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In Yes In My Back Yard v. City of Culver City (2023) 96 Cal.App.5th 1103, the Second District Court of Appeal (“Court”) held that the City of Culver City (“City”) violated Government Code section 66300 (“Section 66300”)—a part of the Housing Crisis Act of 2019, also known as SB 330 (“SB 330”)—when it adopted an ordinance that, among other things, reduced the allowable floor area ratio (“FAR”) for primary residences in the City’s single-family residential zoning code.  The Court also determined the amount of attorneys’ fees awarded to the Plaintiffs, a pro-housing organization called Yes In My Back Yard and its executive director Sonja Trauss (collectively, “YIMBY”), was proper.

In July of 2020, the City adopted an ordinance that amended development standards in the City’s R-1, single-family residential zone.  Among the changes made were reductions in the overall allowable FAR for primary residences from 0.60 to 0.45, which reduced the amount of square footage that could be built on a lot by approximately “one extra bedroom.”  According to at least one member of the City Council, this reduction in FAR was targeted at primary homes because local governments were no longer able to count the square footage of accessory dwelling units (”ADUs”) in a lot’s FAR assessment, leading to further “mansionization” of lots in R-1 zones—a problem the City’s ordinance was intended to address.

At trial, YIMBY contended, and the trial court agreed, that the City’s FAR reduction impermissibly reduced the intensity of land use in violation of Section 66300, which generally disallows many local municipalities from downzoning the intensity of land use unless it concurrently upzones in another area to ensure no net loss of residential capacity.  After determining the City violated SB 330, the trial court awarded YIMBY attorneys’ fees of more than $130,000 under the private attorney general doctrine.  The City timely appealed both the trial court’s ruling on the merits as well as its award of attorneys’ fees to YIMBY.

Section 66300

Subdivision (b)(1)(A) of Section 66300 essentially voids any change to a general plan, specific plan, or zoning land use designation or ordinance that would reduce the intensity of land use below what was allowed on January 1, 2018.  For purposes of Section 66300, “‘reducing the intensity of land use’ includes reductions to height, density, or floor area ratio, new or increased open space or lot size requirements, new or increased setback requirements, minimum frontage requirements, or maximum lot coverage limitations, or any other action that would individually or cumulatively reduce the site’s residential development capacity.”

On appeal, the City argued that Section 66300 was ambiguous in its use of the terms “density” and “intensity,” and that the Legislature only intended the section to apply to zoning changes that would reduce the total number of residential units, not capacity.  The Court rejected these arguments noting that such an interpretation would be counter to the plain language of the statute and would essentially write out the statute’s references to reductions in height, FAR, and open space.  Further, the Court found that the statute’s express prohibition on reducing the intensity of land by reducing FAR was to be “broadly construed” in accordance with SB 330’s statutory instruction to generally maximize the development of housing in the state—not simply housing units.  The Court also found that the legislative history of SB 330 supported such an interpretation, noting that reduction in the intensity of land use could have direct impacts on a lot’s residential capacity, potentially adversely affecting multigenerational households by reducing the number of bedrooms in a home.  In response to the City’s contention that the ordinance fell within an exception to Section 66300, in part, because it would facilitate the development of housing for lower-income levels by encouraging the construction of ADUs, the Court found these arguments unavailing as the exceptions in Section 66300 were to be construed narrowly and the City’s contentions in this regard were unsupported.

Attorneys’ Fee Award

Citing the lack of consensus on what the state’s housing policy should be regarding single-family homes, the City argued that the trial court should not have awarded YIMBY attorneys’ fees under the private attorney general doctrine as they did not confer a benefit on a significant segment of the public as a result of their lawsuit.  The Court rejected this argument finding that it was reasonable for the trial court to conclude that YIMBY advanced the public’s interest by challenging an ordinance that reduced the intensity and residential capacity of land use—a “critical problem” that threatens the economic, environmental, and social quality of life in California.  Although the trial court did rely on the Legislature’s view of what housing policies would benefit the public, the Court determined that this reliance did not amount to an abuse of discretion.

The City also challenged the trial court’s lodestar and fees multiplier amount arguing that the trial court misapplied the factors that a court may consider in determining such sum.  For instance, the City argued that this case was not particularly novel, the court did not question YIMBY’s attorneys’ hourly rates and skill-level, and, finally, that the trial court was attempting to punish the City.  The Court rejected all such claims, noting that Section 66300 was novel and had never been litigated, that it was within the trial court’s discretion to determine attorney rates, noting that the trial court ended up applying a more modest multiplier of 1.25 to the lodestar than was initially requested by YIMBY (3.0).  Accordingly, the Court found that the trial court did not abuse its discretion in both awarding attorneys’ fees and determining the amount that was ultimately decided upon.

Key Points

  • Reducing the intensity of land use by, among other things, making reductions to height, density, or floor area ratio in an “affected” municipalities’ planning documents will (absent concurrent upzoning to ensure no net loss of residential capacity) violate Section 66300/SB 330.
  • Private parties that successfully enforce the provisions of Government Code section 66300/SB 330 may be entitled to an award of attorneys’ fees for enforcing an important right affecting the public interest.