CC SR 20260303 02 - Urgency Ordinance MUOD and ROD Amendments
CITY COUNCIL MEETING DATE: 03/03/2026
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA TITLE:
Consider amending Rancho Palos Verdes Municipal Code (RPVMC) Chapter 17.47
Mixed Use Overlay District (MUOD) and Chapter 17.48 Residential Overlay District
(ROD)
RECOMMENDED COUNCIL ACTION:
(1) Adopt Urgency Ordinance No. U, an urgency ordinance of the City Council of
the City of Rancho Palos Verdes, California, amending Chapter 17.47 (Mixed
Use Overlay District (MUOD)) and Chapter 17.48 (Residential Overlay District
(ROD)) of Title 17 (Zoning) of the Rancho Palos Verdes Munic ipal Code to
continue to effectuate the 2021-2029 Housing Element thereby requiring that
new development and additions must allow 100 percent residential use,
residential use occupy at least 50 percent of the total floor area of a mixed -use
project, and the overlay is applicable to all new development projects in these
overlay districts; and
(2) Initiate regular Code Amendment proceedings to the Zoning Code (Title 17 of
RPVMC) thereby having the Planning Commission, in an advisory role, make
recommendations to the City Council on proposed text amendments to Chapter
17.47 Mixed Use Overlay District (MUOD) and Chapter 17.48 Residential
Overlay District (ROD) to require that any new development or additions in these
districts must allow 100 percent residential use and require that residential use
occupy at least 50 percent of the total floor area of a mixed -use project, and will
also require that the overlay is applicable to all new development projects in
these overlay districts.
FISCAL IMPACT: There is no fiscal impact, aside from staff time which is borne by the
Fiscal Year 2025-26 Budget for personnel costs, for processing the recommended code
amendments to the Zoning Ordinance (Chapter 17) of the RPVMC.
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Brandy Forbes, AICP, Director of Community Development
REVIEWED BY: Catherine Jun, Deputy City Manager CJ
APPROVED BY: Ara Mihranian, AICP, City Manager
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ATTACHED SUPPORTING DOCUMENTS:
A. Proposed Urgency Ordinance No. U, with Proposed Amendments as Exhibit
A (page A-1)
B. California Department of Housing and Community Development (HCD) Letter to
City of RPV Confirming Compliance June 12, 2024 (page B-1)
C. Second Appellate District opinion in New Commune DTLA LLC v. City of
Redondo Beach, October 10, 2025 (page C-1)
BACKGROUND:
On April 16, 2024, the City of Rancho Palos Verdes (“City”) adopted its 6th Cycle Housing
Element and implementing zoning ordinances, with subsequent amendments to the
zoning ordinances adopted on June 4, 2024, which were confirmed by HCD’s letter dated
June 12, 2024 (Attachment B) to be in compliance with State Housing Element Law. The
implementing zoning ordinances included mixed -use overlay and residential overlay
districts.
On October 10, 2025, the Second Appellate District of the California Court of Appeal
issued its opinion in New Commune DTLA LLC v. City of Redondo Beach related to the
use of mixed-use overlay zoning to meet the Government Code Section 65583.2(h).
Specifically, the ruling references that at least 50 percent of the lower income housing in
the Housing Element is required to be “accommodated on sites designated for residential
use and for which nonresidential uses or mixed uses are not permitted.” (§ 65583.2(h )(2).)
There is an exception to this rule for certain mixed-use sites: subdivision (h)(2) allows a
local government to “accommodate all of the lower income housing need on sites
designated for mixed use if those sites allow 100 percent residential use and require that
residential use occupy 50 percent of the total floor area of a mixed-use project.”
To address rulings of the appellate court decision as the same impacts the City’s Zoning
Ordinance, Staff recommend that the City Council amend the implementing zoning of
RPVMC Chapter 17.47 Mixed Use Overlay District (MUOD) and Chapter 17.48
Residential Overlay District (ROD) to address the specific issues addressed in the
appellate court ruling and to bring the same into compliance with the court’s decision .
DISCUSSION:
The City, in good faith, relied upon the determination by HCD, dated June 12, 2024,
finding the City’s implementing ordinance fully complied with State Housing Element Law.
The City’s implementing zoning ordinances included mixed-use overlay districts.
On October 10, 2025, the California Court of Appeal, Second Appellate District, issued
its opinion in New Commune DTLA LLC v. City of Redondo Beach, reversing the trial
court’s denial of a petition for writ of mandate under Code of Civil Procedure section 1085
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filed by New Commune DTLA LLC (“New Commune”). New Commune sought to
invalidate the City of Redondo Beach’s 2021 –2029 Housing Element, which the City
adopted in October 2021 to comply with the California housing element Law (Gov. Code,
§§ 65580–65589.11).
New Commune asserted that the City’s housing element was deficient because its
reliance on a residential overlay allowing multifamily housing on parcels zoned for
commercial and industrial uses violated Government Code §65583.2, subdivision (h)(2).
Specifically, New Commune argued that since the underlying zoning still permitted
exclusively commercial or industrial projects with no residential component, the overlay
failed to meet the statute’s minimum density and residential-use requirements.
The court agreed with petitioners New Commune and held that “[a]n overlay cannot be
used to satisfy the minimum density and residential use requirements set out in section
65583.2, subdivision (h)(2) . . . where the base zoning expressly permits developmen t
that does not include housing.”
The appellate court rejected the City of Redondo Beach’s argument that HCD’s prior
approval of the City’s housing element insulated the City from judicial review. The court
reaffirmed that HCD’s certification does not override clear statutory violations or confer
immunity from compliance with Government Code § 65583.2. Local governments
therefore remain independently responsible for ensuring that their housing elements and
implementing zoning ordinances conform to state law, regardless of HCD’s prior approval.
Although the City of Redondo Beach petitioned the California State Supreme Court to
consider this case, the petition was denied on January 29, 2026. Therefore, the appellate
court’s ruling stands, which remands the case to the lower court.
With the New Commune DTLA LLC v. City of Redondo Beach ruling, City Staff evaluated
the Rancho Palos Verdes’ implementing ordinances and drafted clarifying language to
address the appellate court’s specific determination regarding mixed use overlay districts.
As approved by HCD, RPVMC Chapter 17.47 Mixed Use Overlay District (MUOD)
currently only requires a minimum of 25 percent of the total gross floor area in a MUOD
project to be residential, and RPVMC Chapter 17.48 Residential Overlay District (ROD)
does not have a set minimum requirement. Although the Purpose section of each Chapter
states that the projects could be residential-only, there is not a specific statement that the
districts allow 100 percent residential use.
The proposed text amendments would require that any new development or additions in
these districts must allow 100 percent residential use and require that residential use
occupy at least 50 percent of the total floor area of a mixed -use project. The regulations
will also require that the overlay is applicable to all new development projects in these
overlay districts.
The substantive amendments to Chapter 17.47 MUOD are as follows (added text are
underlined, deleted text are strikethrough).
• 17.47.020. Applicability Sections A, B, and C:
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A. Applicable parcels. The MUOD is an overlay district applicable to parcels
with an underlying nonresidential base district designation. The MUOD shall
only apply to the parcels identified in the mixed-use overlay district map on
file with the community development department. Any new development or
projects that are an addition by increasing the square footage to an existing
development on property within this overlay district shall comply with the
provisions of this chapter.
B. Relationship to the underlaying base district. The provisions of the
underlying base district shall continue to apply to existing uses and
development on a property unless specifically superseded by a MUOD
project when a property owner chooses to exercise; however any new
development or projects that are an addition by increasing the square
footage to an existing development on a property within this overlay district
shall comply with the provisions of this chapter.
C. Relationship to overlay control districts. If applicable, the objective
provisions of any overlay control district shall continue to apply to a property
unless specifically superseded by a MUOD project when a property owner
chooses to exercise initiates provisions of this chapter. In the event that the
provisions of any overlay control district are in conflict with provisions of this
chapter, this chapter shall govern.
• 17.47.040. Development standards, Section (A)(1), Subsections b and c:
b. For all new development or projects that are an
addition by increasing the square footage to an existing development in
a MUOD overlay projects, a minimum of 25 50 percent of the total gross
floor area for the proposed new mixed-use project or addition shall be
dedicated to residential uses.
c. A project in the MUOD may have up to 100 percent residential
use of the total floor area of a project.
The substantive amendments to Chapter 17.48 ROD are as follows (added text are
underlined, deleted text are strikethrough).
• 17.48.020. Applicability Sections A, B, and C:
A. Applicable parcels. The ROD is an overlay district applicable to
parcels with an institutional underlying base district designation. The ROD
shall only apply to the parcels identified in the residential overlay district
map on file with the community development department. Any new
development or projects that are an addition by increasing the square
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footage to an existing development on property within this overlay district
shall comply with the provisions of this chapter.
B. Relationship to the underlaying base district. The provisions of the
underlying base district shall continue to apply to existing uses and
development on a property unless specifically superseded by a ROD
project when a property owner chooses to exercise; however any new
development or projects that are an addition by increasing the square
footage to an existing development on a property within this overlay
district shall comply with the provisions of this chapter.
C. Relationship to overlay control districts. If applicable, the objective
provisions of any overlay control districts shall continue to apply to a
property unless specifically superseded by a ROD project when a property
owner chooses to exercise initiates provisions of this chapter. In the event
that the provisions of any overlay control district are in conflict
with provisions of this chapter, this chapter shall govern.
• 17.48.040. Development standards, Section (A)(1), Subsections c and d:
c. For all new development or projects that
are an addition by increasing the square footage to an existing
development in a ROD overlay, a minimum of 50 percent of the total gross
floor area for the proposed new mixed-use project or addition shall be
dedicated to residential uses.
d. A project in the ROD may have up to 100 percent residential
use of the total floor area of a project.
There are additional amendments in the urgency ordinance that are cleanup
wordsmithing items that are not substantive. Those are provided under Exhibit A to the
urgency ordinance (Attachment A).
In order to comply with the holding in the New Commune DTLA LLC v. City of Redondo
Beach ruling, Staff recommend adoption of an urgency ordinance (Attachment A), which
would become effective immediately (requiring a 4/5ths vote), to be followed by a non -
urgency ordinance. The process for adoption of the non-urgency ordinance includes a
public hearing of the Planning Commission in an advisory capacity to review for
consistency with the General Plan and provide recommendations to the City Council.
The City Council will then conduct a public hearing to consider introducing the ordinance,
as recommended by the Planning Commission, and if acceptable a subsequent second
reading and adoption by City Council. The non-urgency ordinance becomes effective 30
days following adoption. It is anticipated that the proposed ordinance under the regular
process will be returned to the City Council in April or May of this year.
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CONCLUSION:
Staff recommend that the City Council adopt the attached Urgency Ordinance
(Attachment A) and initiate regular ordinance amendments to RPVMC Chapter 17.47
Mixed Use Overlay District (MUOD) and RPVMC Chapter 17.48 Residential Overlay
District (ROD) to address the specific issues addressed in the appellate court ruling.
There are additional amendments that are cleanup items that are not substantive , such
as formatting, typographical, and clarifications.
ALTERNATIVES:
In addition to Staff’s recommendation, the following alternative actions are available for
the City Council’s consideration:
1. Take no action and proceed to receive and file this report. The current MUOD and
ROD regulations would remain in effect.
2. Revise the proposed amendments and adopt those revisions and initiate code
amendments by regular ordinance accordingly.
3. Take no action on the urgency ordinance and initiate code amendments by regular
ordinance only. This alternative would delay the implementation until after the
process of the Planning Commission public hearing, City Council public hearing
and introduction, City Council adoption, and a 30 day period following adoption.
4. Continue the item to a date certain to provide more information as requested by
the City Council.
5. Take other action, as deemed appropriate.
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ORDINANCE NO. ___U
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF RANCHO PALOS VERDES, CALIFORNIA,
AMENDING CHAPTER 17.47 (MIXED USE OVERLAY
DISTRICT (MUOD)) AND CHAPTER 17.48 (RESIDENTIAL
OVERLAY DISTRICT (ROD)) OF TITLE 17 (ZONING) OF
THE RANCHO PALOS VERDES MUNICIPAL CODE TO
CONTINUE TO EFFECTUATE THE 2021-2029 HOUSING
ELEMENT THEREBY REQUIRING THAT NEW
DEVELOPMENT AND ADDITIONS MUST ALLOW 100
PERCENT RESIDENTIAL USE, RESIDENTIAL USE
OCCUPY AT LEAST 50 PERCENT OF THE TOTAL FLOOR
AREA OF A MIXED-USE PROJECT, AND THE OVERLAY IS
APPLICABLE TO ALL NEW DEVELOPMENT PROJECTS
IN THESE OVERLAY DISTRICTS
WHEREAS, the City of Rancho Palos Verdes was required by State Housing law
to update the Housing Element of its General Plan for the 2021 -2029 planning period (6th
Cycle) to include policies, strategies, and actions to facilitate the construction of new
housing and preservation of existing housing to meet the needs of the City’s population
during the 6th Cycle period, as well as to accommodate the City’s Regional Housing
Needs Assessment (RHNA) allocation for new housing units in various income categories
throughout the City; and
WHEREAS, to effectuate the Housing Element by implementing zoning revisions
that will accommodate the capacity for the housing as proposed in the Housing Element
Update to meet the City’s RHNA obligation, City staff prepared amendments to the
General Plan Land Use Element, Local Coastal Program (Coastal Specific Plan), Zoning
Code, Zoning Map, and Development Standards for Accessory Dwelling Units (ADUs)
and Junior Accessory Dwelling Units (JADUs); and
WHEREAS, on April 16, 2024, the City Council adopted Resolution No. 2024 -16
that adopted the City’s Housing Element for the 2021-2029 housing cycle and amended
the City’s General Plan and Local Coastal Plan to ensure consistency with the Housing
Element and adopted Urgency Ordinance No. 678U, which amended the City’s Zoning
Code to, among other items, add Chapter 17.47 “Mixed Use Overlay District” (MUOD)
and add Chapter 17.48 “Residential Overlay District” (ROD) to accommodate the housing
capacity as proposed in the Housing Element Update to meet the City’s RHNA obligation;
and
WHEREAS, on June 18, 2024 the City Council adopted Ordinance No. 681, which
among other items, adopted the MUOD and ROD again utilizing the regular process for
amending the City’s zoning code; and
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WHEREAS, on October 10, 2025, the California Court of Appeal, Second Appellate
District, issued its opinion in New Commune DTLA LLC v. City of Redondo Beach (2025)
115 Cal.App.5th 111 (“New Commune Decision”) in which it held that “[a]n overlay cannot
be used to satisfy the minimum density and residential use requirements set out in
Government Code section 65583.2, subdivision (h)(2) . . . where the base zoning
expressly permits development that does not include housing” and a mixed-use overlay
zone cannot qualify for the mixed-use exception set forth in Government Code, section
65583.2(h)(2) for providing lower income housing needs if the mixed -use overlay zone
does not allow 100 percent residential use and require that residential use occupy 50
percent of the total floor area of a mixed-use project; and
WHEREAS, on January 28, 2026 the California Supreme Court denied
Respondent City of Redondo Beach’s Petition for Review to the Supreme Court and
request for depublication of the decision; and,
WHEREAS, the City Council seeks to ensure that MUOD and ROD effectuate the
City’s 6th Cycle 2021-2029 Housing Element immediately, in light of the New Commune
Decision by amending the MUOD and ROD to ensure that the MUOD and ROD comply
with Government Code section 65583.2(h) and that the City’s 2021-2029 Housing
Element continues to substantially comply with the State’s laws governing housing
elements; and
WHEREAS, pursuant to Government Code § 36937, subdivision (b), any
ordinance for the immediate preservation of the public peace, health, or safety, containing
a declaration of the facts constituting the urgency, that is passed by a four-fifths (4/5) vote
of the City Council, shall take effect immediately upon its adoption; and
WHEREAS, the City Council seeks and intends to protect the health, safety, and
welfare of the residents of the City of Rancho Palos Verdes by adopting the proposed
amendments to the MUOD and ROD to continue to effectuate the City’s 2021 -2029
Housing Element, as further described herein.
NOW THEREFORE, the City Council of the City of Rancho Palos Verdes does
hereby ordain as follows:
Section 1. Recitals. The above recitals are incorporated herein by this reference.
Section 2. Urgency Findings.
A. Government Code § 65580 provides, “[t]he availability of housing is of vital
statewide importance, and the early attainment of decent housing and a suitable living
environment for every Californian, including farmworkers, is a priority of the highest
order.” California is experiencing a housing supply crisis, with housing demand far
outstripping supply. In 2018, California ranked 49th out of the 50 states in housing per
capita. This lack of housing supply in California has led to dramatically increasing housing
costs across the State.
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B. Home prices in the City of Rancho Palos Verde are significantly higher than
those in most surrounding communities, with the average home value as of February
2024 for the single family homes listed was $1,909,216, according to Zillow Research
Data. As of April 9, 2024, only 49 properties were listed for rent in the City on Zillow, with
21 of those being apartments and townhomes ranging in rent from $1,750/month to
$5,750/month. Single-family homes (28 properties) were being offered for rent from
between $4,350/month and $18,000/month. In addition, land, environmental, and
infrastructure constraints combine to keep land prices high, and housing growth has not
occurred aside from the construction of accessory dwelling units on single-family parcels.
C. Providing for a diverse range of housing types is an important consideration
in a community. A diverse range of housing types helps ensure that all households in a
community, regardless of income level, size, age, and family type, have the ability to find
adequate housing that meets their needs.
D. According to the California Department of Finance E -5 Report, 2021, the
City’s housing unit vacancy rate in 2020 was 4.8%, where the vacancy rate in Los Angeles
County was 6.4% and in the Southern California Association of Governments (SCAG)
Region it was 7.6%, indicate housing choice is very limited in Rancho Palos Verdes.
E. The City has some of the region’s highest single -family housing prices.
According to SCAG data, between 2000 and 2018, median home sales prices in Rancho
Palos Verdes increased 127% while prices in the SCAG region increased 151%, but the
City’s median home sales price was still much higher than for the region overall in 2018,
at $1,250,000, versus only $560,977 for the SCAG region. Prices in Rancho Palos Verdes
have ranged from a low of 176.7% of the SCAG region median in 2007 and a high of
285.2% in 2009.
F. According to the ACS, the median monthly contract rent for the 2014
through 2018 period3 was $1,288 for the region, and nearly twice that in Rancho Palos
Verdes at $2,505. Only 49 properties, 28 of which are homes) are available for rent as of
April 2024 according to Zillow.
G. Extremely low, very low, low, and moderate income households cannot
afford market-rate rental or ownership housing in Rancho Palos Verdes without assuming
a significant cost burden.
H. The increases in rents caused by the limited supply of rental housing force
families to pay a disproportionate amount of household income on rent, creating strain on
household finances. If households are forced to move out of the area because of
increased rents, this can lead to loss of community, stress and anxiety for those forced to
relocate, increased commute times and traffic impacts if displaced workers cannot find
affordable housing within the City, and interruption of the education of children in the
home.
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I. A lack of affordable rental housing supply and increasing rents additionally
increase the risk that more households will become homeless and prevent homeless
individuals and families from escaping homelessness.
J. When people have access to safe and affordable housing, they have more
money for food and health care, are less likely to become homeless and in need of
government subsidized services, their children do better in school, and businesses have
an easier time recruiting and retaining employees.
K. Government Code § 65589.5 provides that the Legislature finds and
declares all of the following:
(1) The lack of housing, including emergency shelters, is a critical problem that
threatens the economic, environmental, and social quality of life in California.
(2) California housing has become the most expensive in the nation. The excessive
cost of the state’s housing supply is partially caused by activities and policies of many
local governments that limit the approval of housing, increase the cost of land for housing,
and require that high fees and exactions be paid by producers of housing.
(3) Among the consequences of those actions are discrimination against low
income and minority households, lack of housing to support employment growth,
imbalance in jobs and housing, reduced mobility, urban sprawl, excessive commuting,
and air quality deterioration.
(4) Many local governments do not give adequate attention to the economic,
environmental, and social costs of decisions that result in disapproval of housing
development projects, reduction in density of housing projects, and excessive standards
for housing development projects.
L. In order to help facilitate the development of sufficient housing to alleviate
the regional and statewide housing crisis, the City is required to provide sufficient land in
its General Plan and Zoning Code to provide the City’s fair share of housing to meet the
needs of the Southern California region. The MUOD and ROD are critical mechanisms
for ensuring the City provides sufficient land to accommodate its RHNA.
M. In order for the Housing Element to be in compliance with the State Housing
Element Law the City must ensure that the MUOD and ROD comply with State Housing
Element Law as interpreted by the court in the New Commune Decision otherwise the
MUOD and ROD may not be used to authorize new essential housing within the
boundaries of the MUOD and ROD.
N. Adopting the urgency ordinance allows the amendments to the MUOD and
ROD, to be effective immediately, thereby ensuring that these overlay zones continue to
eliminate constraints to the essential housing identified in the Housing Element.
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Section 3. The City Council finds that the Revised Final 2021 -2029 Housing
Element adopted on April 16, 2024, in conjunction with the revisions to the Zoning Code
adopted that day, was substantially compliant with the State Housing Element Law as of
the date of its adoption, and that the proposed amendments to the MUOD and ROD to
address the New Commune Decision ensures that the 2021-2029 Housing Element
continues to be substantially compliant with State Housing Element Law.
Section 4. CEQA Compliance. Based on its independent judgment, after
consideration of the whole of the administrative record, the City Council determines the
amendments to the MUOD and ROD were adequately assessed in the Negative
Declaration adopted on August 11, 2022; and pursuant to CEQA Guidelines 15162 and
15164, and Addendum No. 1 dated March 2024, the City Council finds no major revisions
are required to the Negative Declaration and no subsequent EIR or negative declaration
is required for approval of the project.
Section 5. Amendment to Chapter 17.47 “Mixed Use Overlay District” (MUOD) and
Chapter 17.48 “Residential Overlay District” (ROD) of the Rancho Palos Verdes Municipal
Code are hereby amended as set forth in Exhibit A, with deletions depicted with “strike -
through” text and additions depicted with “underlined” text. Amendments require that any
new development or additions in these districts must allow 100 percent residential use,
require that residential use occupy at least 50 percent of the total floor area of a mixed-
use project, and require that the overlay is applicable to all new development projects in
these overlay districts.
Section 6. Severability. If any provision(s) of this Ordinance or the application
thereof to any person or circumstances is held invalid or unconstitutional by any court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect a ny other
provision or application, and to this end the provisions of this ordinance are declared to
be severable. The City Council hereby declares that they would have adopted this
ordinance and each section, subsection, sentence, clause, phrase, part or p ortion thereof,
irrespective of the fact that any one or more sections, subsections, clauses, phrases,
parts or portions thereof be declared invalid or unconstitutional.
Section 7. Posting. The City Clerk shall certify the passage and adoption of this
Ordinance by the City Council and shall cause this ordinance to be published or posted
in accordance with Government Code section 36933 as required by law.
Section 8. Effective Date. Pursuant to Government Code section 36937, this
Urgency Ordinance shall take effective immediately upon approval of the same by a four
fifths (4/5) affirmative vote of the City Council.
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PASSED, APPROVED and ADOPTED by a 4/5th vote of the entire City Council
this __ day of March 2026.
________________________________________
Paul Seo, Mayor
Attest:
Teresa Takaoka, City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )ss
CITY OF RANCHO PALOS VERDES )
I, Teresa Takaoka, City Clerk of the City of Rancho Palos Verdes, do hereby certify that
the above Urgency Ordinance No. ___U, was duly adopted by the City Council of said
City at a regular meeting thereof held on March __, 2026.
AYES:
NOES:
ABSENT:
ABSTAIN:
Teresa Takaoka, City Clerk
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Title 17 - ZONING
ARTICLE V. - SPECIAL DISTRICTS
CHAPTER 17.47. MIXED-USE OVERLAY DISTRICT
01203.0005 2079817.1
Rancho Palos Verdes, California, Code of Ordinances Created: 2025-10-14 09:39:29 [EST]
(Supp. No. 3)
Page 1 of 27
CHAPTER 17.47. MIXED-USE OVERLAY DISTRICT
17.47.010. Purpose
The mixed-use overlay district (MUOD) implements various programs in the city's
housing element by facilitating the development of a MUOD project of residential-only or
mixed-use development with residential and commercial uses on select parcels that
encourage:
A. A compact and infill development pattern that promotes efficient use of land
and infrastructure, minimizes automobile dependency, and promotes vibrant
and active lifestyles;
B. A compatible mix of uses including residential, commercial, and office land
uses in a horizontal or vertical configuration that co -locates residents with
pedestrian-oriented amenities;
C. A diversity of multi-family housing types in a residential-only or mixed-use
configuration to increase housing choice and affordability; and
D. Revitalization of the city's commercial corridors as places to live, work, and
play, thereby supporting the city's economic development initiatives.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.47.020. Applicability.
A. Applicable parcels. The MUOD is an overlay district applicable to parcels with an
underlying nonresidential base district designation. The MUOD shall only apply to
the parcels identified in the mixed-use overlay district map on file with the
community development department. Any new development or projects that are an
addition by increasing the square footage to an existing development on property
within this overlay district shall comply with the provisions of this chapter.
B. Relationship to the underlaying base district. The provisions of the underlying base
district shall continue to apply to existing uses and development on a property
unless specifically superseded by a MUOD project when a property owner chooses
to exercise; however any new development or projects that are an addition by
increasing the square footage to an existing development on a property within this
overlay district shall comply with the provisions of this chapter.
C. Relationship to overlay control districts. If applicable, the objective provisions of any
overlay control district shall continue to apply to a property unless specifically
superseded by a MUOD project when a property owner chooses to exerciseinitiates
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01203.0005 2079817.1
Created: 2025-10-14 09:39:29 [EST]
(Supp. No. 3)
Page 2 of 27
provisions of this chapter. In the event that the provisions of any overlay control
district are in conflict with provisions of this chapter, this chapter shall govern.
D. Relationship to state density bonus law. A MUOD project is eligible for a density
bonus in accordance with Chapter 17.11 (affordable housing).
E. Designation. The application of the MUOD shall be signified by the designation of a
"MUOD" suffix following the base district designation on the official zoning map. For
example, the use of the MUOD in conjunction with the commercial-general district
would be designated as "CG-MUOD."
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.47.030. Administrative review.
A. Ministerial approval. MUOD projects for owner-occupied and rental multifamily
residential uses where at least 20 percent of the units are affordable to lower
income households, as determined by Government Code § 65589.5 and defined by
Health and Safety Code § 50079.5, as it may be amended from time to time, are
eligible for ministerial approval. Projects that meet that affordability requirement,
comply with the provisions of this chapter, and do not require any of the approvals
set forth in subsection B, shall be approved ministerially and are not subject to a
conditional use permit, planned unit development permit, or other discretionary
local government review or approval. The director shall approve an administrative
permit to construct and operate a MUOD project under this chapter if the
application complies with the provisions of this chapter. MUOD projects that do not
meet the 20 percent affordability requirement must follow the conditional use permit
application and approval process.
B. Need for additional approvals. If an applicant requires approval of an application for
a lot line adjustment, merger of parcels, or subdivision in conjunction with approval
of an application pursuant to this chapter, a separate application shall proceed in
accordance with Title 16, subdivisions.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.47.040. Development standards.
The objective provisions of Article VI (use and development standards) shall apply
to all MUOD projects. For exceptions to those provisions and application of additional
standards, the development standards contained in this section shall also apply to all
MUOD projects. In the event that the provisions of Article VI are in conflict with
applicable provisions of this section, this section shall govern.
A. Building standards.
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1. Residential density.
a. Density standards shall be prescribed in Table 17.47.040).1). and in
this subsection.
Table 17.47.040(.1).
Maximum Residential Density Standards for MUOD
Multi-family
residential
projects
Mixed-use
projects
Maximum Residential
Density
45 dwelling units per acre
Minimum Residential
Density
20 dwelling units per acre
b. For all new development or projects that are an addition by increasing
the square footage to an existing development in a MUOD overlay
projects, a minimum of 25 50 percent of the total gross floor area for
the proposed new mixed-use project or addition shall be dedicated to
residential uses.
c. A project in the MUOD may have up to 100 percent residential use of
the total floor area of a project.
2. Setbacks.
a. The applicable objective provisions of Section 17.48.030 (setbacks)
shall apply with the following exceptions and additional standards as
prescribed Table 17.47.040(.2).
Table 17.47.040(.2).
Minimum and Maximum Building
Setback Standards for MUOD
Multi-family
residential
projects
Mixed-use
projects
Front 5 feet min. to 15 feet max. 5 feet min. to 10 feet max. (1)
Street Side 5 feet min. to 15 feet max. 5 feet min. to 10 feet max. (1)
Rear 10 feet min. 10 feet min.
Interior Side 5 feet min. (2) 5 feet min. (2)
Table 17.47.040(.2). Notes:
(1) Residential units on the ground floor shall have a minimum front and street -side
setback of five feet.
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(2) A minimum interior side setback shall be the same as required for a residential use
on the abutting RS-district lot. In cases where abutting property is outside of the city
boundary, a minimum five-foot setback shall apply.
b. Setback Encroachments. In addition to the applicable exceptions
provided in Section 17.48.030 (setbacks), the following setback
encroachments are allowed within setbacks not more than six inches
for each foot of the required setback:
i. Landscaping per subsection 17.47.040(.B). of this chapter;
ii. Fences, walls, and hedges per subsection 17.47.040(.B). of
this chapter;
iii. Shade structures, such as awnings, trellises, canopies, or
sunshades, as approved by the director;
iv. Architecturally defined building entries, such as porches,
stoops, or terraces, as approved by the director;
v. For mixed-use projects only, outdoor display and sales of
merchandise per subsection 17.47.040(.D). of this chapter.
3. Building height.
a. The applicable objective provisions of Section 17.48.050 (building
height) shall apply with the following exceptions as prescribed in
Table 17.47.040(.3) and in this subsection.
Table 17.47.040(.3).
Maximum Building Height Standards for MUOD
Multi-family
residential
projects
Mixed-use
projects
Max. Building Height 60 feet
4. Facçade modulation and articulation.
a. Facçade break. Building facades with frontage along a street shall
provide for the entirety of the wall plane a projection or recess of five
feet in depth for every 50 to 100 feet of continuous horizonal length of
building façadefacade, as shown in Figure 17.47.040(.1).
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Figure 17.47.040(.1).
Façade Break
b. Blank facçades. Blank building facades shall be prohibited. Building
facades without the use of windows or doors shall not span a
continuous horizontal length greater than 20 feet across any story, as
shown in Figure 17.47.040(.2).
Figure 17.47.040(.2).
Blank Facçades
c. Facçade modulation and articulation. Building facades facing a street
shall incorporate at least one of the following design features for at
least 25 percent of the façade area, as shown in Figure 17.47.040 (.3).
i. Building step-backs, recesses/reliefs, and/or projections of at
least 2 feet in depth,
ii. Use of balconies, decks, porches, patios, and/or terraces,
and/or
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iii. Use of awnings, lattices, louvers, and/or other shading
devices as approved by the director.
Figure 17.47.040.3.
Facçade Modulation and Articulation
5. Ground floor.
a. Ground floor building entries. Building facades with frontage along a
street shall provide a minimum of one ground floor building entry per
building facade. The building entry shall be visible from the street, be
oriented towards the street, and provide a pedestrian walkway to the
sidewalk along each abutting public right-of-way. Building entries with
no frontage along a street shall be oriented towards common areas,
such as courtyards, plazas, and paseos.
b. Ground floor dwelling units. Each at-grade ground floor dwelling unit
facing a street shall have its own ground floor building entry that is
visible from the street, oriented towards the street, and provides a
pedestrian walkway to the sidewalk along the street, as shown in
Figure 17.47.040.4.
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Figure 17.47.040(.4).
Ground Floor Dwelling Units
c. Ground floor facçade treatment. Buildings of three or more stories in
height shall incorporate one of the following design features along the
building facçade with frontage along a street, as shown in Figure
17.47.040(.5).
i. A change in façade color between the ground floor and the
upper floors.
ii. A change in façade material between the ground floor and
the upper floors, where the ground floor is distinguished
through the application of brick, stone, concrete masonry, or
other distinct material as approved by the Director.
iii. Recess or projection of the upper floors from the ground floor
of at least two feet in depth.
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Figure 17.47.040(.5).
Ground Floor Façade Treatment
6. Transparency.
a. Nonresidential. Each ground floor facçade shall dedicate at minimum
of 50 percent of the facçade area to façade openings, such as
windows or doors. The use of tinted, mirrored, or reflective glass is
prohibited.
b. Residential. Each ground floor facçade shall dedicate a minimum of
25 percent of the façade area to façade openings, such as windows
or doors. The use of tinted, mirrored, or reflective glass is prohibited.
B. Open space standards.
1. Private open space.
a. Private open space standards shall be prescribed in Table
17.47.040(.4). and in this subsection.
Table 17.47.040(.4)
Private Open Space Requirements per Unit Type for MUOD
Multi-family
residential
projects
Mixed-use
projects
Minimum Area for Usable
Private Open Space per
Unit
130 square feet 65 square feet
b. Each residential unit shall provide at least one private open space that
measures at least five feet in length in any direction.
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c. Private open spaces shall not include any portion of required setback
area, off-street parking area, driveways, turnaround areas, loading
area, storage area or any accessory building.
2. Common open space.
a. Common open space requirements are prescribed in Table
17.47.040(.5) and in this subsection.
Table 17.47.040(.5).
Common Open Space Requirements per Unit Type for MUOD
Multi-family
residential
projects
Mixed-use
projects
Minimum Area for Usable
Common Open Space per
Unit
100 square feet
b. Any common open space shall measure at least 15 feet in length in
any direction.
c. A minimum of 25 percent of the total area of common open spaces
shall be landscaped per subsection 17.47.040(.B). of this chapter.
d. A minimum of one tree for every 500 square feet of outdoor common
open space area shall be provided within the common open space.
e. Common open spaces shall not include any portion of required street
setback area, off-street parking area, driveways, turnaround areas,
loading area, or storage area.
3. Landscaping.
a. The applicable objective provisions for landscaping of Chapter 15.34
(water efficient landscaping) shall apply.
4. Fences, walls, and hedges.
a. The applicable objective provisions for fences, walls, and hedges of
Section 17.76.30 (fences, walls, and hedges) shall apply.
C. Parking standards.
1. Applicability.
a. The applicable objective provisions for parking perof Chapter 17.50
(nonresidential parking and loading standards) shall apply to both
residential and mixed-use projects in the MUOD with the following
exceptions to those provisions and application additional standards in
this subsection.
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2. Minimum parking.
a. Minimum parking requirements are prescribed in Table 17.47.040 (.6).
and in this subsection.
Table 17.47.040(.6).
Off-Street Parking Requirements for MUOD
Residential Uses
Minimum Parking Spaces Required per
Dwelling Unit
1 space
Nonresidential Uses
Minimum Parking Spaces Required per
Nonresidential Floor Area
Retail Sales and Services 2 spaces per 1,000 square feet;
Office, Professional and Business
Support
Hotel 0.5 spaces per hotel room
Recreation, Education and Public
Assembly
Chapter 17.50.20 (parking requirements)
Table 17.47.040(.6). Notes:
(1) Guest residential parking may be shared with commercial parking in mixed-use
projects subject to Section 17.50.030 (joint use and common parking facilities).
3. Parking reduction in proximity to transit.
a. Pursuant to Government Code § 65863.2, the required off-street
vehicular parking may be waived for certain projects within one-half
mile distance of public transit, as applicable.
4. Unbundled parking.
a. For dwelling units included in MUOD projects, vehicular parking
spaces shall be leased or sold separately from dwelling unit rental or
purchase fees, such that renters or buyers have the option of renting
or buying the dwelling unit at a lower price than if the parking space
was included. In addition, the following shall apply:
i. For deed-restricted affordable dwelling units, one parking
space shall be included in the base rent of each unit. The
tenant may choose to receive the parking space or receive a
rent discount equivalent to half the amount charged for
monthly lease of a parking space. Tenants of affordable
dwelling units shall not sublease their parking spaces.
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ii. Renters or buyers have the right of first refusal to parking
built for their unit. Any remaining spaces may be leased to
other users on a month-to-month basis. New occupants shall
have the opportunity to lease or purchase parking built for
their unit.
5. Screening.
a. Screening. All parking areas, including at-grade surface parking and
above-grade structured parking, facing a street or abutting a
residential use shall be screened by landscaping, buildings, or other
screening treatments, such as fencing or green wall, as approved by
the director, so as not to be visible from the street or other uses on
the site. Entry/exit openings, driveways, drive aisles, curb cuts, and
access lanes for vehicular, fire, utilities, and pedestrian access are
exempt from screening.
b. Surface parking. At-grade surface parking shall be prohibited within
the street setback, such that parking is located to the rear of the
parcel or behind buildings.
c. Below-grade structured parking. Below-grade structured parking shall
be exempt from street setback requirements.
D. Site standards.
1. Lot.
a. The applicable objective provisions for lots of Section 17.48.020 (lot
area and dimensions) shall apply.
2. Access and circulation.
a. In order of priority and subject to approval by the director and the
city's traffic engineer, vehicular access shall be provided from (a) an
alley, rear street, or perimeter drive aisle, (b) a side street, (c) an
existing or relocated access point on a front street, and (d) a new
access point on a front street.
3. Slope and grading.
a. The applicable objective provisions for slope and grading shall apply.
i. Section 17.48.060 (extreme slope);
ii. Section 17.76.040 (grading permit);
iii. Section 17.76.060 (extreme slope permit); and
iv. Section 17.76.130 (geologic investigation permit).
4. Intersection visibility.
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a. The applicable objective provisions for intersection visibility of Section
17.48.070 (intersection visibility) shall apply.
5. Exterior lighting.
a. The applicable objective provisions for exterior lighting of Chapter
17.56 (environmental protection) shall apply.
6. Underground utilities.
a. The applicable objective provisions for underground utilities of Section
17.54.020 (underground utilities) shall apply.
7. Trash and recycling.
a. The applicable objective provisions for trash and recycling of Section
17.54.030 (trash receptacle enclosures) and Section 17.58.030
(requirements and guidelines for collecting and loading of recyclable
materials in development projects) shall apply.
8. Mechanical equipment, storage areas, and loading docks.
a. The applicable objective provisions for mechanical equipment,
storage areas, and loading docks of Section 17.54.040 (screening of
mechanical equipment, storage areas, and loading docks) shall apply.
9. Signs.
a. The applicable objective provisions for signs of Chapter 17.75 (sign
code) shall apply.
10. Outdoor display and sales of merchandise.
a. For mixed-use projects only, The applicable objective provisions of
Chapter 17.62 (special use permits) for the temporary outdoor display
and sale of merchandise shall apply.
11. Dedications, ROW improvements, and off-site improvements.
a. The applicable objective provisions of Chapter 17.52 (dedications,
right-of-way improvements, and off-site improvements) shall apply.
12. Development projects greater than three acres.
a. Development projects, whether on one parcel or across multiple
adjoining parcels, with a total developable area of three acres or more
shall provide the following:
i. Pedestrian accessways, such as walkways, and vehicular
accessways with pedestrian access, such as sidewalks, that
provide access to public rights-of-way shall be provided for
approximately every two acres of developable area. Parking
areas, passenger drop-off areas, loading zones, and trash
storage areas shall not count as pedestrian accessways.
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ii. A publicly accessible open space, defined as a privately
owned space that is open and accessible to the public, such
as a plaza or park, shall be provided for approximately every
three acres of developable area per the following:
iii. Publicly accessible open spaces shall have a minimum area
of 400 square feet with a minimum dimension of 20 feet in
each direction.
iv. Publicly accessible open spaces shall be accessible to the
general public and open at a minimum from 8:00 a.m. to 8:00
p.m.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.47.050. Requesting a MUOD designation.
For properties not currently included in the MUOD, the following provisions apply:
A. A request for a MUOD designation may be initiated by an application by a
property owner made in accordance with the procedures identified in Chapter
17.68 (zone changes and code amendments).
B. Application of the overlay district shall be consistent with the objectives of this
chapter, the zoning ordinance, and general plan should be reasonably
compatible with surrounding land uses, and promote the general health, safety
and welfare.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.47.060. Allowed land uses and permit requirements.
A. Allowed uses and permit requirements in the MUOD are listed in Table
17.47.0509.1).
B. A definition of each land use is listed in Chapter 17.96 (definitions).
C. Uses not listed in Table 17.47.050(.1). are not allowed and subject to Section
17.86.030 (prohibited uses).
D. All nonconforming uses are subject to Chapter 17.84 (nonconformities).
Key
Symbol Description Additional Regulations
P Permitted Use
CUP Conditional Use Permit required Chapter 17.60 (conditional use permits)
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Table 17.47.050(.1).
Allowed Uses and Permit Requirements in MUOD
Land Use Type Permission Additional Regulations
RESIDENTIAL USES
Accessory dwelling unit and junior
accessory dwelling unit
P Chapter 17.10 (accessory
dwelling unit and junior
dwelling unit development
standards)
Day care, small family P
Day care, large family P Section 17.76.070 (large
family day care home permit)
Emergency shelters P
Employee housing P
Employee, home occupation P Chapter 17.08 (home
occupations)
Low-barrier navigation center P
Mixed-use development P
Multiple-family residential P
Residential care facility, small P
Residential care facility, large P
Supportive housing P
Transitional housing P
COMMERCIAL USES
RETAIL SALES AND SERVICES
Alcoholic beverage tasting rooms CUP
Convenience stores CUP Section 17.76.080
(convenience stores)
Dry cleaners/laundry uses which have
cleaning operations on site
CUP
Farmer's market CUP
Food hall P
Outdoor sale, storage or display of
merchandise and/or provisions of
services, only in conjunction with a
permanent use in a building
CUP
Personal services P
Retail store P
Restaurant CUP
Restaurant with limited live
entertainment
P
CIVIC, CULTURAL, EDUCATIONAL, AND RECREATIONAL
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Assembly uses, private CUP
Religious institutions, such as
churches, temples or other places
used primarily for religious services,
including parochial schools and
convents
CUP
Day nursery or day care center P
Governmental facilities CUP
Personal improvement services P
OFFICE, PROFESSIONAL, AND BUSINESS SUPPORT
Administrative and professional office P
Business support services P
Financial institutions P
Medical and dental office P
Media production P Chapter 9.16 (still
photography, motion picture
and television productions)
Veterinary clinic P
ENTERTAINMENT AND HOSPITALITY
Bed and breakfast inn CUP
Commercial recreation CUP
Hotels CUP
TRANSPORTATION, COMMUNICATIONS AND UTILITIES
Antenna, commercial and satellite dish CUP Section 17.76.020 (antennas)
TEMPORARY USES
Motion picture or television
productions, and still photography
P Chapter 9.16 (still
photography, motion picture,
and television productions)
Temporary special uses and
development
P Chapter 17.62 (special use
permits)
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
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Title 17 - ZONING
ARTICLE V. - SPECIAL DISTRICTS
CHAPTER 17.48. RESIDENTIAL OVERLAY DISTRICT
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CHAPTER 17.48. RESIDENTIAL OVERLAY DISTRICT1
17.48.010. Purpose.
The residential overlay district (ROD) implements various programs in the city's
housing element by facilitating the development of a ROD project of residential-only or
residential with limited nonresidential uses on select parcels with an existing institu tional
underlying base district designation that encourages:
A. An infill development pattern that is compatible with surrounding
neighborhoods;
B. A compatible mix of uses including residential and supporting, but limited,
commercial, institutional, or recreational land uses that co-locates residents
with on-site amenities; and
C. A diversity of single- and/or multi-family housing types in a residential-only or
mixed-use configuration to increase housing choice and affordability.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.48.020. Applicability.
A. Applicable parcels. The ROD is an overlay district applicable to parcels with an
institutional underlying base district designation. The ROD shall only apply to the
parcels identified in the residential overlay district map on file with the community
development department. Any new development or projects that are an addition by
increasing the square footage to an existing development on property within this
overlay district shall comply with the provisions of this chapter.
B. Relationship to the underlaying base district. The provisions of the underlying base
district shall continue to apply to existing uses and development on a property
unless specifically superseded by a ROD project when a property owner chooses to
exercise; however any new development or projects that are an addition by
increasing the square footage to an existing development on a property within this
overlay district shall comply with the provisions of this chapter.
1Editor's note(s)—Ord. No. 678U, § 4(Att. B), adopted April 16, 2024, renumbered the former Ch. 17.48, §§
17.48.010—17.48.080 as Ch. 17.49, §§ 17.49.010—17.49.080 and enacted a new Ch. 17.48 as set out herein.
The historical notation has been retained with the amended provisions for reference purposes.
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C. Relationship to overlay control districts. If applicable, the objective provisions of any
overlay control districts shall continue to apply to a property unless specifically
superseded by a ROD project when a property owner chooses to exerciseinitiates
provisions of this chapter. In the event that the provisions of any overlay control
district are in conflict with provisions of this chapter, this chapter shall govern.
D. Relationship to state density bonus law. A ROD project is eligible for a density
bonus in accordance with Chapter 17.11 (affordable housing).
E. Designation. The application of the ROD shall be signified by the designation of a
"ROD" suffix following the base district designation on the official zoning map. For
example, the use of the ROD in conjunction with the institutional district would be
designated as "I-ROD."
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.48.030. Administrative review.
A. Ministerial approval. ROD projects for owner-occupied and rental multifamily
residential uses where at least 20 percent of the units are affordable to lower
income households, as determined by Government Code § 65589.5 and defined by
Health and Safety Code § 50079.5, as may be amended from time to time, are
eligible for ministerial approval. Projects that meet that affordability requirement,
comply with the provisions of this chapter and do not require any of the approvals
set forth in subsection B, shall be approved ministerially and are not subject to a
conditional use permit, planned unit development permit, or other discretionary
local government review or approval. The director shall approve an administrative
permit to construct and operate a ROD project under this chapter if the application
complies with the provisions of this chapter. ROD projects that do not meet the 20
percent affordability requirement must follow the conditional use permit application
and approval process.
B. Need for additional approvals. If an applicant requires approval of an application for
a lot line adjustment, merger of parcels, or subdivision in conjunction with approval
of an application pursuant to this chapter, a separate application shall proceed in
accordance with Title 16, subdivisions.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.48.040. Development standards.
The objective provisions of Article VI (use and development standards) and Article
III (institutional and cemetery districts) shall apply to all ROD projects. For exceptions to
those provisions and application of additional standards, the development standards
contained in this section shall also apply to all ROD projects. In the event that the
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provisions of Articles VI or III are in conflict with applicable provisions of this section, this
section shall govern.
A. Building standards.
1. Residential density.
a. Residential density standards shall be prescribed in Table
17.48.040(.1). and this subsection.
b. In calculating density, areas of extreme slope (35 percent or steeper)
and/or areas which are determined unsuitable for development, based
on submitted and approved geologic reports, shall be excluded.
Table 17.48.040(.1).
Maximum Residential Density Standards for ROD
APN Maximum Number of
Dwelling Units per
Parcel
Minimum Number of
Dwelling Units per
Parcel
7573-002-014 180 dwelling units 100 dwelling units
7564-024-001 12 dwelling units N/A
7564-024-002 8 dwelling units N/A
c. For all new development or projects that are an addition by increasing
the square footage to an existing development in a ROD overlay, a
minimum of 50 percent of the total gross floor area for the proposed
new mixed-use project or addition shall be dedicated to residential
uses.
d. A project in the ROD may have up to 100 percent residential use of
the total floor area of a project.
2. Setbacks.
a. The applicable objective provisions for setbacks of Section 17.48.030
(setbacks) and the underlying base district shall apply.
3. Building height.
a. The applicable objective provisions for building height of Section
17.48.050 (building height) with the following exceptions as
prescribed in Table 17.48.040(.2).
Table 17.48.040(.2).
Maximum Building Height Standards for ROD
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APN Maximum Building
Height
7573-002-014 60 feet
7564-024-001 36 feet
7564-024-002 36 feet
4. Facçade modulation and articulation.
a. Facçade break. Building facades with frontage along a street shall
provide for the entirety of the wall plane a projection or recess of five
feet in depth for every 50 to 100 feet of continuous horizonal length of
building facçade, as shown in Figure 17.48.040(.1).
Figure 17.48.040(.1).
Facçade Break
b. Blank facçades. Blank building facades shall be prohibited. Building
facades without the use of windows or doors shall not span a
continuous horizontal length greater than 20 feet across any story, as
shown in Figure 17.48.040(.2).
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Figure 17.48.040.2.
Blank Facçades
c. Facçade modulation and articulation. Building facades facing a street
shall incorporate at least one of the following design features for at
least 25 percent of the façade area, as shown in Figure 17.48.040 (.3).
i. Building step-backs, recesses/reliefs, and/or projections of at
least 2 feet in depth,
ii. Use of balconies, decks, porches, patios, and/or terraces,
and/or
iii. Use of awnings, lattices, louvers, and/or other shading
devices as approved by the director.
Figure 17.48.040.3.
Facçade Modulation and Articulation
5. Ground floor.
a. Ground floor building entries. Building facades with frontage along a
street shall provide a minimum of one ground floor building entry per
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building facade. The building entry shall be visible from the street, be
oriented towards the street, and provide a pedestrian walkway to the
sidewalk along each abutting public right-of-way. Building entries with
no frontage along a street shall be oriented towards common areas,
such as courtyards, plazas, and paseos.
b. Ground floor dwelling units. Each at-grade ground floor dwelling unit
facing a street shall have its own ground floor building entry that is
visible from the street, oriented towards the street, and provides a
pedestrian walkway to the sidewalk along the street, as shown in
Figure 17.48.040(.4).
Figure 17.48.040(.4).
Ground Floor Dwelling Units
c. Ground floor facçade treatment. Buildings of three or more stories in
height shall incorporate one of the following design features along the
building facçade with frontage along a street, as shown in Figure
17.48.040(.5).
i. A change in facçade color between the ground floor and the
upper floors.
ii. A change in facçade material between the ground floor and
the upper floors, where the ground floor is distinguished
through the application of brick, stone, concrete masonry, or
other distinct material as approved by the director.
iii. Recess or projection of the upper floors from the ground floor
of at least two feet in depth.
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Figure 17.48.040.5.
Ground Floor Facçade Treatment
6. Transparency.
a. Nonresidential. Each ground floor facçade shall dedicate at minimum
of 50 percent of the facçade area to facçade openings, such as
windows or doors. The use of tinted, mirrored, or reflective glass is
prohibited.
b. Residential. Each ground floor facçade shall dedicate a minimum of
25 percent of the facçade area to facçade openings, such as windows
or doors. The use of tinted, mirrored, or reflective glass is prohibited.
B. Open space standards.
1. Private open space.
a. Private open space standards shall be prescribed in Table
17.48.040(.3). and in this subsection.
Table 17.48.040(.3).
Private Open Space Requirements per Unit Type for ROD
Dwelling Unit
Type
Minimum Area of Usable
Private Open Space per
Unit
Single-Family 130 square feet
Multi-Family 130 square feet
b. Each dwelling unit shall provide at least one private open space that
measures at least seven feet in length in any direction.
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c. Private open spaces shall be adjacent to and provide a private,
usable area for each dwelling unit, and shall not include any portion of
required setback area, off-street parking area, driveways, turnaround
areas, loading area, storage area or any accessory building.
2. Common open space.
a. The applicable objective provisions for common open space of
Section 17.42.040 (development standards, residential planned
development) shall apply.
3. Landscaping.
a. The applicable objective provisions for landscaping of Chapter 15.34
(water efficient landscaping) shall apply.
4. Fences, walls, and hedges.
a. The applicable objective provisions for fences, walls, and hedges of
Section 17.76.030 (fences, walls, and hedges) shall apply.
C. Parking standards.
1. Minimum parking.
a. For single-family dwelling units, The applicable objective provisions
for parking of Section 17.02.030 (development standards, single -
family residential districts) shall apply.
b. For multiple-family dwelling units, The applicable objective provisions
for parking of Section 17.42.040 (development standards, residential
planned development) shall apply, subject to the exceptions and
additional standards in Table 17.48.040(.4).
Table 17.48.040(.4)
Off-Street Parking Requirements for
ROD
Multiple-Family Dwelling Units
Minimum Parking Spaces Required per Dwelling Unit 1 space
c. For nonresidential uses, The applicable objective provisions for
parking of Chapter 17.50 (nonresidential parking and loading
standards) and the underlying base district shall apply.
2. Screening.
a. Screening. With the exception of single-family dwelling units, all
parking areas, including at- grade surface parking and above-grade
structured parking, facing a street or abutting a residential use shall
be screened by landscaping, buildings, or other screening treatments,
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such as fencing or green walls, as approved by the director, so as not
to be visible from the street or other uses on the site. Entry/exit
openings, driveways, drive aisles, curb cuts, and access lanes for
vehicular, fire, utilities, and pedestrian access are exempt from
screening.
b. Surface parking. With the exception of single-family dwelling units, at-
grade surface parking shall be prohibited within the street setback,
such that parking is located to the rear of the parcel or behind
buildings.
D. Site standards.
1. Lot.
a. The applicable objective provisions for lots of Section 17.48.020 (lot
area and dimensions) shall apply.
2. Access and circulation.
a. In order of priority and subject to approval by the director and the
city's traffic engineer, vehicular access shall be provided from (a) an
alley, rear street, or perimeter drive aisle, (b) a side street, (c) an
existing or relocated access point on a front street, or (d) a new
access point on a front street.
3. Slope and grading.
a. The applicable objective provisions for slope and grading shall apply:
i. Section 17.48.060 (extreme slope);
ii. Section 17.76.040 (grading permit);
iii. Section 17.76.060 (extreme slope permit); and
iv. Section 17.76.130 (geologic investigation permit).
4. Intersection visibility.
a. The applicable objective provisions for intersection visibility of Section
17.48.070 (intersection visibility) shall apply.
5. Exterior lighting.
a. The applicable objective provisions for exterior lighting of Chapter
17.56 (environmental protection) shall apply.
6. Underground utilities.
a. The applicable objective provisions for underground utilities of Section
17.54.020 (underground utilities) shall apply.
7. Trash and recycling.
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a. The applicable objective provisions for trash and recycling of Section
17.54.030 (trash receptacle enclosures) and Section 17.58.030
(requirements and guidelines for collecting and loading of recyclable
materials in development projects) shall apply.
8. Mechanical equipment, storage areas, and loading docks.
a. The applicable objective provisions for mechanical equipment,
storage areas, and loading docks of Section 17.54.040 (screening of
mechanical equipment, storage areas, and loading docks) shall apply.
9. Signs.
a. The applicable objective provisions for signs of Chapter 17.75 (sign
code) shall apply.
10. Dedications, ROW improvements, and off-site improvements.
a. The applicable objective provisions for dedications, ROW
improvements, and off-site improvements of Chapter 17.52
(dedications, right-of-way improvements, and off-site improvements)
shall apply.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.48.050. Requesting a ROD designation.
For properties not currently included in the ROD, the following provisions apply:
A. A request for a ROD designation may be initiated by an application by a
property owner made in accordance with the procedures identified in Chapter
17.68 (zone changes and code amendments).
B. Application of the overlay district shall be consistent with the objectives of this
chapter, the zoning ordinance, and general plan should be reasonably
compatible with surrounding land uses, and promote the general health, safety
and welfare.
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
17.48.060. Allowed land uses and permit requirements.
A. Allowed uses and permit requirements in the MUOD ROD are listed in Table
17.48.060(.1).
B. A definition of each land use is listed in Chapter 17.96 (definitions).
C. Uses not listed in Table 17.48.060(.1). are not allowed and subject to Section
17.86.030 (prohibited uses).
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D. All nonconforming uses are subject to Chapter 17.84 (nonconformities).
Key
Symbol Description Additional Regulations
P Permitted Use
CUP Conditional Use Permit required Chapter 17.60 (conditional use permits)
Table 17.48.060(.1).
Allowed Uses and Permit Requirements in ROD
Land Use Type Permission Additional Regulations
RESIDENTIAL USES
Accessory dwelling unit and junior
accessory dwelling unit
P Chapter 17.10 (accessory
dwelling unit and junior
dwelling unit development
standards)
Emergency shelter P
Employee housing for six or fewer
people
P
Employee, home occupation P Chapter 17.08 (home
occupations)
Low-barrier navigation center P
Multiple-family residential P
Residential care facility, small P
Residential care facility, large P
Single-family residential P
Supportive housing P
Transitional housing P
COMMERCIAL AND INSTITUTIONAL USES
Minor professional and retail
commercial uses which are clearly
ancillary to the major use
P
Governmental facility CUP Section 17.26.030 (uses and
development permitted by
conditional use permit,
institutional district)
Educational institution
Religious institutions, such as
churches, temples or other places
used primarily for religious services,
including parochial schools and
convents
Clinics and sanitariums, including
animal
hospitals
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Sanitariums, nursing homes, rest
homes, homes for the aged, homes for
children and homes for mental
patients.
Bed and breakfast inn
TEMPORARY USES
Temporary special uses and
development
P Chapter 17.62 (special use
permits)
Motion picture or television
productions, and still photography
P Chapter 9.16 (still
photography, motion picture
and television productions)
(Ord. No. 678U, § 4(Att. B), 4-16-2024; Ord. No. 680U, § 5(Att. B), 6-4-2024; Ord. No.
681, § 4(Att. B), 6-18-2024)
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STATE OF CALIFORNIA - BUSINESS, CONSUMER SERVICES AND HOUSING AGENCY GAVIN NEWSOM, Governor
DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT
DIVISION OF HOUSING POLICY DEVELOPMENT
2020 W. El Camino Avenue, Suite 500
Sacramento, CA 95833
(916) 263-2911 / FAX (916) 263-7453
www.hcd.ca.gov
June 12, 2024
Brandy Forbes, Director
Community Development Department
City of Rancho Palos Verdes
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Dear Brandy Forbes,
RE: City of Rancho Palos Verdes’ 6th Cycle (2021-2029) Adopted Housing Element
Thank you for submitting the City of Rancho Palos Verdes’ (City) housing element
update adopted on April 16, 2024 and received for review on April 19, 2024. Pursuant to
Government Code section 65585, subdivision (h), the California Department of Housing
and Community Development (HCD) is reporting the results of its review. Our review
was facilitated by a telephone conversation on May 6 and 30, 2024 with you,
Octavio Silva, Deputy Director, Jessica Bobbett, Senior Planner and the City’s
consultant Matt Kowta. In addition, HCD considered comments from Shahzad Khaligh
and Anthony De Clue pursuant to Government Code section 65585, subdivision (c).
HCD is pleased to find the adopted housing element in substantial compliance with State
Housing Element Law (Gov. Code, § 65580 et seq) as of the date of this letter. The adopted
element addresses the statutory requirements described in HCD’s April 5, 2024 findings
letter. Furthermore, the City has completed actions in the City’s housing element Program 1
(Zoning Amendments to Increase Housing Development Potential) to rezone sites to
accommodate the regional housing needs allocation (RHNA) pursuant to Government Code
section 65583.2, subdivision (c) as demonstrated by Ordinance Number 680U.
Additionally, the City must continue timely and effective implementation of all programs
including but not limited to the following:
• Program 4: Accessory Dwelling Unit Ordinance Amendments
• Program 7: Accessory Dwelling Unit Assistance Program
• Program 15: Place-Based Strategies to Support Areas Targeted for Lower-Income
• Program 18: Zoning Ordinance Amendments to Remove Governmental Constraints
• Program 19: Transparency in Housing Standards and Fees
• Program 20: Implement Development Review Process Improvement
• Program 21: Housing Site Development Assistance
• Program 23: Housing Conservation and Rehabilitation
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Brandy Forbes, Director
Page 2
The City must monitor and report on the results of this and other programs through the
annual progress report, required pursuant to Government Code section 65400. Please be
aware, Government Code section 65585(i) grants HCD authority to review any action or
failure to act by a local government that it determines is inconsistent with an adopted housing
element or housing element law. This includes failure to implement program actions included
in the housing element. HCD may revoke housing element compliance if the local
government’s actions do not comply with state law.
Several federal, state, and regional funding programs consider housing element
compliance as an eligibility or ranking criteria. For example, the CalTrans Senate Bill
(SB) 1 Sustainable Communities grant; the Strategic Growth Council and HCD’s Affordable
Housing and Sustainable Communities programs; and HCD’s Permanent Local Housing
Allocation consider housing element compliance and/or annual reporting requirements
pursuant to Government Code section 65400. With a compliant housing element, the City
of Rancho Palos Verdes meets housing element requirements for these and other funding
sources.
HCD appreciates the cooperation and responsiveness the housing element team provided in
preparation of the City’s housing element. HCD wishes the City success in implementing its
housing element and looks forward to following its progress through the General Plan annual
progress reports pursuant to Government Code section 65400. We are committed to assist
the City in addressing all statutory requirements of State Housing Element Law. If you have
any questions or need additional technical assistance, please contact Fidel Herrera, of our
staff, at fidel.herrera@hcd.ca.gov.
Sincerely,
Melinda Coy
Proactive Housing Accountability Chief
B-2
Filed 10/10/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NEW COMMUNE DTLA LLC
et al.,
Petitioners and Appellants,
v.
CITY OF REDONDO BEACH
et al.,
Defendants and Respondents.
B336042
Los Angeles County
Super. Ct. No. 22TRCP00203
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald F. Frank, Judge. Reversed and
remanded with directions.
Rutan & Tucker, Douglas J. Dennington, Peter J. Howell,
and Erik Leggio for Petitioners and Appellants.
Office of the City Attorney, Michael W. Webb; Richards,
Watson & Gershon, Lisa Bond, and Ginetta L. Giovinco for
Defendants and Respondents.
Patterson & O’Neill, Ryan J. Patterson, Brian O’Neill, and
Ephraim S. Margolin as Amicus Curiae on behalf of Petitioners
and Appellants.
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For decades, California has recognized that housing
opportunities are not equally available to Californians of all
economic levels. It has endeavored to address this problem by
enacting a series of laws aimed at promoting development that
will meet “the housing needs of all economic segments of the
community.” (Gov. Code, § 65580, subd. (d).)1 At issue here is The
Housing Element Law.2 It requires local jurisdictions to
periodically review and adopt a state-approved “housing element”
that explains how they will accommodate their fair share of
regionally needed housing.
New Commune DTLA LLC and Leonid Pustilnikov3 are
developers. New Commune appeals from a denial of its petition
for writ of mandate challenging the City of Redondo Beach’s
housing element. It argues, among other things, that the housing
element failed to adequately identify sites that could realistically
accommodate “lower income” housing. (§ 65582, subd. (l).)
Specifically, it challenges the City’s use of a zoning “overlay” that
would permit construction of affordable multifamily housing on
sites that were otherwise zoned for commercial and industrial
use. An overlay zone is “superimposed” over existing zoning to
permit or restrict additional uses. (1 Rathkopf’s The Law of
1 All statutory references are to the Government Code,
unless otherwise specified.
2 The Housing Element Law is codified as Government Code
sections 65580 to 65589.11 and found in article 10.6 of chapter 3
of division 1 of title 7 of the Government Code.
3 For ease of reference, we refer below to petitioners,
collectively, as New Commune, and to respondents, collectively,
as the City.
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Zoning and Planning (4th ed.) § 1:31, Zoning techniques—
Overlay zones.)
We reverse. An overlay cannot be used to satisfy the
minimum density and residential use requirements set out in
section 65583.2, subdivision (h)(2) (hereafter section
65583.2(h)(2)), where the base zoning expressly permits
development that does not include housing. We also find that the
City has failed to establish that one of the sites identified in the
housing element, the Inglewood Avenue site currently occupied
by a Vons supermarket, was properly identified as a developable
site.
THE HOUSING ELEMENT LAW
A. Goals of Housing Element Law and Regional
Housing Needs Allocation
California requires local governments to adopt a
“comprehensive, long-term general plan for . . . physical
development[.]” (§ 65300.) Each general plan must have a
housing element. (§ 65302, subd. (c).) A housing element must
identify and analyze existing and projected housing needs,
quantify specific objectives for meeting those needs, and program
for development of needed housing. (§ 65583.) This requires,
among other things, “[a]n assessment of housing needs and an
inventory of resources and constraints that are relevant to the
meeting of these needs.” (Id., subd. (a).) It also requires a
program, specifying what actions the local government is
undertaking or intends to undertake to implement the goals and
objectives of the housing element, and on what timeline. (Id.,
subd. (c).) Essentially, the housing element is a set of “standards
and plans for housing sites in the municipality that ‘shall
endeavor to make adequate provision for the housing needs of all
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economic segments of the community.’ [Citations.]” (California
Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435,
444; see also § 65580 [legislative findings concerning Housing
Element Law].)
Local governments must periodically, and as “frequently as
appropriate,” review and evaluate all of the following aspects of
their adopted housing element: “(1) The appropriateness of the
housing goals, objectives, and policies in contributing to the
attainment of the state housing goal. [¶] (2) The effectiveness of
the housing element in attainment of the community’s housing
goals and objectives. [¶] (3) The progress of the city, county, or
city and county in implementation of the housing element. [¶] (4)
The effectiveness of the housing element goals, policies, and
related actions to meet the community’s needs, pursuant to
paragraph (7) of subdivision (a) of Section 65583.” (§ 65588, subd.
(a).)
After this review and evaluation is completed, local
governments must revise their housing element “to reflect the
results of this periodic review.” (§ 65588, subd. (b).) “A revised
housing element’s assessment of needs must quantify the
locality’s existing and projected housing needs for all income
levels, which includes the locality’s proportionate share of
regional housing needs for each income level.” (Martinez v. City of
Clovis (2023) 90 Cal.App.5th 193, 223 (Clovis), citing § 65583,
subd. (a)(1).)
At a minimum this process must occur on a statutorily
established timeline for revision. “The interval between the due
dates for the revised housing element is referred to as a planning
period or cycle, which usually is eight years.” (Clovis, 90
Cal.App.5th at p. 222, citing § 65588, subds. (e)(3), (f)(1).)
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For each planning cycle, the Department of Housing and
Community Development (HCD) provides local governments, in
consultation with regional councils of government and the
Department of Finance, a needs assessment. This assessment is
referred to as a “regional housing needs allocation” (RHNA) and
allocates regional housing need among local governments in the
region. (Clovis, supra, 90 Cal.App.5th at p. 223, citing § 65584,
subd. (b).) A jurisdiction’s share of the RHNA is separated into
four income levels: very low, low, moderate, and above moderate.
(§§ 65583.2, subd. (a), 65584, subd. (f).)
B. Housing Inventory Requirements
As noted above, one aspect of the housing element is an
inventory. The inventory of land must include “land suitable and
available for residential development, including vacant sites and
sites having realistic and demonstrated potential for
redevelopment during the planning period to meet the locality’s
housing need for a designated income level . . . .” (§ 65583, subd.
(a)(3).) The sites available for residential development include (1)
vacant sites zoned for residential use, (2) vacant sites zoned for
nonresidential use where residential development is allowed, (3)
residentially zoned sites that can be developed at a higher
density, and (4) sites zoned for nonresidential use which can be
redeveloped and rezoned for residential use. (§ 65583.2, subd.
(a)(1)–(4).)
For nonvacant sites in the inventory, the local government
must consider “the extent to which existing uses may constitute
an impediment to additional residential development” and “an
analysis of any existing leases or other contracts that would
perpetuate the existing use or prevent redevelopment of the site
for additional residential development.” (§ 65583.2, subd. (g)(1).)
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When a local government identifies nonvacant sites to
accommodate 50 percent of its share of “lower income” housing,
i.e., verylow- and low-income housing, the existing use on any
given site “shall be presumed to impede additional residential
development, absent findings based on substantial evidence that
the use is likely to be discontinued during the planning period.”
(§ 65583.2, subd. (g)(2).)
C. Housing Program and Minimum Requirements for
Lower Income Housing Sites
After preparing its site inventory, a local government must
prepare a program to implement the goals and objectives of its
housing element. (§ 65583, subd. (c).) This includes identifying
specific actions it will take to make sites with appropriate zoning
available. (§ 65583, subd. (c)(1).) The program “shall”
accommodate all RHNA-identified need for lower income
households. (§ 65583.2, subd. (h)(1).) When the site inventory
does not identify adequate sites to accommodate each income
level of the RHNA, the local government shall include a program
for rezoning the sites in the housing element to “close the gap.”
(Clovis, supra, 90 Cal.App.5th at p. 225; § 65583, subd. (c)(1).)
The rezoning program shall identify sites that can be
developed for housing that comply with section 65583.2,
including subdivision (h) (section 65583.2(h)). (§ 65583, subd.
(c)(1)(B).) A rezoning program to address unmet needs for lower
income housing shall “permit owner-occupied and rental
multifamily residential use by right for developments in which at
least 20 percent of the units are affordable to lower income
households during the planning period.” (§ 65583.2, subd. (h)(1).)
“ ‘Use by right’ ” means that a local government cannot require a
“conditional use permit, planned unit development permit, or
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other discretionary local government review or approval” to
approve the residential use. (§ 65583.2, subd. (i).)
Section 65583.2(h) also requires the sites at issue to be
zoned with “minimum density and development standards” of “at
least 20 units per acre” in suburban jurisdictions. (§ 65583.2,
subds. (c)(3)(B)(iii), (h)(2).)4 Further, at least 50 percent of the
lower income housing is required to be “accommodated on sites
designated for residential use and for which nonresidential uses
or mixed uses are not permitted.” (§ 65583.2(h)(2).) There is an
exception to this rule for certain mixed-use sites: subdivision
(h)(2) allows a local government to “accommodate all of the lower
income housing need on sites designated for mixed use if those
sites allow 100 percent residential use and require that
residential use occupy 50 percent of the total floor area of a
mixed-use project.” (Ibid.)
D. Housing Element Adoption Process and HCD Review
The Housing Element Law requires the planning agency of
a local government to submit a draft of its revised housing
element, or subsequent amendments, to HCD for its review and
written findings. (§ 65585, subd. (b)(1).) If HCD’s written findings
are timely submitted as required by section 65585, the local
government must consider the findings “[p]rior to the adoption of
its draft element or draft amendment.” (Id., subd. (e).)
4 After the City adopted the housing element at issue in this
appeal, section 65583.2 was amended to break subdivision (h)
into two paragraphs. As relevant here, the statutory
requirements were not substantively changed. (Compare Stats.
2021, ch. 358, § 2.5, eff. Jan. 1, 2022 with Stats. 2024, ch. 282,
§ 6.5, eff. Jan. 1, 2025.) For clarity, further citations are to the
version of section 65583.2(h) effective January 1, 2025.
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In its written findings, HCD is required to determine
whether the draft element substantially complies with the
Housing Element Law. (§ 65585, subd. (d).) An adopted housing
element may be found to be in substantial compliance by either
HCD or a court. (§ 65585.03, subd. (a).) If HCD finds substantial
compliance, the housing element is subject to a rebuttable
presumption of validity. (§ 65589.3, subd. (a).)
If a local government has not adopted a housing element
that substantially complies with the Housing Element Law, the
local government cannot disapprove affordable housing projects
based on inconsistency with a zoning ordinance or the general
plan. (§ 65589.5, subd. (d)(1), (2).)
FACTUAL AND PROCEDURAL BACKGROUND
I. City Charter Provisions Governing “Major Changes
In Allowable Land Use”
Since 1949, City of Redondo Beach has been a charter city.
(Cawdrey v. City of Redondo Beach (1993) 15 Cal.App.4th 1212,
1217.) “Charter cities are specifically authorized by our state
Constitution to govern themselves, free of state legislative
intrusion, as to those matters deemed municipal affairs.” (State
Building & Construction Trades Council of California v. City of
Vista (2012) 54 Cal.4th 547, 555.) Municipal land use and zoning
regulations are municipal affairs. (Committee of Seven Thousand
v. Superior Court (1988) 45 Cal.3d 491, 511.) The City’s Charter
is its constitution and supreme law. (See Woo v. Superior Court
(2000) 83 Cal.App.4th 967, 974; Domar Electric, Inc. v. City of Los
Angeles (1994) 9 Cal.4th 161, 170.)
In 2008, the City’s residents passed Measure DD, which
added article XXVII to the Redondo Beach City Charter
(hereafter Charter). Under article XXVII, section 27.4, approval
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by a majority of the City voters is required for each “major
change in allowable land use.” “Major change in allowable land
use” is defined as a proposed amendment of, among other things,
the City’s general plan or zoning ordinance.
In 2024, the City’s residents passed Measure RB, which
amended sections relating to “major changes in allowable land
use” to clarify that the public vote requirement does not apply to
amendments or updates to the housing element. (See Charter,
art. XXVII, § 27.6(h) [stating that article “shall not apply to an
amendment to or update of the housing element of the City’s
General Plan”].)
II. The City’s Sixth Cycle Housing Element Process
For the 2021–2029 planning period (sixth cycle), the City’s
RHNA was 2,490 units, including 936 very low-income units, 508
low-income units, 490 moderate-income units, and 556 above-
moderate income units. The sixth cycle housing element deadline
was October 15, 2021.
The City submitted its initial draft housing element update
to HCD in July 2021, with several revisions submitted thereafter.
After exchanges of written findings from HCD concerning
deficiencies and two subsequent amendments to the housing
element, the City Council adopted a third amended housing
element in July 2022, one month after New Commune filed its
verified petition for writ of mandate. The City did not send the
third amended housing element to HCD prior to adopting it.
Contending it included “no changes in land use designations,” the
City did not ask its voters for approval. In September 2022, HCD
found the third amended housing element to be fully compliant
with the Housing Element Law.
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III. The City’s Residential Overlay Strategy
The City’s housing element uses a “residential overlay” to
satisfy the RHNA. The overlay here is superimposed over six
commercial and industrial districts to accommodate 1,470
residential units. The City’s overlay allows for residential use at
densities up to 55 dwelling units per acre.
IV. Key Sites: South Bay Marketplace and Inglewood
Avenue
As relevant to this appeal, the City’s housing element
identifies sites at the South Bay Marketplace and 4001 and 4051
Inglewood Avenue. These sites contain parking lots that service
retail tenants at shopping centers.
The South Bay Marketplace site consists of four parcels
that make up a “largely underutilized parking lot.” The housing
element identifies this site as able to support 486 lower-income
units and allow the existing parking use to remain. The City’s
outside expert determined that the housing proposed for the site
is physically and financially feasible. As part of its identification
and evaluation of the site, the City intended to communicate with
the owners of the site regarding redevelopment.
The Inglewood site supports 35 very low-income units and
140 above moderate-income units. The owner of the Inglewood
site confirmed in writing to the City that it would welcome high-
density residential housing on the site, and that it had experience
obtaining entitlements to build similar housing on other
properties it owns. Vons grocery store is a tenant on the site. The
lease between the property owner and Vons allows Vons, in its
“sole and absolute discretion,” to withhold consent to changes in
the part of the parking area in the contractually defined “Zone of
Control.” For changes to the part of the parking area outside the
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Zone of Control, Vons cannot “unreasonably” withhold, delay, or
condition consent.
V. Procedural History
In June 2022, before the City Council adopted the City’s
housing element, New Commune filed a petition for writ of
mandate and complaint for declaratory relief. New Commune is a
property owner in the City seeking to develop housing. After the
City’s housing element was adopted, New Commune amended its
petition and complaint to add allegations about the City’s
housing element.
The trial court denied the petition and complaint. On
February 9, 2024, the court entered judgment for the City. New
Commune timely appealed.
DISCUSSION
As a preliminary matter, except for HCD’s correspondence
to the City of Yorba Linda presented by the City, which we deem
to be irrelevant, we grant the requests for judicial notice from
New Commune, the City, and amicus curiae Yes In My Back
Yard. (Evid. Code, § 452, subds. (b), (d), (h).)
I. Standard of Review
Any interested party may bring an action for traditional
mandamus under Code of Civil Procedure section 1085 to ensure
a housing element’s conformity with the Housing Element Law.
(§§ 65583, subd. (h), 65587, subd. (b).)
Both trial and appellate courts review whether the housing
element “ ‘substantially complies’ ” with the requirements of the
Housing Element Law. Substantial compliance means “ ‘ “actual
compliance in respect to the substance essential to every
reasonable objective of the statute, as distinguished from mere
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technical imperfections of form.” ’ ” (Clovis, supra, 90 Cal.App.5th
at p. 237, italics omitted.) Appellate courts independently
determine whether the housing element complies with the
Housing Element Law without giving any deference to the trial
court. (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174,
1191.)
Where HCD has determined a housing element or
amendment substantially complies with the Housing Element
Law, the burden of proof shifts to the party challenging the
housing element to demonstrate that the presumption of validity
is incorrect. (Clovis, supra, 90 Cal.App.5th at p. 243; see
§ 65589.3, subd. (a) [presumption is rebuttable].)
II. Measure RB Moots the Charter Voter Approval
Challenge
Having established the legal framework for our review, we
turn first to New Commune’s contention that the City’s Sixth
Cycle 2021–2029 Draft Housing Element (the City’s housing
element) is invalid because the City’s voters did not approve it
under article XXVII, section 27.4 of the Charter. The trial court
agreed that the City’s housing element constituted a “major
change in allowable land use,” but determined that the state
Housing Element Law preempts the Charter’s voter approval
requirement.
We do not reach this issue because it is moot. After the
appeal was fully briefed, the City’s voters approved Measure RB.
As a result, the Charter now states that article XXVII, which
contains the requirement of voter approval for “major changes in
allowable land use,” does not apply to amendments to or updates
of the housing element of the City’s general plan. (Charter, art.
XXVII, § 27.6(h).)
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Because writs of mandate operate prospectively, we apply
the law currently in effect. (See Flores v. Department of
Transportation (2022) 76 Cal.App.5th 678, 681–683 [applying
revised statute while appeal was pending to suits for injunctive
and writ relief]; Citizens for Positive Growth & Preservation v.
City of Sacramento (2019) 43 Cal.App.5th 609, 626 [applying
current law at time of appellate court judgment in mandamus
proceedings].) Based on the amended Charter, amendments or
updates to the housing element do not require voter approval.
III. The City’s Residential Overlay Zone Violates the
Housing Element Law
New Commune argues that the City’s accommodation of
RHNA through a residential overlay fails to comply with the
Housing Element Law. After examining the overlay at issue and
the statutory framework, we conclude that the City’s residential
overlay violates the Housing Element Law for two independent
reasons. First, the overlay fails to satisfy section 65583.2(h)(2)’s
mandatory minimum density requirement of 20 units per acre
because the underlying commercial and industrial zoning permits
development of identified sites within the overlay zone that does
not include housing, i.e., that permits construction with zero
residential units. Second, the overlay violates section
65583.2(h)(2)’s requirement that at least 50 percent of lower-
income housing sites be “designated for residential use and for
which nonresidential uses or mixed uses are not permitted”
because it preserves underlying commercial and industrial uses
and fails to satisfy the mixed-use exception. We address each
reason in turn, then explain why HCD’s approval cannot override
these clear statutory violations.
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A. Section 65583.2(h)’s Minimum Density
Requirements Are Mandatory
The Fifth District’s decision in Clovis represents the first
and only published appellate analysis of section 65583.2(h)’s
minimum density requirements. The Clovis court determined
that “section 65583.2(h) clearly imposes a minimum density
requirement when a jurisdiction is required to rezone sites to
accommodate a shortfall for the current planning period . . . .”
(Clovis, supra, 90 Cal.App.5th at p. 244.) It rejected an overlay
superimposed on a residential zone that would have permitted
development below 20 units per acre. (Id. at p. 238.)
The parties devote significant space in their briefs to
discussing the merits of Clovis, with the City arguing that it was
incorrectly decided or distinguishable. Although it relies on the
mixed-use exception specifically, discussed in greater detail post,
the City argues generally that section 65583.2(h) allows an
overlay that merely permits, as opposed to requires, development
of at least 20 units per acre for sites identified to fulfill the unmet
need for lower income housing. We agree with Clovis that section
65583.2(h) is unambiguous and imposes a mandatory minimum
density requirement.
Statutory interpretation begins with a review of the
statute’s words, which are construed using their “usual and
ordinary meanings” and “in context.” (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1190.) The statute’s plain
language governs when the words are unambiguous and do not
reasonably permit any other construction. (Ibid.)
Section 65583.2, subdivision (h)(1), sets forth the
requirements for a rezoning program when the inventory of
available sites does not accommodate 100 percent of the
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identified need for lower income housing. Section 65583.2,
subdivision (h)(1) provides that sites accommodating the unmet
need “shall be zoned to permit owner-occupied and rental
multifamily residential use by right in which at least 20 percent
of the units are affordable to lower income households . . . .”
(§ 65583.2, subd. (h)(1).) Read alone, this subdivision could
support an argument that an overlay complies with the Housing
Element Law if it merely permits development of at least 20 units
per acre. But this section must be read in conjunction with
section 65583.2(h)(2), which provides that “[t]hese sites shall be
zoned with the minimum density and development standards”
and “shall be at least 20 units per acre” in suburban jurisdictions
like the City.
A housing overlay that allows development below the
“minimum” density requirements is inconsistent with the plain
language of section 65583.2(h)(2). “Minimum” means the least
acceptable quantity possible. (See Black’s Law Dict. (12th ed.
2024) [defining “minimum” as “[o]f, relating to, or constituting
the smallest acceptable or possible quantity in a given case”];
Merriam-Webster, at https://www.merriam-
webster.com/dictionary/minimum [defining “minimum” as “the
least quantity assignable, admissible, or possible”].) Courts
consistently interpret a statutory “minimum” as a floor below
which something cannot go. (See Shuts v. Covenant Holdco LLC
(2012) 208 Cal.App.4th 609, 620–621; Armenta v. Osmose, Inc.
(2005) 135 Cal.App.4th 314, 321, 324; Morse v. Industrial
Accident Commission (1951) 108 Cal.App.2d 355, 356.)
The City argues, though, that section 65583.2 cannot be
interpreted as requiring a mandatory minimum density of 20
dwelling units per acre on all sites because subdivision (h)(2)
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allows 50 percent of RHNA to be accommodated on sites that
permit other uses. It also argues mixed-use sites “cannot be
designated only for mixed-use projects” because section
65583.2(h)(2) “mandates that projects with 100 percent
residential be allowed” under the mixed-use exception.
Section 65583.2(h)(2) provides two mutually exclusive
options for site designation, neither of which is severable from
the mandatory minimum density requirements. Under the
default requirement, “[a]t least 50 percent of the lower income
housing need shall be accommodated on sites designated for
residential use and for which nonresidential uses or mixed uses
are not permitted.” (§ 65583.2(h)(2).) Alternatively, the mixed-use
exception permits jurisdictions to “accommodate all of the lower
income housing need on sites designated for mixed use” if those
sites “allow 100 percent residential use and require that
residential use occupy 50 percent of the total floor area of a
mixed-use project.” (Ibid.)
Although the phrase “sites designated for mixed use” is not
explicitly defined in the Housing Element Law, the parameters of
the phrase are inherent in the language of section 65583.2(h)
itself. “Mixed use” sites for purpose of the exception are those
that meet the minimum density requirements in subdivisions
(h)(1) (“at least 20 percent of the units are affordable to lower
income households”) and (h)(2) (“sites shall be zoned with
minimum density . . . at least 20 units per acre”) and are zoned
per subdivision (h)(2) to accommodate projects that may contain
both residential and nonresidential construction, provided that
residential use occupies no less than 50 percent, and up to 100
percent, of total floor area. The fact that residential construction
may comprise 100 percent of total floor area on a “sites
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designated for mixed use” does not suggest municipalities are
required or encouraged to zone sites with inconsistent use
designations.
“Sites designated for mixed use” are those that meet
minimum requirements to qualify under this exception, and not
those tied to a specific zoning regulation or use designation as
might appear in a local zoning ordinance. Generally, allowable
land “uses” and their geographic distribution are prescribed in
local zoning ordinances that must conform to the adopted general
plan in each municipality, including charter cities. (Neighborhood
Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176,
1183; § 65860.) Nothing in the statute suggests the Legislature
intended the Housing Element Law to require or permit a
municipality to effect land use changes potentially in conflict
with local zoning ordinances without engaging in the processes
such rezoning typically requires. We therefore disagree with the
City’s argument that subdivision (h)(2) requires or encourages
multiple inconsistent “uses” in a single zone.5
5 Given the uniformity requirements in the Planning and
Zoning Law, it would be difficult to read section 65583.2(h)(2) as
encouraging multiple inconsistent uses, as a matter of right, in a
single zone. Although not applicable to charter cities absent local
adoption of a uniform use requirement (§ 65803), section 65852
generally precludes the type of inconsistent land uses in a single
zone that the City is proposing to create with its overlay. Section
65852, however, is inapplicable to the City, and the parties have
not addressed whether the City’s Municipal Code or any zoning
ordinance permits inconsistent uses. For that reason, and
because we find the overlay at issue inconsistent with the
Housing Element Law, we do not reach the issue of whether the
overlay is inconsistent with any local law governing inconsistent
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To the extent that the language of section 65583.2(h)(2) is
ambiguous, we interpret the statute with an eye toward
effectuating its purpose and may look to legislative history and
public policy. (Prang v. Los Angeles County Assessment Appeals
Bd. (2024) 15 Cal.5th 1152, 1170.) The stated purpose of the
Housing Element Law and related legislative history also suggest
that the minimum density standards are a mandatory minimum
floor for site identification.
In enacting the Housing Element Law, the Legislature
prioritized the expansion of housing opportunities and the
attainment of housing for Californians of all economic levels.
(§ 65580, subds. (a), (b).) It found that providing affordable
housing “requires the cooperation of all levels of government.”
(Id., subd. (c).) It also determined that local and state
governments have a duty to “facilitate the improvement and
development of housing to make adequate provision for the
housing needs of all economic segments of the community.” (Id.,
subd. (d).)
To further these goals, the Legislature enacted the Housing
Element Law expressly to assure that local governments “will
prepare and implement housing elements which . . . will move
toward attainment of the state housing goal.” (§ 65581, subd. (b).)
The Housing Element Law “shall be construed consistent with,
and in promotion of, the statewide goal of a sufficient supply of
decent housing to meet the needs of all Californians.” (§ 65589,
subd. (d).)
Before 2017, the Housing Element Law allowed cities to
adopt housing elements without considering the realistic
uses, or, whether as a general matter, the form of overlay used
here runs afoul of section 65852.
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development potential of identified sites. At that time, section
65583.2, subdivision (c), required local governments to determine
whether the sites identified in the housing element could
accommodate some portion of their RHNA. Section 65583.2,
subdivision (c), did not address whether development would
realistically occur. Local governments were able to “circumvent”
their obligation to accommodate affordable housing by “relying on
sites that aren’t truly available or feasible for residential
development, especially multifamily development.” (Assem. Com.
on Housing and Community Development, Analysis of Assem.
Bill No. 1397 (2017–2018 Reg. Sess.) Apr. 17, 2017.)
This prompted the Legislature to enact Assembly Bill
No. 1397 (AB 1397) in 2017. This legislation amended section
65583.2, subdivision (c), to require local governments to
“determine whether each site in the inventory can accommodate
the development of some portion of its share of the regional
housing need by income level during the planning period . . . .”
(Stats. 2017, ch. 375, § 4, p. 91, italics added [adding “the
development of” to § 65583.2, subd. (c)].) Since the enactment of
AB 1397, housing element inventories must state the number of
units that can “realistically be accommodated” at each site and
whether the site “is adequate to accommodate lower-income
housing, moderate-income housing, or above moderate-income
housing.” (Stats. 2017, ch. 375, § 4, p. 91; compare § 65583.2,
subd. (c).)
AB 1397 codified the goal of the Housing Element Law,
which was not merely to require identification of sites that could
theoretically accommodate housing need, but to encourage
development to meet housing needs. (See Elmendorf et al.,
Making It Work: Legal Foundations for Administrative Reform of
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California’s Housing Framework (2020) 47 Ecology L.Q. 973, 992,
1030, fn. 308.)
Overlays that allow for development below the prescribed
density conflict with the Housing Element Law as modified by
AB 1397. AB 1397 was not the only legislative change designed to
clarify the Legislature’s intent that housing laws expand realistic
development opportunities or affordable lower income housing.
Assembly Bill No. 1690 (AB 1690), enacted in 2014, also
attempted to address this problem relative to the mixed-use
exception.
The purpose of AB 1690 was to allow local jurisdictions to
identify mixed-use sites to meet RHNA allocations for lower
income housing when existing sites were inadequate. (Assem.
Floor Analysis, 3d reading analysis of Assem. Bill No. 1690
(2013–2014 Reg. Sess.) May 14, 2014.) An early draft of the
legislation provided, “At least 50% of the very low- and low-
income housing need shall be accommodated on sites designated
for residential use or mixed-uses.” (Assem. Bill No. 1690 (2013–
2014 Reg. Sess.) as introduced Feb. 13, 2014.)
Subsequent analysis of the bill identified a concern that
“mixed-use zones . . . do not necessarily require mixed uses or the
inclusion of housing on the site,” which could result in
“commercial development occupying all or large portions of sites
needed for affordable housing.” (Sen. Transportation and Housing
Com., Analysis of Assem. Bill No. 1690 (2013–2014 Reg. Sess.)
June 24, 2014.) One suggestion to address this concern was to
“consider amending the bill to allow a city or county to
accommodate all of its very low- and low-income housing need on
sites designated for mixed uses only if those sites allow 100%
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residential use and require at least 50% residential floor area.”
(Ibid., bold omitted.) The Senate amended the bill as suggested.
Subsequent analysis in the Assembly also noted that lack
of a requirement for sites in mixed-use zones to include housing
“could result in commercial development occupying all or large
portions of sites needed for affordable housing.” (Assem. Floor
Analysis, Concurrence in Senate Amendments (2013–2014 Reg.
Sess.) Aug. 21, 2014.) Further, the Floor Analysis of the Senate’s
alterations to the bill stated: “As the rezoning program only
applies if a local government fails to identify adequate sites to
accommodate its RHNA share, it is especially important to
encourage the actual development of affordable housing in these
localities. With this in mind, the Senate amendments narrow the
bill’s original mixed-use zoning provision by only permitting
mixed-use sites that allow 100% residential use and require at
least 50% residential floor area.” (Ibid.)
This history evidences the Legislature’s intent to prevent
local jurisdictions from including in their housing element sites
that have little to no probability of being used to meet identified
housing needs. Subdivision (h)(2) must be construed in this
context to the extent it is ambiguous. (§ 65589, subd. (d).) This
undercuts the City’s argument that there is no requirement to
compel residential use on mixed-use project sites.
B. The City’s Overlay Does Not Comply With
Section 65583.2(h)
As explained above, section 65583.2(h)(2) provides two
mutually exclusive options for site designation, the default option
and mixed-use option, neither of which is severable from the
mandatory minimum density requirements. The City’s overlay
does not comply with any of these requirements.
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1. The overlay allows development with zero
residential units
The housing element at issue accommodates 1,223 lower-
income residential units through a residential overlay applied to
sites zoned for commercial and industrial use. The overlay allows
for a density of 55 dwelling units per acre. The overlay does not
eliminate the commercial and industrial base zoning on the
identified sites. The City’s housing element provides: “The
residential overlay will allow either the underlying use, the
residential use at a gross calculation of density, or both as a
mixed use site.” The question presented here is whether the
existing base zoning renders the overlay unlawful under section
65583.2.
New Commune argues that the overlay subverts the
purpose of the Housing Element Law by allowing the housing
element to identify sites that accommodate RHNA but that, in
actuality, may be developed without any residential component.
For this reason, New Commune argues that the housing element
fails to satisfy the applicable density requirement under section
65583.2, subdivision (c)(3)(B)(iii) [“at least 20 units per acre”].
We agree with New Commune. Clovis held that overlays
are unlawful when they allow development below the statutory
minimum density. The City argues that Clovis was incorrectly
decided or distinguishable because, unlike the overlay here, the
overlay in Clovis was superimposed over residential base zoning.
The City also emphasizes that the overlay here “is applied to
existing older industrial and commercial uses that are ripe for
redevelopment.” These distinctions are insignificant. The Clovis
court found that “section 65583.2(h) clearly imposes a minimum
density requirement when a jurisdiction is required to rezone
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sites to accommodate a shortfall for the current planning
period . . . .” (Clovis, supra, 90 Cal.App.5th at p. 244.) This is
consistent with our interpretation of section 65583.2(h).
The City’s overlay is inconsistent with the mandatory
minimum density requirements because it allows development on
identified sites without requiring any residential construction,
i.e., it allows for construction with zero residential units.
2. The overlay does not comply with the
default requirements or mixed-use
exception in section 65583.2(h)(2)
In addition to the minimum density standard at issue in
Clovis, section 65583.2(h)(2) separately requires that at least 50
percent of lower income housing sites be “designated for
residential use and for which nonresidential uses or mixed uses
are not permitted.” The exception to this requirement is that a
city may accommodate all its lower income housing need on
mixed-use sites.
The City’s overlay fails because it cannot satisfy any of
these requirements.
Section 65583.2(h)(2) establishes that “At least 50 percent
of the lower income housing need shall be accommodated on sites
designated for residential use and for which nonresidential uses
or mixed uses are not permitted . . . .” (Italics added.) The phrase
“not permitted” constitutes an absolute prohibition. “Not
permitted” means forbidden, prohibited, or eliminated entirely.
(See Black’s Law Dict. (12th ed. 2024) [defining “not permitted”
as “forbidden by law or regulation”].)
The City’s overlay preserves underlying commercial and
industrial zoning that expressly permits nonresidential uses
including retail, office, manufacturing, and warehousing. Because
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the statute requires that certain uses be proscribed, i.e., “not
permitted,” an overlay that preserves those uses does not comply
with subdivision (h)(2). The City cannot simultaneously permit
and prohibit a particular use on a single site. Because the City’s
overlay maintains commercial and industrial zoning rights that
section 65583.2(h)(2) requires be eliminated, the overlay fails as a
matter of law.
Likewise, the City’s overlay cannot qualify for the mixed-
use exception. By preserving the underlying commercial and
industrial zoning, thereby allowing future development without
any residential component, the overlay fails to meet the
requirement that residential use occupy no less than 50 percent,
and up to 100 percent, of total floor area of projects on the
designated sites.
These are independent bases for invalidating the City’s
housing element, separate from the minimum density violations
discussed above.
3. Statutory violations cannot be cured by
HCD approval
The City contends that we should defer to HCD, the agency
that enforces the Housing Element Law. According to the City,
HCD’s guidance concerning overlay zoning further supports the
presumption of validity arising from HCD’s approval of the City’s
housing element pursuant to section 65589.3. HCD’s “Housing
Element Site Inventory Guidebook” refers explicitly to the use of
overlays to support lower income housing.
Courts “accord significant weight and respect to the long-
standing construction of a law by the agency charged with its
enforcement.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1082,
overruled on other grounds in In re Lawrence (2008) 44 Cal.4th
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1181, 1191.) But courts “remain the final arbiters of statutory
meaning.” (Center for Biological Diversity, Inc. v. Public Utilities
Com. (2025) 18 Cal.5th 293, 303.) While HCD has specific
statutory authority under section 65583, subdivision (a), to
develop definitions, standards, and forms for housing elements,
this authority does not extend to rewriting statutory
requirements. Even when an agency has enhanced statutory
authority, courts independently interpret clear legislative
mandates rather than defer to agency interpretations that
conflict with plain statutory language. (Riddick v. City of Malibu
(2024) 99 Cal.App.5th 956, 968.)
As we have discussed at length above, there is nothing
ambiguous about the word “minimum” in section 65583.2(h)(2). It
is not clear that HCD’s guidelines conflict with this reading
merely because they provide that overlay zones may be used to
“ensure maximum allowable densities can be achieved.” For
example, HCD’s guidance also provides that development
standards, such as height limits and required commercial use on
ground floors in mixed-use projects, must still “allow for the
density allowed under the overlay.” But to the extent that HCD’s
guidance conflicts with the minimum density requirements
articulated in the statute, it is not entitled to deference.
Section 65583.2(h)(2) also clearly declares that
nonresidential uses are “not permitted,” except to the extent the
mixed-use exception applies. The overlay here permits
nonresidential uses on sites designated to accommodate more
than 50 percent of the unmet lower income housing need, without
also meeting the mixed-use exception requirements, in
contravention of section 65583.2(h)(2). To the extent HCD’s
guidelines support this type of overlay, they are contrary to law
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and not entitled to deference. HCD’s approval of the housing
element here does not cure the myriad defects we have identified.
That is, although there is a rebuttable presumption here
that the City’s housing element is valid (§ 65589.3), New
Commune has met its burden to show that the element is
unlawful.
We recognize the City expended significant time and
energy preparing the housing element and responding to HCD
findings. We also recognize the potential practical problems
inherent in rezoning. But the Legislature has established
minimum density requirements and cabined the discretion of
local jurisdictions to prevent them from overriding those
requirements. We decline the invitation to reconsider the wisdom
or practicality of this approach.
For these reasons, we find that the City’s housing element
does not substantially comply with the Housing Element Law.
New Commune is entitled to a writ of mandate directing the City
to develop a housing element that complies with section
65583.2(h)(2).
IV. Identified Nonvacant Sites
Having determined that the overlay zone fails to comply
with statutory requirements, we turn to New Commune’s
challenge to individual identified sites. At least one of the
identified nonvacant sites was not properly identified as a
developable site.
A. Legal Standard for Nonvacant Sites
Housing elements must contain an “inventory of land
suitable and available for residential development, including
vacant sites and sites having realistic and demonstrated
potential for redevelopment during the planning period to meet
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the locality’s housing need for a designated income level . . . .”
(§ 65583, subd. (a)(3).) HCD’s guidelines define “vacant site” as “a
site without any houses, offices, buildings, or other significant
improvements on it.” Development of the land or the addition of
permanent structures on the property constitute improvements.
In identifying sites, cities must consider “the extent to
which existing uses may constitute an impediment to additional
residential development” and “any existing leases or other
contracts that would perpetuate the existing use or prevent
redevelopment of the site for additional residential development.”
(§ 65583.2, subd. (g)(1).) When a city uses nonvacant sites to
satisfy more than 50 percent of the lower income housing need,
cities must “demonstrate that the existing use . . . does not
constitute an impediment to additional residential development
during the period covered by the housing element.” (Id., subd.
(g)(2).) An existing use is presumed to impede additional
residential development, “absent findings based on substantial
evidence that the use is likely to be discontinued during the
planning period.” (Ibid.) Substantial evidence is reasonable,
relevant, and credible evidence of solid value which “a reasonable
mind might accept as adequate to support a conclusion.”
(California Youth Authority v. State Personnel Bd. (2002) 104
Cal.App.4th 575, 584–585.)
It is undisputed that the City claims to accommodate more
than 50 percent of the lower income housing need using
nonvacant sites. The City has an RHNA obligation of 936 very
low-income units and 508 low-income units for a total of 1,444
lower income housing units. The City has approved 50 units at
vacant sites and projects the construction of 144 accessory
dwelling units for a total of 194 vacant sites. The City seeks to
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accommodate the remaining allocation—more than half of the
lower income housing need— using nonvacant sites. New
Commune specifically challenges the identified sites at South
Bay Marketplace and 4001/4051 Inglewood Avenue.6
B. Identification of South Bay Marketplace Is
Supported By Substantial Evidence
According to the City’s housing element, the overlay at
South Bay Marketplace consists of four parcels of land
comprising a parking lot. The parking lot currently serves retail
tenants at the marketplace. The City contends that the site can
accommodate a total of 486 lower income housing units.
New Commune faults the City for not having confirmed
with the property owners that the site is free from any lease
requirements and that the property owners would agree to the
development of housing on their properties. In support of these
assertions, New Commune refers to the City housing element’s
statement that the City “will engage” with its economic
development agency to “facilitate direct and targeted
communications with property owners” concerning
redevelopment.
6 Petitioners do not specifically address other sites, instead
contending that “numerous” other sites suffer from “similar
issues.” The appellant bears the burden of demonstrating the
error in the trial court judgment. (Hernandez v. California
Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
Because petitioners do not present any argument or citation to
the record concerning other nonvacant sites, they have waived
any challenge to those sites. (Employers Mutual Casualty Co. v.
Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th 340,
351–352.)
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The City’s housing element states that the site is a “largely
underutilized parking lot” for the South Bay Marketplace which
“does not support other off-site uses.” The City’s housing element
also states that residential development on the site would not
require displacement of existing uses because the parcels
composing the site are separate from parcels with existing
structures.
Further, the City retained an expert who assessed the
feasibility of developing 486 units of very low-income housing on
the site. The expert determined that even incorporating existing
parking requirements into the construction, the development is
physically feasible. The expert also determined that the proposed
development is financially feasible with common sources of
funding for affordable housing projects, including tax credits,
grants, and loans. While the City has not confirmed the property
owners’ willingness to allow development on the site, the expert
reviewed affordable housing projects in nearby cities and opined
that such projects “routinely support land values per acre” which
are “sufficient to induce development” of the proposed housing.
Based on the current underutilization of the site, as well as
the physical and financial feasibility found by the expert, the City
presents substantial evidence that the existing parking on the
site will be discontinued and not impede the development of
lower income housing. Because HCD determined the City’s
housing element was valid, there is a presumption of validity
that New Commune bears the burden to rebut. (See West
Washington Properties, LLC v. Department of Transportation
(2012) 210 Cal.App.4th 1136, 1144; Clovis, supra, 90 Cal.App.5th
at p. 243.) New Commune has not demonstrated that
development of lower income housing on the site is physically or
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financially infeasible. Accordingly, we cannot find that the City’s
identification of the South Bay Marketplace site to accommodate
lower income housing was invalid.
C. Identification of Inglewood Avenue Sites Is Not
Supported By Substantial Evidence
The City’s housing element also includes 4001 and 4051
Inglewood Avenue, which are currently leased by, among other
retail establishments, a Vons grocery store. The City claims that
the sites have the potential to accommodate 35 very low-income
units and 140 above moderate-income units. In support of this
claim, the City refers to a letter from the property owner
indicating that it would welcome development of high-density
residential housing on the site. The property owner also provided
examples of other properties where it has incorporated
residential housing into commercial property.
New Commune, however, demonstrates that limitations on
the site impede the development of housing. According to the
lease between the property owner and Vons, the “Common Area”
includes the parking areas within the “Zone of Control.” The
lease restricts the landlord from changing the Common Area
without Vons’s written consent; Vons has “sole and absolute
discretion” to withhold consent. In other words, Vons has the
absolute right to veto the development of housing on the site.
The City contends that another portion of the lease
provides that Vons cannot “unreasonably” withhold, delay, or
condition its consent. While true, the provision pertains to the
Common Area outside the Zone of Control. The plan of the site
indicates that at least half of the parking area is in the Zone of
Control.
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The City otherwise presents no evidence that Vons would
consent to the development of housing in the Zone of Control, or
that the land outside the Zone of Control could accommodate the
number of units claimed by the City in its housing element. The
City has not presented substantial evidence that Vons will
discontinue its existing use on the Inglewood Avenue site or that
this use will not impede the development of housing. This failure
also supports reversal on appeal.
V. Issues Not Addressed On Appeal
Having determined that the housing element must be
revised to address the violations identified above, we do not reach
the issue of whether the City could lawfully adopt its housing
element before HCD determined the draft plan substantially
complied with the Housing Element Law. We also note that after
judgment was entered in the trial court, the Legislature enacted
Assembly Bill No. 1886, which added section 65585.03 to the
Government Code. This statute dictates when a housing element,
or amendment to a housing element, is in substantial compliance
with the Housing Element Law. These procedural issues are
preserved for consideration below should they be relevant to
further review of any amended or revised housing element.
We also do not reach amicus curiae’s argument that the
City’s housing element does not affirmatively further fair
housing, as required by sections 65583, subdivision (c)(1) and
8899.50, subdivision (a)(1). Because this issue was first raised by
amicus curiae and not raised by New Commune, we decline to
address it. (California Building Industry Assn. v. State Water
Resources Control Bd. (2018) 4 Cal.5th 1032, 1048, fn. 12.)
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DISPOSITION
The judgment is reversed. On remand, the trial court is
directed to vacate its order denying New Commune’s petition and
to issue in its place a writ of mandate compelling the City to
revise its Sixth Cycle 2021–2029 Draft Housing Element
consistent with this opinion. New Commune is entitled to recover
its costs on appeal.
CERTIFIED FOR PUBLICATION
KLATCHKO, J.*
We concur:
EGERTON, Acting P. J.
ADAMS, J.
* Judge of the Riverside County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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