The project would be 309 feet tall and 26 stories. (rendering courtesy of Crescent Heights)

The Beverly Hills Planning Commission on Nov. 5 narrowly voted to uphold a denial of a builder’s remedy project at 8844 Burton Way.

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 309 feet tall and 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 included 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.

On Oct. 21, the commission voted 4-1 to instruct city staff to create a resolution that would formally deny the project. The commission voted in favor of a denial 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. 

However, the California Department of Housing and Community Development sent the city a letter on Oct. 28 stating that certain requests from the Planning Commission for the project were not substantial cause for a denial.

“The Planning Commission should be mindful of the stringent requirements for making findings of denial under the Housing and Accountability Act as it considers the project,” the letter read. “If the Planning Commission is unable to meet these requirements, HCD urges the Planning Commission to recommend approval of the project at the proposed density.”

At the Nov. 5 meeting, the developer returned with an updated plan that redistributed the affordable housing units across a larger area throughout the project. However, the commission voted 3-2 to finalize the denial of the project.

Commission Chair Jeff Wolfe and Commissioner Terri Kaplan ultimately voted in favor of the development. 

“The applicant has come back and has redistributed the units, and because of the new distribution of units – independent of whether I believe the credibility of whether it was feasible or not – the redistribution of units is such that I can no longer make that finding that it violates that particular state law, which was the basis of my denial,” Wolfe said.

Kaplan argued that the builder’s remedy prevented the commission from lawfully voting to deny the project.

“I believe that the state has created a statutory framework that forces the hand of this city and many others to approve projects that … we find abhorrent. Such is the case here for me,” Kaplan said. “My most important function as a commissioner is to follow the law, and in this case I feel the law leaves me no choice but to vote to approve the project.”

Many residents attended several Planning Commission meetings to express concerns over nearly every aspect of the project at 8844 Burton Way, including its size, impacts on traffic and alleged health and safety issues. 

Commission Vice Chair Lou Milkowski and Commissioners Myra Demeter and Gary Ross ultimately sided with the residents.

“I’m really struggling with the notion that they have reduced the project from 40 affordable units to 22 affordable units. We are very much charged with an obligation to promote an environment where as many affordable units can be built as possible, and for this developer to come in and increase the size of the building and yet reduce the number of affordable units … is just something that I can’t get comfortable with,” Ross said.

Dave Rand, an attorney representing Crescent Heights, Inc., said the developer will appeal the decision to the City Council. 

“The two commissioners that voted ‘no’ clearly understood the law and stated on the record that they were legally compelled to approve it. Those two got it right,” Rand said. “The majority of the commission acted unlawfully.”

Rand previously represented the developer for 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.

Rand said if the City Council upholds the commission’s denial of the project at 8844 Burton Way, the developer “150%” plans to file litigation.

Nearby resident Janet Fox said the City Council should uphold the Planning Commission’s decision, and the community will not relent in its effort to prevent the project from being built.

“The residents are going to be very active,” Fox said. “Whatever we have to do, we will do to stop a 26-story building with 22 affordable units. We believe that we need affordable units in the city of Beverly Hills.”

However, Fox added, not in the form of a 26-story, 309-foot tower.