In Honchariw v. County of Stanislaus, the California Court of Appeal overturned Stanislaus County’s decision to deny a subdivision map for a housing project that included no affordable units. The court ruled that the county violated the Housing Accountability Act (the Act), which is colloquially known as the “Anti-NIMBY” law. The provision of the Act at issue, Government Code section 65589.5(j), requires a local agency to make specific findings, based on substantial evidence, when it denies a housing project that “complies with applicable, objective general plan and zoning standards and criteria, including design review standards, in effect at the time that the housing development project’s application is determined to be complete.” In denying such a project, the agency must find that (1) the project would have a specific, adverse impact upon the public health or safety, and (2) there is no feasible method to mitigate or avoid this impact satisfactorily other than disapproving the project.
In Honchariw, a developer proposed to divide a 33.7-acre parcel into eight market-rate housing lots ranging in size from 0.5 to 5 acres. The local water district announced that it would not provide water service to all the lots. The county found that the project did not comply with a county code provision requiring subdivision lots to be connected to a public water system whenever such a system is available and denied the map on that ground. The county did not make any findings under the Act. The developer sued.
The court first rejected the county’s argument that the Act requires findings only for an affordable housing project. The county emphasized the broader context and purpose of the Act, which—the county maintained—are focused on the need for housing for very low, low and moderate income households. But the court found nothing in either the Act’s plain text or its legislative history to support the county’s reading. The court explained that the Act’s requirement to make findings applies by its terms to any “housing development project,” which is defined to include any project consisting of “residential units only.” The court also explained that the findings requirement predated the expansion of the statute in 1990 to cover affordable housing issues and that when the legislature amended the Act in 2003, it left intact an earlier court decision that had ruled that the findings requirement applied to housing development projects generally not just to affordable housing projects.
The court next ruled that the county had improperly relied on the local code provision requiring water service connections. The court emphasized that the county bore the burden of demonstrating compliance with the Act. It then ruled that the requirement for water service connections did not yet apply at the subdivision map stage. The court reasoned that subdivision lots cannot be connected to a public water system until those lots exist, and that the requirement for a water connection comes into play only when the developer attempts to build homes on the lots. As support for this conclusion, the court pointed to the project conditions that county staff had recommended, which required that “connection to the water system shall be made at the time of dwelling construction.” According to the court, therefore, the county's determination that the project did not comply with the requirement for a water service connection was "premature and lacks evidentiary support," since the requirement was not yet "applicable" within the meaning of the Act.
The court ordered the county to vacate its denial of the subdivision map application and to reconsider the application consistent with the Act's requirements. The court further instructed that, if the county ultimately decides to deny the application, it must first determine whether the project complies with applicable, objective general plan and zoning standards. And if the county determines the project does comply, any denial of the project must be supported by the specific findings required by Section 65589.5(j).
The court’s decision is a pointed reminder of the vitality of California’s Housing Accountability Act. The Act restricts the ability of local agencies to deny proposed housing projects, and it puts the burden on those agencies to demonstrate compliance with the Act’s requirements.
© 2011 Perkins Coie LLP