Honchariw v. Cnty. of Stanislaus

• Decision Date: 14 November 2011
• Docket Number: No. F060788.,F060788.
• Citation: 132 Cal.Rptr.3d 874,11 Cal. Daily Op. Serv. 13881,2011 Daily Journal D.A.R. 16558,200 Cal.App.4th 1066
• Parties: Nicholas HONCHARIW, as Trustee, etc., Plaintiff and Appellant, v. COUNTY OF STANISLAUS et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

200 Cal.App.4th 1066

132 Cal.Rptr.3d 874

11 Cal. Daily Op. Serv. 13,881

2011 Daily Journal D.A.R. 16,558

Nicholas HONCHARIW, as Trustee, etc., Plaintiff and Appellant,

v.COUNTY OF STANISLAUS et al., Defendants and Respondents.

No. F060788.

Court of Appeal, Fifth District, California.

Nov. 14, 2011.

See Cal. Jur. 3d, Zoning And Other Land Controls, §§ 66, 145; Cal. Civil Practice (Thomson Reuters 2011) Real Property Litigation, § 14:13; 9 Miller & Starr, Cal. Real Estate (3d ed. 2001) §§ 25:37, 25:38; 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 1017.

Nicholas Honchariw, for Plaintiff and Appellant.

Porter Scott, Sacramento, Carl L. Fessenden, Kristina M. Hall and Ashley M. Wisniewski, for Defendants and Respondents.

OPINION

FRANSON, J.

INTRODUCTION

Government Code section 65589.5¹ is known as the Housing Accountability Act (see § 65589.5, subd. ( o)), and has been referred to colloquially as the “ ‘Anti–NIMBY law.’ ” ² (See Schellinger Bros. v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1253, fn. 9, 102 Cal.Rptr.3d 394.) The purpose of the statute is to limit the ability of local governments to “reject or make infeasible housing developments ... without a thorough analysis of the economic, social, and environmental effects of the action....” ( § 65589.5, subd. (b).) Subdivision (j) of the statute provides that “[w]hen a proposed housing development project complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing developmentproject's application is determined to be complete,” a local agency which “proposes to disapprove the project ... shall base its decision regarding the proposed housing development project upon written findings supported by substantial evidence on the record that ... [¶] (1) [t]he housing development project would have a specific, adverse impact upon the public health or safety unless the project is disapproved” and “(2) [t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact ... other than disapproval of the housing development project....”

In the present case, respondent Board of Supervisors of the County of Stanislaus (the Board) voted not to approve appellant Nicholas Honchariw's proposed development project. The Board did not make any section 65589.5, subdivision (j) findings (hereinafter § 65589.5(j)). Appellant brought an administrative mandamus action in superior court to obtain what he contended was the required compliance with the statute. The superior court concluded that section 65589.5(j) findings were not required because the project did not comply with “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect....” (§ 65589.5(j).) Specifically, the court found that appellant's proposed project did not comply with section 20.52.210 of the Stanislaus County Code, which provides that “[a]ll lots of a subdivision shall be connected to a public water system ... whenever available.” Four of the proposed parcels of appellant's proposed eight-parcel project had a public water system (the Knights Ferry Community Services District, hereinafter KFCSD) “available” to them as that term is defined in the Stanislaus County Code.³ The trial court ruled that because appellant did not comply with this County ordinance, the County was not required to make section 65589.5(j) findings when it denied the proposed development project.

On this appeal, appellant contends that his proposed project complied with “applicable, objective general plan and zoning standards and criteria, including design review standards, in effect. ....” (§ 65589.5(j).) Respondents, the County of Stanislaus (County) and the Board, contend that section 65589.5 applies only to housing development projects involving “affordable” housing and, since appellant's proposed project does not implicate affordable housing concerns, section 65589.5 is not applicable at all. Respondents also contend that even if appellant's project is a “proposed housing development project” within the meaning of section 65589.5(j), the Board could not have found that appellant's proposed project complied with “applicable, objective general plan and zoning standards and criteria, including design review standards” because the proposed project did not comply with County Code section 20.52.210. Therefore, the Board was not required to make the section 65589.5(j) findings of a specific adverse impact and no feasible method to satisfactorily mitigate or avoid that impact.

As we shall explain, we reject respondents' contention that section 65589.5(j) applies only to housing development projectsinvolving affordable housing. The statute expressly defines “housing development project” to include residential units (see § 65589.5, subd. (h)), and nothing in that definition limits the reach of the phrase “housing development project” to projects involving affordable housing. We also conclude that there is nothing in the record to support a finding that appellant ever failed to comply with County Code section 20.52.210, and the superior court erred in concluding that appellant's proposed project was not in compliance with that County ordinance. We therefore reverse the decision of the superior court, and direct that court to issue a writ of mandate directing the Board to vacate its March 24, 2009, decision denying appellant's subdivision map application, and further directing the Board to conduct further proceedings in compliance with our decision in this case.

FACTS

Appellant proposed to divide a 33.7–acre parcel, overlooking the Stanislaus River in the Knights Ferry area of Stanislaus County, into eight parcels ranging in size from 0.5 to five acres. Specifically, there would be three 5–acre lots (lots 1 through 3), four 1–acre lots (lots 4 through 7), one 0.5–acre lot (lot 8), and a 12.03–acre “remainder,” which would remain undeveloped. The western portion of the project area, on which the three 5–acre parcels and 4.42 acres of the remainder would be located, is zoned “General Agriculture.” The eastern portion, on which the four 1–acre lots, the 0.5–acre lot, and 7.61 acres of the remainder would be located, is zoned “Historical Site District.” The proposed 0.5–acre parcel (lot 8) already has a dwelling with water service from the KFCSD. Under “historical” zoning, one acre is the minimum parcel size for allowing a private well. All of the proposed parcels in both zoning areas except the 0.5–acre parcel (i.e., all of lots 1 through 7) would be served by private wells.

The historical portion of the project area, which would include the four 1–acre parcels, lies within the service area of the KFCSD. The western portion does not. The KFCSD issued a “Will Not Serve” letter regarding the proposed project. It refused to provide water service other than what it was already providing to the dwelling on what would be the 0.5–acre lot (lot 8) located on the eastern edge of the project area. At the Stanislaus County Planning Commission staff's direction, appellant therefore applied for an “exception” to County Code section 20.52.210, which requires all subdivision lots be connected to a public water system whenever a system is “available.” The proposed one-acre lots would be deemed to have a public water system available to them under section 20.52.210.⁴ The County Code permits the granting of an exception to County Code section 20.52.210 if certain findings are made. (Stanislaus County Code, § 20.64.030.)

On February 5, 2009, a hearing was held before the County Planning Commission (Planning Commission) for consideration of both the entire project application and the exception to the County Code section 20.52.210 requirements for the four parcels.Several area residents spoke out against the creation of one-acre lots in the project area. Among other reasons, they expressed concerns about traffic safety, well water availability, contamination from septic tanks and maintaining the historical integrity of the area. The Planning Commission voted six-to-two to deny appellant's subdivision project application and to deny his request for an exception to County Code section 20.52.210

Appellant exercised his right to appeal the Planning Commission's decisions to the Board. A hearing was held on March 24, 2009. Similar concerns were again expressed, and the Board voted five-to-zero to disapprove appellant's subdivision project application and to deny his request for an exception to County Code section 20.52.210.

STANDARD OF REVIEW

Subdivision (m) of section 65589.5 provides that “[a]ny action brought to enforce the provisions of this section shall be brought pursuant to Section 1094.5 of the Code of Civil Procedure....” Subdivision (b) of Code of Civil Procedure section 1094.5 pertains to judicial review of administrative decisions and states: “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” Appellant contends that the Board has not “proceeded in the manner required by law” because his proposed project “complies with applicable, objective general plan and zoning standards and criteria” (§ 65589.5(j)) and the Board therefore could not lawfully deny approval of the project without making “written findings supported by substantial evidence on the record” that the project “would have a specific, adverse impact upon the public health or safety unless the project is disapproved” and “[t]here is no feasible method to satisfactorily mitigate or avoid the adverse impact identified....” (§...