You Can't Vote No on a Ministerial Project: Burbank & SB 35

You did everything SB 35 asks. The project is multifamily, it clears the affordability threshold, and the city's own staff report says it meets every objective standard on the books. Then it goes to the city council, the council hears testimony, and it votes — unanimously — to deny it anyway, pointing to a line in the general plan that says a project like this one needs discretionary approval.

Here's the thing: HCD's position is that once a project qualifies for SB 35, that discretionary vote isn't supposed to happen at all.

What happened in Burbank

The Pickwick Gardens Housing Project proposed 96 units — ten of them set aside for lower-income households — at 921-1001 W. Riverside Drive, on a site the general plan designates Rancho Commercial and the zoning code labels Commercial Recreation. HCD had already emailed the City in November 2021 to say the Streamlined Ministerial Approval Process applied. The City's own staff report concluded the project was consistent with the applicable objective general plan, zoning, subdivision, and design-review standards.

On April 18, 2022, the City Council voted unanimously to deny the Project and adopted a resolution formalizing the denial. A month later, HCD issued a Notice of Violation.

Verified against HCD's Notice of Violation to the City of Burbank (May 24, 2022), regarding the Pickwick Gardens Housing Project and Gov. Code § 65913.4.

Why the "discretionary approval" line failed

The City leaned on three findings: Rancho Commercial is a nonresidential designation, the municipal code prohibits residential in the Commercial Recreation zone, and residential on a nonresidential designation "typically" moves forward through a general plan amendment, planned development, and development agreement.

HCD read it in three parts:

1. The general plan actually allows residential in Rancho Commercial — up to 20 units per acre.
2. Where the general plan and the zoning ordinance conflict, HCD's position is that the general plan's objective standards control, and the project (at roughly 18 units per acre) fits inside them.
3. The general plan's discretionary-approval requirement isn't an objective standard, so it drops out.

On that third point, the letter is blunt: the Project qualifies because "the General Plan's discretionary approval requirement does not apply under SB 35."

The line that matters for your project

Here is the part expediters and developers should file away. HCD's position isn't that the council reviewed the project wrong — it's that the council shouldn't have been holding a discretionary vote at all. Quoting its own guidelines, HCD wrote that ministerial approval "shall be non-discretionary and cannot require a conditional use permit or other discretionary local government review or approval."

And on the specific "discretionary approval" language buried in the general plan's density line, HCD said: "Such 'discretionary approval' is not objective and would not apply to an SB 35 project."

The throughline, in HCD's words: "SB 35, where and when it applies, prohibits discretionary review of new housing." A general-plan clause reading "20 units per acre with discretionary approval" doesn't hand the council a veto over a qualifying SB 35 project — HCD's view is that the "with discretionary approval" half simply falls away.

What HCD asked for

HCD found the City in violation of Government Code § 65913.4 and gave it 30 days to respond, setting a June 24, 2022 deadline. It asked the City to repeal the denial resolution and let the project move forward without further delay, and it flagged two escalation paths: referral to the Attorney General under § 65585, and separate exposure under the Housing Accountability Act (§ 65589.5).

Read this before you rely on it

One caution that matters on this exact issue. An HCD Notice of Violation is HCD's enforcement position, not a court ruling — it doesn't rewrite your city's code on its own, and a court could read the statute differently. If your qualifying SB 35 project is facing a discretionary hearing or a council vote, treat the Burbank letter as a strong signal of how the state reads the law, not as the last word. Confirm the specifics with your jurisdiction and your own counsel before you act. This isn't legal advice.

What CrossBeam does with it

When the letter lands on your desk, CrossBeam turns it around the same day: what each item is actually asking, the code or law behind it, and a written response you can hand to your team or your attorney — the back-and-forth that used to eat weeks, done in a couple of hours.