A pro-housing group is challenging the viability of the state-approved housing plan filed by the city of Orange, saying the plan fails to show how more than 3,000 needed homes will get built on land where current deed restrictions allegedly forbid development.
The litigation comes as the city is dealing with four “builder’s remedy” applications seeking construction of 696 new homes on non-residential sites in the city. Under the 1990 builder’s remedy provision, the developments don’t need to comply with the city’s zoning rules because the applications were filed before the state certified the city’s housing plan on Jan. 2.
The Feb. 28 lawsuit, filed in Orange County Superior Court by the Realtor-backed Californians for Homeownership, seeks a court order forcing Orange to revise its plan, or “housing element,” saying the city is relying on the redevelopment of mall parking lots and other parcels that have restrictions preventing such use.
“The city’s housing element relies on non-vacant sites to satisfy over 50% of the city’s lower-income (housing goals),” the lawsuit said. “The city did not (provide) substantial evidence that (the existing) uses are likely to be discontinued.”
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Under long-standing state housing laws, Orange’s new housing plan must include a list of sites where 3,936 new homes can be built by the end of the decade. At least 1,671 of those homes must be affordable for low-income residents.
State housing officials raised questions about the Orange plan over deed restrictions on some Orange sites last spring, but later approved the city’s plan after the Orange officials provided “additional owner outreach (and) updated analysis,” according to state records.
The lawsuit contends that the city must prove those sites truly can be redeveloped before the current plan expires in October 2029.
“I don’t know whether these sites are good or bad. What I do know is that the city has not produced the evidence … to demonstrate whether or not (the parcels are) good or bad,” said Matthew Gelfand, Californians for Homeownership attorney. “And without that evidence, that housing element is not substantially compliant with state law.”
See also: Realtor-affiliated group sues six cities for failing to adopt new housing plans
Californians for Homeownership, which has filed 21 lawsuits challenging local housing plans throughout California, accused the city of including nine encumbered parcels in its housing plan without proof that existing uses will be discontinued this decade. Those sites account for 3,079 of the 3,936 new homes the city is required to include in its plan.
According to Californians for Homeownership, the sites include:
— Parking lots at the Outlets of Orange mall, subject to a recorded declaration maintaining them as parking lots through 2047.
— Parcels at the City Town Center on Chapman Avenue that a recorded declaration commits to retail for 65 years.
— Parcels at the Stadium Promenade and Century Stadium shopping centers on Katella Avenue that are subject to covenants barring residential use at least through 2044.
Orange City Attorney Mike Vigliotta declined to comment about ongoing litigation.
A spokeswoman said Monday, April 22, that the state Housing and Community Development Department also can’t comment on pending litigation.
But in its Jan. 2 letter approving the Orange housing plan, the state housing department said the city’s updated plan showed shopping mall owners are interested in redeveloping the sites included in the Orange plan.
The state’s “finding of compliance was based on … additional owner outreach, updated analysis and … amended programs required to demonstrate (the city’s plan) has adequate (housing) sites,” the letter said. The letter added that the city will “consult with developer groups to analyze the impact of property encumbrances on the potential for new development within the planning period.”
Gelfand believes, however, that the city needs to provide evidence that goes beyond verbal assurances that the sites can be redeveloped during the current plan period. The lawsuit seeks to compel the city to produce that evidence.
“Our goal is … to have the city come forward and actually demonstrate that these sites are available (for housing),” Gelfand said. “Our big focus is on what evidence the city has that (existing uses on) these sites are likely to be discontinued by the end of the planning period.”
See also: Housing developers win first ‘builders remedy’ battles in fight to bypass local zoning
Meanwhile, Orange racked up four builder’s remedy applications filed before the Orange plan won state approval, meaning the developers don’t have to comply with the city’s general plan and zoning laws.
The applications include:
— Integral Communities: 209 townhomes and accessory dwelling units at the back of the Village of Orange mall.
— Stonefield Development: 138 apartments in 11 three-story buildings plus a self-storage building at the “Chapman-Yorba” site along Santiago Creek.
— Milan REI X LLC, an affiliate of Milan Capital Management: 118 townhomes at the Mara Brandman Horse Arena on East Santiago Canyon Boulevard.
— Milan REI X LLC: 231 houses, townhomes and apartments at the Sully-Miller sand and gravel quarry across the street from the horse arena for a project dubbed Creekside Village.
“This is a SB 330/builder’s remedy project,” the Creekside Village application said. “Therefore, the city’s zoning ordinance for this site is not applicable.”
But city planners have drafted long laundry lists of corrections needed before any of those plans can move forward. In three of those plans, the city still requires the developers to get a zoning change and general plan amendment despite the builder’s remedy.
The city’s assertion is similar to those struck down recently by Los Angeles County judges in builder’s remedy cases filed against the cities of Los Angeles and La Cañada Flintridge.
“Right now, they’re saying that we still need to file a zone change and a general plan amendment,” said John Stanek, a partner at Integral Communities. “My legal team’s preparing a response.”
UPDATE: This post was revised to correct the number of units affected by allegedly encumbered parcels included in Orange’s housing plan. According to Californians for Homeownership, those sites account for 3,079 of the 3,936 new homes the city is required to include in its plan.
