantial evidence in the administrative record that supports the city’s original determination of zoning compliance. There is not substantial evidence that would support another decision. The city can yell about parking engineering diagrams and “incorrect opinions” until they’re blue in their collective face, but the law plainly bars such procedural temper tantrums from denying the housing California so desperately needs.