Santa Monica’s failure to meet state housing requirements continues to generate legal headaches for the city with a pending lawsuit alleging developers should be able to build projects at higher density than currently allowed.

The Santa Monica Housing Council (SMHC) alongside two residents (William T. Dawson and Irma Vargas) have accused city officials of failing to adhere to state mandated housing laws in the recently adopted housing element. The lawsuit alleges the City’s housing element fails to provide enough sites for future development and doesn’t do enough to account for high density projects. The plaintiffs are asking the court to mandate increases in height and density limits for new projects.

The lawsuit originally contained arguments regarding the city’s failure to adopt the housing element on time and while Council initially failed to adopt the element by required deadlines (leading to the city losing control over about 4,500 new units), it did adopt the required document late last year.

Housing elements are adopted in eight-year cycles. Cities within what’s known as the Southern California Association of Governments are in the early stages of the sixth cycle of the housing element process (from 2021 to 2029) and the requirements of the Regional Housing Needs Assessment (RHNA) have been significantly higher than previous cycles due to California’s chronic shortage of housing. For the sixth cycle, the City of Santa Monica’s RHNA allocation is 8,895 units compared to the City’s prior, fifth cycle (from 2013 to 2021) allocation of 1,674 units.

While adoption voided parts of the current lawsuit, the plaintiffs contend their allegations over density bonuses remains valid and should be adjudicated by the court.

The lawsuit contends developers should be eligible for up to a 50% increase in density on top of any increases the city provides beyond its established zoning codes because state law guarantees developers a set of density bonuses above and beyond any bonuses or formulas applied at the local level.

Santa Monica has a tiered system for new development with differing density bonuses available depending on the size of the project and the amount of below-market rate housing included. According to the plaintiff, the City is claiming its tier system incorporates those state bonuses. But the plaintiff’s contention is it cannot incorporate those state bonuses and that by definition, the state bonuses are always additive to anything that a local municipality has created.

Kenneth Kutcher, attorney for the SMHC said, “I would say it’s black and white, because one of the programs in their housing element says they will bring their own local density bonus ordinance into compliance with state law. That makes it crystal clear that they agree it’s not in compliance with state law. It may be a matter of degree, there may be arguments about what they need to do. I’m sure there are. The two of us don’t see eye to eye on, but they’ve been clear that they were out of compliance.”

A statement from Santa Monica City Council said, “This lawsuit originally challenged both the adequacy of the City’s 6th Cycle Housing Element (2021-2029) and its failure to comply with state density bonus law. The Plaintiff dismissed their claims regarding the 6th Cycle Housing Element as moot, after the Department of Housing and Community Development certified the City’s 6th Cycle Housing Element. The City anticipates that the remaining claim will also be mooted due to the City’s on-going implementation of the 6th Cycle Housing Element.”

A trial date is currently scheduled for June 30, 2023.

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Scott Snowden

Scott fell in love with Santa Monica when he was much younger and now, after living and working in five different countries, he has returned. He's written for the likes of the FT, NBC, the BBC and CNN.