"'-

--*-; .
..
PLANNING & ZONINGAPPEAL
GENERAL INFORMATION Date ofdecision being appealed:
12
/ 11 /2013
Who: AnyApplicantorpartywith standing mayappealan
administrative decision byPlanning staffora Planning &
Typeofdecision: Pleasecheckone
Zoning Commission action
When: A written appeal must befiled within 14calendardaysofthe
Administrative 0
administrativeorCommission action
Planning & Zoning Commission [iJ
Where:Appealsofadministrative decisions arefiledwiththe
MunicipalCodeorZoning
Community DevelopmentDepartment. AppealsofPlanning &
OrdinanceSection 0
Zoning Commission actions arefiled with theCity Clerk
Cost: $565.00(non-refundable)
Process: AppealsofPlanning Staffdecisionswill beconsidered
bythe Planning & Zoning Commission. AppealsofPlan-
Ifyou haveanyquestionsregarding this
ning & Zoning Commission decisions will beheardbefore
procedure, pleasecall the CityClerkat
theCity Council. For appealsofPlanning.& Zoning
(510)528-5720orPlanning Divisional
Commission decisionson itemsnotrequiring a Public
(510)528-5760.
Hearingl theappeal will besetforformal City Council
consideration within 30days. Foritemswhich required
a Public Hearing,the CityCouncil will
schedule a PublicHearingwithin 30daystoconsiderthe
.........
appeal.
...
1100San PabloAvenue (Senior Residential Development); 1080MonroeStreet(Retail Development)
ProjectAddress:
aod 1OZ5-1095 MooroeStreet (Betail Delielopmeot)
UniversityVillageMixed Use Project
Description ofProject:

Albany Housing AdvocatesandAmber
ApplicantName: UniversityofCalifornia AppellantName:
Whitsonc/oNaomiYoung
BelmontVillage
Address:
Oppidan/Portfolio
Address:
c/o NaomiYoung, BayArea Legal Aid
(SeeAttachmentA) (SeeAttachmentA).
Phone Number: Phone Number:
Basis ofAppeal: (Please be precise)AQQellants aQQeal the Planning&Zoning Commission'saQQroval ofTentative MaQs and
Design ReviewforaSeniorResidential DeveloQment (BelmontVillage)at1100San PabloAvenue and aretail develoQmentat
1075-1095MonroeStreet, Albany, CAon the groundsthatthe Commission'saQQrovals are inconsistentwith the Ci!y'sGeneral Plan.
The Ci!:i'sGeneral Plan is invalid because itlacksahousingelementthatsubstantiallycomplieswith statelaw. (SeeAttachment B).

Signature:
DateFiled:

l\)
IRece'd(}Y: C
Dote:
December 19,2013
Q IFee:
$ Sc.5'
IReceipt#:
I
AppealAgenda Date:
\../
P&Z
D
CityCouncil
D
J:/Forms/Planning/P&ZAppeaIForm.pub Revised 9/23/2013
X
APPEAL-ATTACHMENTA
AppealbyAppellantsAHAIWhitsonof PlanningandZoningCommissionDecisionon 12/11/l3
approvingTentativeMapsandDesignReviewforUniversityVillageMixedUseProject.
APPLICANT:
Owner: TheRegentsofUniversityofCalifornia
200A&EBuilding
Berkeley,CA 94720-l382
Telephone: (510)643-5314
ApplicantlRepresentative:
BelmontVillageAlbany,LLC(SeniorHousing)
5800ArmadaDrive, Suite200
Carlsbad,CA 92008
Contact: BrentCovey
Telephone: (760)931-1l34x 11
Oppidan/Portfolio(Retail)
c/oBKF,Consultant
4670WillowRoad,Suite250
Pleasanton,CA 94588-3323
Telephone: (925)396-7700
APPELLANTS:
AlbanyHousingAdvocates
AmberWhitson
c/o: NaomiYoung
BayAreaLegalAid
1735TelegraphAvenue
Oakland,CA 94612
Telephone: (510)663-4744
DavidLevin
BayAreaLegalAid
1025MacDonaldAve.
Richmond,CA 94801
Telephone:(510)233-9954
DeborahCollins
LaurenHansen
ThePublicInterestLawProject
449-15
th
Street,Suite301
Oakland,CA 94612
Telephone: (510) 891-9794x 156
IAttachmentA- Page 1of1
APPEAL - ATTACHMENT B
Appeal by Appellants AHAlWhitson of Planning and Zoning Commission Decision on 12111113
approving Tentative Maps and Design Review for University Village Mixed Use Project.
GROUNDS FOR APPEAL.
Summary of Appeal. Appellants Affordable Housing Advocates (AHA) and Amber Whitson
appeal the decision of the Planning and Zoning Commission ("Commission") on December 11,
2013 to approve Resolution Nos. 13-05, 13-06, 13-07, 13-08, 13-09, 13-10, and 13-11 approving
tentative maps, conditions, and design review of the University Village Mixed Use Project
(Project). See Commission Agenda for 12/11/13 Meeting, Agenda Item 4.A and attachments
thereto. The appeal is based on the grounds that the Commission's approval of the tentative
maps and design of improvements is inconsistent with the Albany General Plan.
Standing of Appellants. AHA is a non-profit corporation comprised of Albany residents,
including Ms. Whitson. AHA's mission is to encourage residents and officials to support the
need of all persons to have safe and secure housing, promote fair housing opportunities, and
ensure the City's compliance with fair housing and housing element requirements. Appellants
are parties to a housing element lawsuit against the City of Albany in which they allege that the
City failed to adopt a housing element for the current housing element planning period (2009-14)
as required by California Government Code 65580, 65583, 65588. See Petition for Writ of
Mandate and Complaint for Declaratory and Injunctive Relief filed October 2, 2013 in
Affordable Housing Advocates, et al. v. City ofAlbany, et at., Alameda County Superior Court,
Case No. RG13697761 (Exhibit A). The Commission's approval of the tentative maps and
design improvements for the Project impedes the City's ability to identify adequate sites to meet
its outstanding regional housing needs allocation, thereby preventing it from bringing its housing
element into compliance with state law and depriving AHA and Ms. Whitson of relief requested
in their petition. AHA and Ms. Whitson also are beneficially interested in ensuring that the City
complies with state land use and planning laws, including that all land use actions are consistent
with Albany's General Plan.
Factual Background. Albany does not have a valid housing element. It last adopted a housing
element in 1992. See Albany General Plan, adopted December 7, 1992, at p. 49 [Housing
Element] (available at http://www.albanyca.org/index.aspx?page=439). That housing element has
not been regularly updated as required by Govt. C. 65588 and does not substantially comply
with current housing element law which has changed significantly since 1992. See Govt. C.
65580 et seq. The most recent housing element revision was required to be completed by June
30,2009. See HCD Revision Update Schedule, Revision 4 (Exhibit B). The City did not submit
a draft housing element to the Department of Housing and Community Development (HCD) for
review until on or about October 25, 2013. See Transmittal Letter to HCD dated October 25,
2013 (Exhibit C). HCD has not completed its review of the draft element, and City staff
recognizes that additional revisions will be required by HCD before a final element can be
adopted by the City Council. See HCD Review Status Report (Exhibit D); Staff Report,
Planning and Zoning Commission, September 25, 2013 (Exhibit E). Because the City lacks a
housing element that substantially complies with state law, its General Plan was invalid on
December 11,2013.
Attachment B - Page 1
The Commission nonetheless approved tentative maps and design improvements for a market-
rate senior residential development at 1100 San Pablo Avenue and retail developments at 1075-
1095 Momoe Street and 1080 Momoe Street on December 11, 2013. (Minutes of the
Commission's meeting are not yet available.) It also made findings that the tentative maps and
design of improvements for the Project are consistent with the General Plan. See Resolutions
2013-05 at p. 3, ,-rl; 2013-06, p. 3, ,-rl; 2013-07, p.3, ,-rl; 2013-08, p. 3, ,-rA.1: 2013-09, p. 4, ,-rA.l;
2013-10 at p. 4, ,-rA.1.!
Analysis. As a matter of law, the Commission was precluded from making consistency findings
in the absence of a valid General Plan. A City's General Plan is its constitution for development,
and all subsequent land use actions must be consistent with the General Plan. See De Vita v.
County ofNapa, 9 Ca1.4th 763, 772 (1971); Lesher Communications, Inc. v. City of Walnut Creek,
52 Ca1.3d531-540 (1990). Consistency with the General Plan is required for approval of a
tentative map. Woodland Hills Residents Assn., Inc. v. City Council, 44 Cal.App.3d 825 (1975).
A General Plan must contain seven mandatory elements, including a housing element. Govt. C.
65302. The housing element must include, among other things, an analysis of the jurisdiction's
current and projected housing needs, including its fair share of regional housing needs and the
housing needs of special populations. Govt. C. 65583(a), 65584. It also must contain a land
inventory and identify adequate sites to provide for the housing needs of persons at all income
levels. Govt. C. 65583(a)(3). If its inventory of sites does not identity sufficient sites to
accommodate the housing needs for all income levels, it must accommodate the remaining need
by rezoning additional sites within specified time frames. Govt. C. 65583(c)(1)(A), 65583(f);
see also 65584.09. Unlike other elements of the General Plan, the housing element must be
updated on a regular basis pursuant to a schedule imposed by the Legislature. Govt. C. 65588.
By failing to update its housing element since 1992, Albany has failed to comply with housing
element laws. As a result, it lacks a valid housing element.
Without a valid housing element, the General Plan lacks a mandatory element, rendering the
General Plan invalid. Resource Defense Fund v. County ofSanta Cruz, 133 Cal.App.3d 800, 806
(1982). Because the General Plan is invalid, the Commission's approval of tentative maps and
design of improvements regarding the University Village site were inconsistent per se with the
General Plan. Lesher, 52 Ca1.3d 531; Citizens of Goleta v. Bd. Of Supervisors, 52 Ca1.3d 553
(1990); Neighborhood Action Group v. County ofCalaveras, 156 Cal.App.3d 1176 (1984).
The City should set aside the Commission's approval of the tentative maps and postpone any
further action on the University Village site until it demonstrates in a valid housing element that
it can accommodate its outstanding regional housing needs on other sites.
2
Albany was assigned
a regional housing need (RHNA) of 277 units for the 1999-2006 planning period. Draft Housing
Element October 2013 (Exhibit F) at p. 2-1. Its RHNA for the current planning period is 276
1 Resolution 2013-11, approving "special fmdings" in support of design review applications for the Project, omits a
fmding that the action is consistent with the General Plan. !d. at pp. 2-6.
2 When a City fails to adopt a valid housing element, a court may suspend its land use powers, including for
example, suspending its authority to issue building permits, grant zoning changes or variances, approve subdivision
maps, or otherwise approve any construction or development, except housing units affordable to very low and low-
income households. See Govt. C. 65755.
Attachment B - Page 2
units. Id. pp. 1-3 - 1-4. Because the City did not identify adequate sites to accommodate its
RHNA for the prior planning period, the total RHNA that must be accommodated during the
current planning period is 553 units. See Govt. C. 65584.09. The inventory orsites in the Draft
Housing Element reflects that the City can accommodate, at best only 147 residential units.
Draft Housing Element at 4-5; Tables 4-3, 4-4, and 4-5. Although the University Village site is
identified in the draft element as one of very few vacant sites remaining in Albany, the City
concludes that this site is not available or needed to meet its outstanding RHNA. See Draft
Housing Element at Table 4-4, p. 4-12. Appellants disagree. The University Village site may
well be needed to accommodate the City's longstanding regional housing needs.
Appellants urge the City Council to set aside the Commission's approval of the tentative maps,
conditions, and design of improvements for the Project as inconsistent per se with the General
Plan. See Lesher at 544.
Attachment B - Page 3
EXHIBITS Attached:
EXHIBIT A: Petition/Complaint in AHA et al. v. City ofAlbany, filed 10-2-13
EXHIBIT B: HCD Schedule of Fourth Revisions
EXHIBIT C: Transmittal Letter to HCD, dated 10-25-13
EXHIBIT D: HCD Current Review Status
EXHIBIT E: Staff Report to Planning and Zoning Commission, dated 9-25-13
EXHIBIT F: Draft Housing Element (October 2013)
Attachment B - Page 4