First published in the May 21 print issue of the Burbank Leader.
A developer has sued the city of Burbank, alleging the City Council broke state law when it voted to deny his proposal to build townhomes on the Pickwick Bowl property.
The lawsuit, filed earlier this month by Laguna Beach developer Matthew Waken, argues that the council was wrong in deciding that the project wasn’t eligible for California Senate Bill 35. The controversial law, which aims to address the state’s housing crisis by making it easier for developers to build housing projects with affordable components, requires cities to approve certain residential constructions that meet their building regulations.
But on April 18, the City Council unanimously agreed that Waken’s project did not meet the requirements of SB 35, saying the city’s housing laws didn’t allow residential units to be built at the Pickwick site.
In an initial court filing, Waken’s attorneys argued that the city “acted in bad faith” and was “knowingly and willingly in violation of state housing law.” They pointed out that both the city’s Community Development Department and the state Department of Housing and Community Development told the council that the project qualified for SB 35’s provisions.
“The City Council’s action is yet another example of how local governments abuse their position to deny housing to the detriment of the state of California,” the attorneys said in the filing. “The state’s housing crisis is the collective result of this political self-preservation, played out again and again across the state.”
The project would have built 96 condominium units at the Pickwick Bowl site, 10 of which the developer would reserve for low-income households. Because Burbank, like the vast majority of cities in California, did not meet its state-mandated housing goals, construction applicants can submit their projects under SB 35’s provisions.
Besides asking a judge to overrule the City Council’s decision, the developer is requesting Burbank face fines outlined under state law. Those potential fines include a minimum of $10,000 per housing unit for a total of nearly $1 million, though city staff members have indicated they could be higher.
Burbank’s Rancho neighborhood, in which the Pickwick property is located, adamantly opposes the project, arguing it would increase traffic and endanger the equestrian community there. The project’s opponents — both in the neighborhood and on the council — also said the city’s municipal code indicated that housing could not be built on that site. For a project to be eligible for SB 35’s provisions, it must be built in a residential zone.
But local and state development agencies pointed to a provision in California law giving precedence to cities’ general plans, or guiding housing documents. Burbank’s general plan notes that housing can be built on the Pickwick site, and the municipal code contains a table — referencing the general plan — indicating the same.
Waken’s representatives argued in the court filing that the council made its decision out of a “desire to appease existing homeowners.” Andrew Sabey, one of the attorneys representing Waken, also said in an email to the Leader that the city aimed to send a “message” to Sacramento affirming its opposition to recently passed housing laws.
“In many ways, the project was collateral damage in the City Council’s effort to send that misguided message to lawmakers and housing agencies in Sacramento,” Sabey said. “We are confident that the court will agree with our position, but it truly is a shame that applicants for housing projects have to run this gauntlet. Burbank’s action is a stark reminder why housing is so scarce and so expensive in California.”
Joe McDougall, Burbank’s city attorney, did not respond to a request for comment this week.
Waken’s move appears a reversal from his team’s earlier statements. An attorney representing the developer indicated during the council’s April meeting that the city could face a lawsuit if it denied the project. But after several residents at the meeting accused the developer of threatening Burbank, the attorney said that he meant that pro-housing organizations might sue the city.
At the time, some council members expressed concern that the city could indeed face a lawsuit. They agreed that Burbank needs more housing, but said they did not believe the city’s laws allowed residential units at the Pickwick property.
Still, Vice Mayor Konstantine Anthony said in April, “If a judge overrules that, you’re going to see these same council members vote very differently if there’s a fine attached to it.”