The project would include 200 units, 14 of which would be reserved for extremely low-income residents. (rendering courtesy of Crescent Heights)

On Oct. 21, the Beverly Hills Planning Commission voted 4-1 to deny plans for a 309-foot-tall development at 8844 Burton Way. Commissioner Terri Kaplan was the lone vote in support of the project.

The 200-unit project was created by Crescent Heights, Inc., a development group responsible for several high-rise projects in Los Angeles including the 40-story building at 10000 Santa Monica Blvd. in Century City. The project was initially proposed at 223 feet tall and 20 stories. However, changes in March and July by the developer increased the size of the project to 26 stories.

The development exceeds usual city height and density restrictions due to the builder’s remedy, a state provision that allows private developers to bypass local code regulations when a project contains at least 13% affordable housing. The provision takes effect when a municipality’s housing element – a state-mandated outline of zoning for affordable housing within the city – is out of compliance.

The city of Beverly Hills’ housing element for the 2021-29 cycle was out of compliance for approximately three years between 2021-24. The preliminary application for the development at 8844 Burton Way was submitted to the city in December 2023.

Although the updated project still includes affordable housing units, the number of affordable units was reduced from 40 lower income units to 14 extremely low-income units and eight moderate income units. The changes were made following updates in California’s housing laws which reduce the minimum number of affordable housing units necessary to qualify for builder’s remedy status.

Many residents attended the meeting to express concerns over nearly every aspect of the project, including its size, impacts on traffic and alleged health and safety issues. Nearby resident Janet Fox, an attorney and retired deputy district attorney, said the commission made the right decision to deny the project.

“What the builder in our case has done is used this [builder’s remedy] legislation as a sword, and not as a shield for the people, but as a sword for them to unjustly enrich their ability to make a lot of money,” Fox said.

The commission denied the project on three grounds – alleging that the development segregates affordable housing units from the rest of the units, violates health and safety codes and creates unsafe fire risk conditions.

“I have very serious concerns,” Commissioner Gary Ross said, citing the placement of the affordable housing units on the lower floors and perceived challenges to fire department access due to the project’s size. “I really don’t feel good about this project.”

Kaplan said that while she understood and agreed with many residents’ concerns, she felt constrained by state law due to the builder’s remedy. She pointed to similarities with several other builder’s remedy projects that were recently approved by the Planning Commission despite widespread concerns from residents. On Oct. 9, the commission approved a 13-story tower at 9441 Olympic Blvd., an eight-story building at 9467 Olympic Blvd. and an eight-story project at 333-353 S. Beverly Drive. On Oct. 14, the commission approved a 12-story project at 346 N. Maple Drive and an 11-story development at 401 N. Oakhurst Drive. Although city staff recommended that the Planning Commission similarly approve the project at 8844 Burton Way, a majority of the commission sided with the nearby residents and voted to deny.

“In a typical project, we approve based on an ability to make specific findings that are enumerated in our municipal code. If a majority of us are unable to make the findings, and vote no on that basis, that is enough to deny a project. But in the case of these builder’s remedy projects, and where I find myself both here and in previous projects … I feel my only choice under the law is to vote yes,” Kaplan said. “Beat us up all you want, beat up the City Council. But your comments and your complaints and your observations and your grievance is much more effectively directed to the state of California and our elected officials there who enacted all these laws.”

Dave Rand, an attorney representing the project, said the commission had “zero basis” for denying the development. He argued that the three grounds that the city cited for denying the project are not supported by housing law. He said that the city should have addressed the concerns through implementing conditions on the project, as also suggested by the city attorney.

“The outcome was very disappointing and the commission clearly acted unlawfully,” Rand said. “Our client is absolutely going to pursue every single remedy allowed and available under the law including litigation if it comes to that.”

A resolution to finalize the denial of the 8844 Burton Way project will return to the Planning Commission on Oct. 29. Rand said that if the denial is upheld next week, the developer will file an appeal, which would be heard by the City Council at a later date.

Rand previously represented a similar builder’s remedy project at 125-129 S. Linden Drive, which became the subject of a lawsuit that alleged the city unlawfully denied the project. In August, a judge ruled in favor of the developer, forcing the city to process the development application. Following the judge’s ruling, the developer doubled the project’s size from 19 to 36 stories.