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State law significantly limits the City’s control over this project. State law provides that residential development projects are only required to comply with objective development standards that involve “no personal or subjective judgment by a public official.” This means that definite standards such as setbacks and open space are applicable, but standards that are subject to interpretation or personal opinion are not. Standards that include words such as “compatible,” “consistent,” “acceptable,” “livable,” and “character” can have different meanings for different people and cannot be applied to residential development projects due to State law. Further, the State’s Density Bonus Law compels cities to approve incentives or concessions for eligible projects, which typically include exceptions to objective development standards.
The State has established numerous penalties to discourage cities from violating housing statutes. Cities that deny a project in violation of the State’s housing laws can be sued by the Attorney General, the Department of Housing and Community Development, the project applicant, and housing advocates. In addition to paying their own legal fees, cities that lose or settle such lawsuits typically pay the legal fees of the entity that filed the lawsuit, which can result in millions of dollars of total litigation expenses.
Cities that deny a project in violation of the State’s housing laws also risk decertification of their General Plan Housing Element. When a Housing Element is decertified, there is a significant risk of additional lawsuits and further punitive actions by the State, which can include the following: