Land Use Litigation

In 2021, the West Coast Land Use and Environmental Group further cemented Holland & Knight’s position as one of California’s preeminent land use litigation firms, most prominently winning a published opinion that is now a leading authority on California’s Housing Accountability Act (HAA). The team is a “double threat” on both sides of the courtroom: adept at representing and defending project approvals from attack, as well as going on offense by representing pro-housing plaintiffs suing to secure necessary approvals for much-needed housing. For these reasons, in the U.S. News – Best Lawyers 2022 “Best Law Firms” guide, Holland & Knight was recognized with a metropolitan “first-tier” ranking in San Francisco for land use litigation and environmental litigation to accompany the firm’s national “Law Firm of the Year” designation for Land Use and Zoning Law.

Holland & Knight became the first litigation team in the state to secure approval of a housing project through litigation under SB 35 – a new, groundbreaking law that provides fast-tracked, ministerial permitting for qualifying housing and mixed-use developments.

After property owners in Los Altos tried for more than five years to develop a downtown site without success, the Holland & Knight team prepared an application to seek ministerial approval through SB 35 for a 29,566-square-foot, 66-foot-tall, mixed-use project that will include first-floor office space and a mix of marketrate and below-market-rate housing above.

The team also invoked the State Density Bonus Law to seek increased building height in exchange for belowmarket units. Although the project qualified for ministerial approval, the city rejected the application, making litigation necessary.

The Los Altos Superior Court agreed with the Holland & Knight team’s arguments that the city was required to approve the project, and further found that the city’s unlawful decision to disapprove the project violated the HAA. When the city tried to appeal, the Holland & Knight team invoked the HAA’s bond provisions by requiring the city to post a bond to cover the costs that this further delay would have imposed on the developer. In the end, the city abandoned its appeal, approved the project and paid Holland & Knight’s client for the costs of the city’s delay as well as the attorney’s fees that the client expended litigating the case.

WINNING HOUSING LAWSUIT FOR CaRLA AGAINST CITY OF SAN MATEO

Holland & Knight team members won a precedent-setting housing victory with a September 2021 published opinion by the First District Court of Appeal affirming the enforceability and constitutionality of the state’s HAA.

Holland & Knight represented the California Renters Legal Advocacy and Education Fund (CaRLA) in a suit against the City of San Mateo after the city disapproved an apartment building with 10 homes, claiming that the development violated the city’s discretionary design guidelines. The project was previously deemed fully code-compliant by the city’s staff, but neighbors vocally opposed it. The HAA forbids cities from disapproving housing for these kinds of subjective reasons, but when CaRLA sued to enforce the law, a trial court judge deferred to the city and even concluded that the HAA was beyond the constitutional authority of the legislature to enact.

The Holland & Knight team took the case on appeal and won a “clean sweep” reversal with a unanimous ruling that found in favor of housing advocates on all of their statutory arguments and rejected three different constitutional arguments advanced by housing opponents that would have crippled the HAA. The result is a court of appeal opinion that is now the leading published authority on California’s HAA, affirming that that the HAA’s “mandates are to be taken seriously” as “strong medicine” needed to heal a “sick patient” – California’s housing crisis. The opinion makes it clear that cities cannot simply adopt plans for housing – they must also approve the housing for which they have planned – and will be a key to securing housing approvals in the future.