A California attorney specializing in housing law says that unless the city of Fresno can overwhelmingly demonstrate a proposed luxury apartment complex violates city code, it will be hard-pressed to defeat the developer’s lawsuit.

The Fresno City Council in July rejected developer James Huelskamp’s plan to build a 4-story luxury apartment complex in northwest Fresno.

Neighbors of the project came out in force against the project, saying, among other things, it would bring too much traffic to the area. Others, including Fresno County Sheriff John Zanoni, said the apartments could bring unwanted residents to the area near the school.

After getting his project denied, Huelskamp sued the city, saying the council’s actions violated state housing laws.

Related Story: Developers Sue City for Denying NW Fresno 4-Story Apartment Complex

“The ruling won’t favor the city,” Huelskamp predicted to GV Wire.

Attorney Ryan Patterson, who has offices in San Francisco and L.A., specializes in getting complicated housing projects approved. He says the city is unlikely to win the lawsuit. Furthermore, a ruling against the city could cost Fresno taxpayers millions in penalties and attorney fees. The case could have wider implications as well. Patterson isn’t affiliated with Huelskamp’s lawsuit over the project.

Huelskamp’s attorneys argue that because the council reversed a decision made by city staff, the developer should have been notified in advance.

Patterson said that makes the case unique, especially for builders who have to abide by strict deadlines.

“When a developer misses a deadline, cities are quick to hold the developer responsible for that,” Patterson said. “And now, we’ll see what happens when a city misses a deadline.”

Hard for Cities to Deny Projects Deemed Compliant: Patterson

Patterson has argued plenty of cases involving California’s Housing Accountability Act — the law cited by Huelskamp’s attorney.

Even before housing projects get built, the planning process can be extraordinarily expensive. The 1982 law was California’s way to give builders some certainty and predictability when it comes to housing projects, Patterson said.

The accountability act severely limits a city’s ability to deny housing projects that meet zoning requirements.

“If the application is deemed compliant, it’s very hard for the city to deny that application,” Patterson said.

Huelskamp’s project met the city’s height, parking, green space, and density requirements. The only thing it didn’t meet was the minimum distance of the project’s largest building from the street. But city staff said the distance was minor and an exception was given.

But the city didn’t tell him there was an issue with the exception until the day of the meeting. Huelskamp’s attorneys say if the council wanted to change its mind on granting the exception, the law says it should have given the builder the required 30-day’s notice.

Patterson said interpreting housing law that way could mean the project qualifies even without the exception.

“The city’s failure to meet the timelines has a consequence in state law,” Patterson said. “Even if the project did not meet the 75-foot requirement, it would be excused from meeting that requirement if it qualifies for the minor deviation that staff determined the project does qualify for.”

Related Story: Council Rejects Luxury NW Fresno Apartment Project. What’s Next?

Negative Ruling Could Cost City Millions

In many cases involving the accountability act, courts will simply tell cities to give the project another hearing, Patterson said. But if a plaintiff can show a city acted in bad faith, it’s not uncommon for a court to simply skip that step and give the project a green light.

For a judge, attorneys only need to show that the city knew it was violating the law when it denied the housing project to prove bad faith. In a line of questions between Fresno City Councilmember Miguel Arias and City Attorney Andrew Janz in the July meeting, Janz said the project met all of the city’s requirements.

Fresno City Manager Georgeanne White said because the project met all the requirements, city administration supported the project.

“It’s our job to comply with our city planning, zoning rules and state and federal law,” White said during the meeting.

In addition to greenlighting the project, courts can also impose penalties. While Patterson said courts are typically reluctant to do so, cities can be fined up to $50,000 for each unit denied.

For an 82-unit complex, that could be a $4.1 million penalty. Cities often also have to cover a developer’s attorney fees.

“Our firm has recovered attorney fees in these cases a number of times, plus multiplier awards,” Patterson said.

Public Comments Do Not Help City’s Case

Huelskamp’s lawsuit cites public comments and letters opposed to the project that said the apartment could bring increased crime. One comment said that “while I am not opposed to giving those people who need low income housing a break, it should be done in the correct neighborhoods.”

Sheriff Zanoni said during his comment that “this is an open invite for people to take residence in one of these apartments and have easy access to monitor our children.”

Patterson said those comments are “not a good look.”

Even private citizens arguing against an apartment project on the basis of prejudice reflects on a city council that denies an application, the attorney said.

“The sheriff’s statements about apartment residents being inherently predators is outrageous,” Patterson said. “Those statements are only going to hurt the city’s position here, because they reveal prejudice in the city’s decision making.”

Could Affordable Housing Be a Reality in Northwest Fresno?

Fresno developer Terance Frazier told GV Wire that the empty land at Herndon and Prospect avenues owned by Huelskamp would be perfect for affordable housing. He said he gave Huelskamp an offer to buy the land.

“We’re in a housing shortage,” Frazier said. “So hopefully one of these days, Jim will decide he’ll go ahead and sell it to me, and we’ll put up as many affordable units out there as possible.”

Huelskamp said he wanted to see the outcome of the case first. Huelskamp’s lawsuit calls for the project to be allowed as is, without affordable units. But many have speculated the project could include affordable units, and that could be done without needing any approval from community members or the city council.

Senior Deputy Fresno City Attorney Kristi Costa said under state law, a project with affordable housing could be approved with less parking and much more density.

“Under state law, it could allow for a ministerial approval of the project with zero appeal right, probably be processed in 60 to 90 days,” Costa said during the council meeting.