How Do You Say "No" To A Housing Project? With Findings.

By William W. Abbott

This case reminds me of that dreaded moment when a judge, work supervisor or parent turns to you and asks, “what part of “NO” don’t you understand; the “N” or the “O”? And as simple as the question is, the answer, in a land use context, is more complicated then would first appear. For purposes of housing projects, the riddle is Government Code section 65589.5(j) which, among other provisions, requires a city or county to adopt findings justifying the denial or density reduction in circumstances in which the project complies with “applicable, objective general plan and zoning standards and criteria, including design review standards.” This code section was added in an effort to tighten down the discretion exercised by local officials when acting on a housing project application. It is codified as part of the Housing Accountability Act. A companion code section places the burden of proof on the city or county. (Government Code section 65589.6.)

The facts of Nicholas Honchariw v. County of Stanislaus (Nov. 14, 2011, F060788) ___Cal.App. 4th ___, are relatively simple. Honchariw applied for a tentative map approval for an eight lot subdivision. The local water district agreed to provide service to one lot where it already had a service connection, but issued a “will not serve” letter with respect to the balance of the proposed project which was located within its service boundaries. The developer proposed individual wells with respect to the remaining seven parcels. The county code provided that all lots had to connect to a public system, “when available.” Staff recommended that the applicant apply for an exception from this code provision, which he did. The planning commission denied the request, and on appeal, the Board of Supervisors denied the map request and the exception request. The Board denied the map pursuant to the findings set forth in the Subdivision Map Act, that the site was not physically suitable as it would cause split zoning, and that the septic tanks were close to an existing pond and canal. Having found the project to be non compliant, the Board declined to adopt the findings under Section 65589.5. Honchariw filed a writ. The superior court denied the writ, concluding that the Section 65589.5 findings were not required as project did not meet applicable development standards. Honchariw appealed.

On appeal, the County first argued that Section 65589.5 had no applicability as the project was not an affordable project. After reviewing the legislative history, the appellate court concluded that while affordability or other qualifications apply to other provisions of Section 65589, that is not an element of paragraph (j). Turning next to the substantive argument, the appellate court rejected the County’s characterization that the tentative map was non compliant with the county regulations pertaining to a public water connection. In so ruling, the court sidestepped the question of whether or not the connection policy qualified as “design review standard,” but instead concluded it was a requirement which applied at the home building stage, not the subdivision stage, and therefore was not an “applicable” standard. The appellate court then determined that the denial of the exception did not mean a lack of compliance with the ordinance, which from this author’s perspective, is an extremely subtle legal point. The appellate court noted that the burden of proof fell on the County (Government code section 65589.6), and as the record lacked the requisite findings, the appellate court remanded the matter back to the Board for further proceedings. This does not mean that Honchariw will be able to proceed with the project. That will turn on the subsequent findings adopted by the County.

This case turns largely on the court’s interpretation of the County’s development policy as to when the connection requirement is applicable (tentative map, final map or building permit). Local officials, when drafting general plan policy and development regulations would serve themselves well by making clear what the timing triggers are for various policies. The next domino likely to fall under this code section will be what happens to a housing project application which complies with “objective” standards, but is otherwise inconsistent with broader statements of policies found in the general plan which in the case of a non residential project, could be readily disapproved. The question of what policies and development requirements are “objective” and potentially require Section 65589.5 findings is a factually specific inquiry, unique to each city and county, with an added variable dependent upon the particular application then pending before the decision makers. Good luck.

William W. Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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