Thread by @CSElmendorf

Look at @California_HCD's Housing Accountability Unit, starting strong!
So much to like in the letter they just sent to San Francisco about the apparent CEQA-laundered denial of 469 Stevenson St. project. 1/14

https://twitter.com/Scott_Wiener/status/1462913408584478721

As I've explained previously, the Board might be thought to have evaded the Housing Accountability Act by relying on CEQA to stall project indefinitely (rather than deny it outright). 2/

But the HAA defines "disapproval" broadly to include an adverse "vote" on any "approval" or "entitlement" that's needed before shovels hit the dirt. A vote overturning a legally sufficient EIR is plausibly "disapproval" w/in meaning of HAA. 3/

The HAU's letter nails this, calling the vote an "effective denial" and pointing to the HAA's board definition of disapproval. 4/

Letter then cites @ONeillMoiraK et al. study showing that SF is a serious outlier w/r/t project entitlement timeframes & says city must address this in next housing element -- including by documenting how city will comply w/timeframes under state law. 5/ papers.ssrn.com/sol3/papers.cf…

Rubbing city's face in it, letter also quotes loosy-goosey noncommitments made in SF's 5th cycle HE to streamline permitting. Implication is that more of same won't cut it for the 6th. 6/

Finally, letter notes that the other recent high-profile denial in SF (450-474 O'Farrell) may have violated the "5 Hearing Rule" of SB 330. I've been skeptical that this provision of SB 330 would make a difference, since bill didn't provide a remedy for violations. 7/

But if cities think that @California_HCD is on the hunt for 5-hearing violations, they may get in line -- if only to avoid greater scrutiny of their housing element or investigation of their project-approval process. 8/

HCD is asking SF to provide written findings explaining decisions w/in 30 days. That's reasonable.
My only quibble is that letter should have stated that those findings may only ***elaborate on what was said at the hearing & reference evidence in record at hearing.*** 9/

If city tries to clean up its probably-unlawful votes with a statement of reasons that relies on new theories and evidence, that's a post-hoc rationalization, which is an administrative law no-no. 10/

The admin law norm against post-hoc rationalizations is admittedly weird in most contexts, since standard judicial remedy for admin-law violation is remand for a do-over -- which is an invitation for a post-hoc rationalization. 11/

But the norm makes a ton of sense in context of HAA, which authorizes court ***to order the project approved,*** not just remand for a do-over. 12/

Much more coming soon! @TDuncheon & I will be blogging next week about the CEQA-HAA conflict at sloglaw.org. Stay tuned. @SlogLawBlog /13

Meanwhile, congrats to @ShannanWestCA, @GVelasquez72, @Jason_Elliott, & @GavinNewsom for the HAU's strong start! 14/end

@SFjkdineen @hknightsf @MatteFleischer