Reznitskiy v. Cnty. of Marin

• Decision Date: 15 June 2022
• Docket Number: A161813
• Citation: 79 Cal.App.5th 1016,295 Cal.Rptr.3d 243
• Parties: Aleksandr REZNITSKIY et al., Plaintiffs and Appellants, v. COUNTY OF MARIN et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

79 Cal.App.5th 1016

295 Cal.Rptr.3d 243

Aleksandr REZNITSKIY et al., Plaintiffs and Appellants,

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

A161813

Court of Appeal, First District, Division 1, California.

Filed June 15, 2022

Certified for Partial Publication.^*

Counsel for Plaintiffs and Appellants: Ryan J. Patterson, Emily L. Brough, Zacks, Freedman & Patterson, San Francisco

Counsel for Amicus Curiae Californians for Homeownership on behalf of Plaintiffs and Appellants: Matthew Gelfand, Allyson Richman

Counsel for Amicus Curiae California Association of REALTORS® on behalf of Plaintiffs and Appellants: Neil D. Kalin, Los Angeles

Counsel for Amicus Curiae Building Industry Association – Bay Area on behalf of Plaintiffs and Appellants: Paul B. Campos

Counsel for Amicus Curiae YIMBY Law on behalf of Plaintiffs and Appellants: Kenneth Stahl, Miller Starr Regalia

Counsel for Defendants and Respondents: Brian E. Washington, County Counsel, Brian C. Case, Deputy County Counsel, Brandon W. Halter, Deputy County Counsel

Humes, P.J.

The Housing Accountability Act (HAA) ( Gov. Code, § 65589.5 )¹ was enacted 40 years ago as part of broad legislative efforts to address California's housing crisis. The statute aims "to significantly increase the approval and construction of new housing for all economic segments of California's communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects and emergency shelters." ( § 65589.5, subd. (a)(2)(K).) As one way to encourage housing construction, the HAA bars local agencies from denying any proposed "housing development project" unless the denial is based on objective criteria or the agency finds that the project would adversely impact public health or safety. ( § 65589.5, subd. (j)(1).)

Aleksandr Reznitskiy and Cecily Rogers (plaintiffs) appeal from the denial of their petition for a writ of administrative mandamus involving their application to build a nearly 4,000-square-foot single-family home on a hillside lot in San Anselmo (the project). After concluding that the project was not subject to the HAA, respondents Marin County and the County of Marin Board of Supervisors (collectively, the County) denied plaintiffs’ application on several bases, including that the home was outsized compared to the surrounding neighborhood. Plaintiffs claim that their planned home qualifies as a "housing development project" under the HAA and that the County improperly rejected it based on subjective criteria. They also claim that the County is equitably estopped from arguing that the HAA does not apply and that, in any case, insufficient evidence supports the County's decision.

We conclude that the County lawfully rejected plaintiffs’ application. In the published portion of this opinion, we address a longstanding question the Legislature has deliberately left unresolved and hold that the HAA does not apply to a project to build an individual single-family home. In the remaining portion of the opinion, we reject plaintiffs’ equitable-estoppel and insufficient-evidence claims. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2016, plaintiffs applied to build a single-family home and accessory dwelling unit (ADU) totaling 5,145 square feet on a 1.76-acre lot they own in San Anselmo. The lot is "heavily wooded" and slopes "steeply" upward from a creek. It has no vehicular access, and the project included a driveway that bridged the creek, a "concrete parking deck with an emergency access/turnaround area," and a temporary access road to enable construction of the house and driveway. Plaintiffs also sought a tree-removal permit because the project proposed removing "[a]pproximately 19 trees ... classified as either ‘protected’ or ‘heritage’ per the Marin County Development Code."

After receiving preliminary comments from the planning division of the County's Community Development Agency (Agency), plaintiffs revised the project to remove the ADU and reduce the house's floor plan to 3,872 square feet. In February 2019, the planning division issued an administrative decision approving the project and granting the tree-removal permit. The decision found that as redesigned, the project was compatible with the surrounding neighborhood and consistent with the Marin Countywide Plan and the Marin County Code's mandatory findings for design review.

The following month, neighbors appealed the planning division's decision to the Marin County Planning Commission (Commission). They argued that the size of the project rendered it incompatible with the neighborhood, and they provided a survey showing that "[t]he average size of the nearest 25 residences [was] 1,544 square feet," significantly smaller than plaintiffs’ proposed house. The neighbors also argued that the creek would be negatively affected, questioned the need for a large bridge, and urged that fewer trees be removed.

Before the Commission hearing on the appeal in May 2019, the planning division prepared a report recommending that its administrative decision be upheld. At the hearing, an array of evidence was considered, including the staff report, project plans, testimony by Reznitskiy, and written and oral opposition from the public. After several commissioners expressed concern about the project's scale and environmental impacts, the Commission unanimously voted to grant the neighbors’ appeal and deny the project.

Plaintiffs appealed the Commission's decision to the County of Marin Board of Supervisors (Board). Among other arguments, plaintiffs claimed that "further downsizing" of the project was unnecessary and that the project's denial violated the HAA. The Agency submitted a letter to the Board recommending that the project's denial be upheld, now agreeing that the project was outsized for the neighborhood and would unduly impact the creek and environment. The letter contended that the HAA applied only to "large-scale housing projects such as mixed-use, multiple residential unit projects, transitional and supportive housing," and the project "[did] not qualify as [such] a higher density residential project."

In August 2019, the Board heard plaintiffs’ administrative appeal. Additional evidence was presented, including the testimony of two of plaintiffs’ civil engineers and further testimony by neighbors opposed to the project. One Board supervisor observed that although plaintiffs had "a right to develop" the property, the project was "not ready for prime time yet" and "need[ed] to be scaled down and the design refined." The Board then unanimously voted to uphold the Commission's decision denying the project. The Board also issued a resolution summarizing its reasons for denying plaintiffs’ appeal. As relevant here, the resolution affirmed that the proposed residence was oversized and concluded that the HAA did not apply to the project.

The following month, plaintiffs filed a petition for a writ of administrative mandamus in the trial court to challenge the County's denial of the project. They claimed that the project constituted a "housing development project" under the HAA and "complie[d] with all applicable objective general plan and zoning standards and criteria, including design review standards, in effect at the time of the Project application" under section 65589.5, subdivision (j)(1). Alternatively, plaintiffs argued that even if the HAA did not apply, the County's findings were not supported by substantial evidence. In December 2020, the trial court rejected these arguments and denied the petition.²

II. DISCUSSION

A. General Legal Standards

1. Standards of review in administrative writ proceedings

In their petition for a writ of administrative mandamus, plaintiffs claimed the County prejudicially abused its discretion in denying their application to build the project. Under Code of Civil Procedure section 1094.5, subdivision (b), "[a]buse of discretion is established if the [agency] 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."

In an administrative writ proceeding that, like this one, does not involve a fundamental vested right, the trial court reviews the agency's factual findings for substantial evidence and its legal conclusions de novo. ( Code Civ. Proc., § 1094.5, subd. (c) ; Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1260–1261, 188 Cal.Rptr.3d 655 ( Schafer ).) "An appellate court in a case not involving a fundamental vested right reviews the agency's decision, rather than the trial court's decision, applying the same standard of review applicable in the trial court." ( Schafer , at p. 1261, 188 Cal.Rptr.3d 655.)

2. The HAA

The HAA is part of the Housing Element Law ( § 65580 et seq. ), "which ‘set[s] forth in considerable detail a municipality's obligations to analyze and quantify the ... locality's share of the regional housing need ... and to adopt and to submit to California's Department of Housing and Community Development [(Department)] a multiyear schedule of actions the local government is undertaking to meet these needs.’ " ( California Renters Legal Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820, 834, 283 Cal.Rptr.3d 877 ( CaRLA ).) In 1982, the Legislature enacted the HAA, "colloquially known as the ‘Anti-NIMBY’ (Not-In-My-Back-Yard) law," to address the dearth of housing in the state. ( Id. at pp. 834–835, 283 Cal.Rptr.3d 877.) Under section 65589.5, subdivision (j) ( section 65589.5(j) )—the provision that plaintiffs contend applies to the project—"[w]hen a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria, including design review standards, in effect at the time the application was deemed complete," the local agency cannot "disapprove the project or ... impose a...