In United Neighborhoods for Los Angeles v. City of Los Angeles, et al. (2023) 93 Cal.App.5th 1074, the Second District Court of Appeal affirmed a trial court’s grant of a writ of mandate halting a project in Hollywood that would replace 40 rent-stabilized apartments with a hotel. The City of Los Angeles determined that the hotel project was exempt from CEQA under the “in-fill” or “Class 32” exemption. The Court invalidated this exemption determination because that the City did not consider the Project’s consistency with all applicable general plan policies, as the in-fill exemption requires. (See CEQA Guidelines, § 15332(a).)  

Real party in interest and property owner Whitley Apartments proposed to demolish an apartment complex with 40 rent-stabilized units and construct a 156-room hotel in its place. The Los Angeles Department of City Planning reviewed the project, approved the site plan review, and determined that the in-fill exemption applied. The Department did not address the project’s consistency with the Housing Element of the City’s General Plan, only the Framework Element. United Neighborhoods for Los Angeles (“Petitioner”) unsuccessfully appealed the Project approval to both the Central Area Planning Commission and the City Council. Petitioner then sought a writ of mandate challenging the Project, claiming that the in-fill exemption did not apply because the Project was inconsistent with the Housing Element’s policy regarding preservation of affordable housing.  

The City argued that the Housing Element did not apply to the Project because it was a hotel, rather than housing, project. The City also argued that the City Council had made an “implied finding” that the Housing Element did not apply to the Project and that the trial court did not apply appropriate deference to the City’s determination. The Court of Appeal rejected each argument in turn. 

The court rejected the City’s arguments that (1) because the project did not propose housing, it did not implicate housing policy, and (2) rent-stabilized housing did not qualify as “affordable housing” as the term is used in the Housing Element. The court found that the Housing Element policies and programs emphasized the importance of preservation of housing. A project that does not propose the production of new housing may nevertheless impact the preservation of housing. The court found that the City should have considered whether the proposed project was consistent with the Housing Element policies to preserve housing. The Court addressed the City’s second argument that rent-stabilized housing was not “affordable housing” by finding that “affordable housing” was not a term of art in general plan and should therefore be given its ordinary meaning. The court found that rent stabilized units are a form of “affordable housing” because they prohibit landlords from raising rents under certain circumstances.

Finally, the court acknowledged that, though its review of consistency findings was deferential, that standard did not relieve the City of its obligation to consider the Project’s consistency with Housing Element policies in the first instance. Generally, courts give agencies deference in balancing competing priorities in complex General Plan documents, but here “the issue was not ‘how the City exercised its discretion and balanced competing policies and concerns,’ but ‘whether the City even considered the … Housing Element and how those policies might be balanced against other General Plan policies.’” Although an agency need not make an express consistency finding, there must be some indication that the agency actually considered applicable policies.

This case holds that the deferential standard usually applied to general plan consistency determinations is only available if the record demonstrates that the agency actually considered and balanced all applicable policies. To ensure application of the deferential standard of review, it may be prudent, although not required, for local agencies to make express findings. And local agencies should be sure to include proper documentation and evidentiary support for such findings in the administrative record.