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Berliner Cohen Defends City of Los Altos Against Challenge Under the Housing Accountability Act

Berliner Cohen’s land use department has extensive experience representing both municipalities and public entities, and that experience was on display as Berliner Cohen successfully defended the City of Los Altos against a challenge to the City’s decision to deny a housing development based on findings that the project was inconsistent with the City’s existing specific plan and zoning requirements.

The owner of a small, 7300-square-foot property filed an application with the City of Los Altos to remove an existing commercial building and replace it with a mixed-use project with four residential units over commercial retail. The parcel is located in a struggling commercial district that is within the scope of a specific plan developed by the City twenty five years earlier. Despite knowing that the proposal was inconsistent with the use designated under the specific plan, the property owner submitted the application without requesting a specific plan amendment. As a result, the City Council denied the developer’s applications for design review, use permit, and subdivision approvals based on findings that the project was inconsistent with several provisions of the specific plan applicable to the project.

The applicant filed a writ of mandamus under the Housing Accountability Act alleging that the City improperly denied the project because its findings were based on subjective criteria in the specific plan and the specific plan was no longer viable and thus could not limit the development of the project. The court rejected the applicant’s arguments and found that the city did not violate the Housing Accountability Act by denying the project. Berliner Cohen partner Jolie Houston and associate Michael Branson successfully argued that even though the applicable specific plan was arguably outdated, it remained controlling and in fact the City was compelled to deny applications that were inconsistent with that plan. Further, by not requesting a specific plan amendment, the applicant had narrowed the City’s review to the application at hand, with the result that the City could not reevaluate the efficacy of the specific plan as part of the project review. After Berliner Cohen and the City of Los Altos prevailed on the Housing Accountability Act challenge, the City entered into a favorable conditional settlement agreement that tolls the applicant’s remaining inverse condemnation claim while the applicant submits a revised application.

The Housing Accountability Act, commonly called the “Anti-NIMBY” Law” has garnered significant attention over the past year. Berliner Cohen has been reached favorable outcomes for their clients in three separate actions alleging violations of the Act, which requires cities that have planned and zoned a piece of property for housing to allow development of a housing project that complies with the general plan and zoning unless there are specific objective reasons justifying denial. The Housing Accountability Act was heavily amended during the 2017 legislative session as part of the legislature’s housing bill package. These changes among other things further shift the burden on cities to provide adequate justification for denying housing and impose significant penalties on cities that violate the Act. To learn more about the changes to the Housing Accountability Act and other changes to California Housing Law, see Berliner Cohen’s recent article on the topic.


Berliner Cohen has served the business and regulatory needs of private business and public agencies for close to 50 years.  Berliner Cohen continually meets the growing demands of both the Silicon Valley and San Joaquin Valley. The Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Northern California’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, agribusiness, banking and financial institutions, employers, municipalities, public agencies, and individuals.


Andrew Faber practices in the areas of Land Use and Municipal Law. Andrew has over forty years of experience in representing private and public clients in a wide range of land use, environmental and public law matters, and in real estate, environmental and eminent domain litigation. If you have any questions, please contact Andrew Faber at or (408) 286-5800.

Jolie Houston practices in the areas of Land Use and Municipal Law. Jolie has over twenty years of experience representing private land use clients in a wide variety of land use and regulatory approvals. If you have any questions, please contact Jolie Houston at or (408) 286-5800.

Michael Branson’s practice at Berliner Cohen LLP is focused on Land Use and Municipal Law. He joined Berliner Cohen in 2015. If you have any questions, please contact Michael Branson at or (408) 286-5800.