Opinion
A121386
3-3-2009
DOTTY COPLEN et al., Plaintiffs and Appellants, v. COUNTY OF MENDOCINO et al. Defendants and Respondents.
Not to be Published in Official Reports
I.
INTRODUCTION
Plaintiffs Dotty Coplen, Darbi Meza, and Olivia Frutiz appeal from a judgment following the trial courts denial of their petition for writ of mandamus. Plaintiffs sought an order requiring defendant County of Mendocino (County) to rezone at least 50 acres to allow 29 units per acre, which they assert is required so that the housing element of Countys general plan is in compliance with the Housing Element Law (Gov. Code, § 65580 et seq.) and the Least Cost Zoning Law (§ 65913 et seq.). We affirm because the Countys revised housing element of its general plan was in substantial compliance with statutory requirements when it was adopted in 2004.
The petition and complaint also named as defendants in their official capacities Michael Delbar, Richard Shoemaker, Hal Wagenet, Patricia Campbell and David Colfax as members of the Mendocino County Board of Supervisors; James M. Anderson, County Administrator of the County of Mendocino; and Raymond Hall, Director of Mendocino County Department of Planning and Building Services.
Unless otherwise noted, all further undesignated statutory citations are to the Government Code.
II.
PROCEDURAL AND FACTUAL BACKGROUND
We set forth the background of the case to the extent necessary to address the issues raised on appeal. Plaintiffs filed a petition for writ of mandate and complaint for injunctive and declaratory relief on July 19, 2004. They sought a writ of mandate to compel County to "prepare and adopt a legally sufficient housing element" in its general plan under the Planning and Zoning Law (§ 65300 et seq.), and to comply with the Least Cost Zoning Law. Plaintiffs also alleged land use discrimination (§ 65008), housing discrimination (§ 12900; 42 U.S.C. § 3601 et seq.), and illegal expenditure of County funds (Code Civ. Proc., § 526a), and sought declaratory and injunctive relief.
In December 2004, the Mendocino County Board of Supervisors adopted a revised housing element of its general plan for the planning period December 31, 2003, through June 30, 2009 (Revised Element).) The portion of the Revised Element at issue, Action 4.2, provides: "Increase Multi-Family Zoned Sites for Lower Income Housing: To facilitate development of lower income housing the County will by July 1, 2007 rezone at least 50 acres to R-3 (or comparable density zoning for multi-family housing without a conditional use permit) in urban or community areas throughout the County, with a high priority given to land within water and/or sewer service districts or within or adjacent to towns. The total of 50 acres may be accomplished by a cumulative total of County and/or privately initiated rezoning applications." (Fn. omitted.) The only difference between Action 4.2 adopted in December 2004 and the earlier version of Action 4.2 adopted in January 2004 was that the version at issue increased the number of acres to be rezoned from 40 to 50.
Plaintiffs do not dispute that the planning period has since been extended to August 31, 2009.
The Countys housing element includes an extensive "Technical Appendix," over 165 pages in length, in which the County inventoried all available sites for general residential and multi-family housing development in the County. The Technical Appendix indicates "there are approximately 78,500 vacant residentially zoned acres available for development" in the unincorporated area of the County. (Technical Appendix, at p. 4-1.) The vacant acreage is identified in each of 18 residential zones in the County. (Id. at p. 4-2.) Vacant parcels are also identified in zones permitting multi-family units, as well as in residential use zones by area. (Id. at pp. 4-3 to 4-5.) Additionally, Appendix B of the Technical Appendix includes residential site inventories by city or town in the County, with available sites identified for each area, together with preliminary constraints on development for each parcel. (Id. at pp. B-1 to B-42.)
By letter dated December 27, 2004, the Department of Housing and Community Development (Department) indicated "Mendocino Countys adopted housing element [is] in compliance with State housing element law. . . . The adopted housing element now includes a more detailed analysis of commercial and underdeveloped sites and demonstrates adequate sites to accommodate the Countys share of the regional housing need. The Departments finding of compliance is conditioned on the Countys successful implementation of Action 4.2 to rezone at least 50 acres allowing 29 units per acre, by-right, where water and sewer capacity will be available by July 1, 2007. . . . [¶] . . . If the [Countys] annual report reveals Action 4.2 has not been implemented, the element will no longer identify adequate sites and will require immediate amendment to provide adequate sites."
By stipulation and order dated March 29, 2005, the parties agreed that the hearing on the petition would be "vacated," and that plaintiffs would dismiss their third through sixth causes of action.
Two years later, on July 19, 2007, plaintiffs filed a petition for writ of mandate and interim relief. Plaintiffs renewed their 2004 petition and sought issuance of a writ ordering County to "adopt a legally sufficient housing element[,] . . . zon[e] land under its jurisdiction `[to] meet housing needs for all income categories as identified in the housing element, " and suspending Countys "authority to grant zoning changes, subdivision map approvals, and other discretionary approvals . . . absent a finding by the Court . . . that the action not significantly impair the ability of [County] to adopt a legally sufficient housing element."
Following a hearing, the court denied the petition. The court found "[plaintiffs] have failed to sustain their burden of proof to demonstrate that the Countys Housing Element failed to comply with Government Code Section 65583 at the time the element was revised and amended in 2004." It also held that "the Least Cost Zoning Law . . . does not require that the rezoning occur immediately after or at any particular time in relation to the adoption of the housing element." This timely appeal followed.
III.
DISCUSSION
Plaintiffs urge that the housing element of Countys general plan fails to substantially comply with the Housing Element Law and the Least Cost Zoning Law. We independently review "`whether the housing element or . . . revision thereto substantially complies with the requirements " of the law. (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1185, 1191 (Fonseca ); Hoffmaster v. City of San Diego (1997) 55 Cal.App.4th 1098, 1105-1106.)
A. Legal Background
In order to provide context to the issues raised by plaintiffs, we briefly summarize the background of the Housing Element Law and the Least Cost Zoning Law. Among other things, state planning law requires adoption of a general plan. (§ 65300.) "In the universe of local land use enactments, the general plan is `at the top of "the hierarchy of local government law regulating land use." [Citation omitted.] Our states high court has described `the function of a general plan as a "constitution," and has labeled it the ` "basic land use charter governing the direction of future land use" in the locality." (Fonseca, supra, 148 Cal.App.4th at p. 1182; citing Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 542; DeVita v. County of Napa (1995) 9 Cal.4th 763, 773.)
In 1980, the Legislature enacted the Housing Element Law, which required "each local government to adopt a `housing element as a component of its general plan. [Citations.]" (Fonseca,supra, 148 Cal.App.4th at p. 1182.) "The housing element shall consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing. The housing element shall identify adequate sites for housing, including rental housing, factory-built housing, and mobilehomes, and shall make adequate provision for the existing and projected needs of all economic segments of the community." (Former § 65583.) " `The assessment and inventory shall include . . . [¶] . . . [¶] . . . [a]n inventory of land suitable for residential development, including vacant sites and sites having potential for redevelopment, and an analysis of the relationship of zoning and public facilities and services to these sites. " (Fonseca, supra, 148 Cal.App.4th at p. 1194, citing former § 65583, subd. (a)(3).) "The statutory language did not require that sites be immediately available for development in order for them to be `adequate. " (Fonseca, supra, at p. 1204.) "[P]rior to amendments to the Housing Element Law in 2004, there was no legislative enunciation of the level of detail or specific information required in the land inventory, other than what the language of former section 65583 itself provided." (Fonseca, supra, at p. 1195.)
Section 65583 was amended in 2004, effective January 1, 2005. (See Stats. 2004, ch. 724, § 1.) All references to that section in this opinion are to the version in effect in December 2004, when County adopted the Revised Element at issue here.
The Housing Element Law "works in tandem with the Least Cost Zoning Law." (Fonseca, supra, 148 Cal.App.4th at p. 1209.) The portion pertinent to plaintiffs claims provides, "In exercising its authority to zone for land uses and in revising its housing element . . . a city, county, or city and county shall designate and zone sufficient vacant land for residential use with appropriate standards . . . to meet housing needs for all income categories as defined in the housing element of the general plan." (§ 65913.1, subd. (a); see Fonseca, supra, at pp. 1207-1208.)
The Department plays an important role in the preparation of the housing element. "[E]ach city and county shall consider the guidelines adopted by the [D]epartment pursuant to Section 50459 of the Health and Safety Code. Those guidelines shall be advisory to each city or county in the preparation of its housing element." (§ 65585, subd. (a).) "At least 90 days prior to adoption of its housing element, or at least 60 days prior to the adoption of an amendment to this element, the planning agency shall submit a draft element or draft amendment to the [D]epartment. The [D]epartment shall review the draft and report its written findings to the planning agency . . . ." (§ 65585, subd. (b).) "In its written findings, the [D]epartment shall determine whether the draft element or draft amendment substantially complies with the requirements of this article." (§ 65585, subd. (d).) "Prior to the adoption of its draft element or draft amendment, the legislative body shall consider the findings made by the [D]epartment. If the [D]epartments findings are not available within the time limits set by this section, the legislative body may act without them." (§ 65585, subd. (e).) "If the [D]epartment finds that the draft element or draft amendment does not substantially comply with the requirements of this article, the legislative body shall take one of the following actions: [¶] (1) Change the draft element or draft amendment to substantially comply with the requirements of this article[, or] [¶] (2) Adopt the draft element or draft amendment without changes. The legislative body shall include in its resolution of adoption written findings which explain the reasons the legislative body believes that the draft element or draft amendment substantially complies with the requirements of this article despite the findings of the [D]epartment." (§ 65585, subd. (f).)
Health and Safety Code section 50459 provides in part: "The [D]epartment may adopt, and from time to time revise, guidelines for . . . [¶] . . . preparation of housing elements . . . ." (Health & Saf. Code, § 50459, subd. (a)(1).) "The [D]epartment shall review housing elements and amendments for substantial compliance . . . and report its findings pursuant to Section 65585 of the Government Code." (Health & Saf. Code, § 50459, subd. (b).) "The [D]epartment shall report to the Legislature on the status of housing elements and the extent to which they comply with the requirements . . . ." (Health & Saf. Code, § 50459, subd. (c).) "Under section 65589.3, the housing element (or its amendment) enjoys a rebuttable presumption of validity if the Department makes a finding that it substantially complies with the requirements of [section 65589.3]. [Citation.] . . . [T]here is no presumption of invalidity on the basis of the Departments finding of noncompliance." (Fonseca, supra, 148 Cal.App.4th at p. 1184, italics added.)
"Former section 65583 . . . provided that the housing element shall contain a `program which sets forth a five-year schedule of actions the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the housing elements . . . . " (Fonseca, supra, 148 Cal.App.4th at p. 1202.) The housing element "`shall be revised as appropriate, but not less than every five years . . . . " (Id. at p. 1184.) "These timetables for revision of the housing element have been held to be directory, not mandatory. [Citation.] . . . [M]ere noncompliance with the schedule does not operate to automatically invalidate a housing element . . . ." (Id. at pp. 1184-1185.)
"`Any interested party [may challenge a countys housing element] by a traditional mandamus action . . . . The courts review `shall extend to whether the housing element or portion thereof or revision thereto substantially complies with the requirements of [the Housing Element Law]. [Citation.] ` " ` "Substantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute," as distinguished from "mere technical imperfections of form." [Citation.]" " (Fonseca, supra, 148 Cal.App.4th at p. 1185, citing Buena Vista Gardens Apartments Assn.v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 298.)
"`[J]udicial review of a housing element for substantial compliance with the statutory requirements does not involve an examination of the merits of the element or of the wisdom of the municipalitys determination of policy. [Citation.] It merely involves a determination whether the housing element includes the statutory requirements. [Citation.] . . . [The] court looks only to ensure that the requirements of section 65583 are met, not whether the programs adopted are adequate to meet their objectives or are the programs the court thinks ought to be there . . . ." (Fonseca, supra, 148 Cal.App.4th at p. 1185.) "[T]he courts role in determining a mandamus challenge to a localitys housing element is simply to determine whether the locality has satisfied statutory requirements." (Ibid., italics added.)
The Least Cost Zoning Law is intended to work in concert with the Housing Element Law. (Fonseca, supra, 148 Cal.App.4th at p. 1186.) Section 65913.1 provides in part that "[i]n exercising its authority to zone for land uses and in revising its housing element . . ., a city, county, or city and county shall designate and zone sufficient vacant land for residential use with appropriate standards, . . . in relation to growth projections of the general plan to meet housing needs for all income categories as identified in the housing element . . . ." (§ 65913.1.)
B. Compliance With the Housing Element and Least Cost Zoning Laws
While the statutory scheme and the Countys housing element are complex, the issues here are relatively straightforward. Plaintiffs dispute "the validity of the Countys housing element based on the fact that the housing element lacks adequate sites." While they do not dispute that the Revised Element identified adequate sites in December 2004, they assert that, as of July 1, 2007, the sites identified were no longer adequate because no rezoning had been completed. Plaintiffs base their argument on the Departments December 27, 2004 letter, which stated in part: "The Departments finding of compliance is conditioned on the Countys successful implementation of Action 4.2 to rezone at least 50 acres allowing 29 units per acre, by-right, where water and sewer capacity will be available by July 1, 2007. . . . [¶] . . . If the [Countys] annual report reveals Action 4.2 has not been implemented, the element will no longer identify adequate sites and will require immediate amendment to provide adequate sites." Plaintiffs also claim that the failure to complete the rezoning by July 1, 2007, which is undisputed, violated the Least Cost Zoning Law.
In the trial court, the parties agreed that the focal issue was the validity of the housing element as of December 14, 2004, the date the amended housing element was adopted, under the law as it existed on that date. Plaintiffs now assert that "Countys housing element was, as of July 1, 2007, and continues to be, out of compliance with state law," on the basis that no rezoning had been completed by that date.
The court in Fonseca considered the requirement of identification of "adequate sites." There, the plaintiffs urged that "with respect to former section 65583, subdivision (c)(1)(A) . . . the `adequate sites provision further required that for each of the specifically identified sites, the program must have included a statement of the additional government actions the City will take to make that site immediately available. [¶] The City, for its part, contend[ed] that the adequate sites requirement of former section 65583, subdivision (c)(1)(A), contemplated that a site may be adequate without being presently or immediately available for development. In other words, sites which are suitable for development may still be `adequate even though zoning and public service constraints to development still exist. Under the Citys interpretation of the former subdivision, all that was required to substantially comply with it was inclusion in the housing element of a plan to make sites available that are suitable for development by removal or amelioration of these constraints." (Fonseca, supra, 148 Cal.App.4th at pp. 1203-1204.)
The Fonseca court concluded that the former "statutory language did not require that sites be immediately available for development in order for them to be `adequate. Nor did it require a showing of the feasibility of development on individual sites. Nor did it require that actions designed to ameliorate developmental or zoning constraints be scheduled to occur at any particular point early in the planning period so that actual development could be completed within that period. Instead, the statute simply required a statement of administrative plans scheduled to occur over a five-year period—i.e., a program—to implement the policies, goals, and quantified objectives of the housing element. The program was merely required to identify `adequate sites which will be made available through appropriate zoning and development standards and with services and facilities needed to facilitate and encourage the development of a variety of types of housing for all income levels . . . in order to meet the [Citys] housing goals . . . . " (Fonseca, supra, 148 Cal.App.4th at p. 1204, citing former § 65583, subd. (c)(1)(A), fn. omitted.)
In its Revised Element, County identified a sufficient number of sites which would "be made available through appropriate zoning and development standards." (Fonseca, supra, 148 Cal.App.4th at p. 1204, italics omitted.) Mendocinos Revised Element of Countys general plan provided an extensive, detailed, community-by-community inventory of potential residential sites, which included preliminary constraints to residential development and actions to reduce those constraints. Plaintiffs do not assert that the Revised Element was inadequate at the time of its adoption.
Though Fonseca, supra, 148 Cal.App.4th 1174 would appear to be dispositive, plaintiffs argue it is inapplicable, asserting "the instant case is entirely different from Fonseca because here, the dispute is whether there are adequate sites identified for the development of affordable housing, not whether the sites in the Countys inventory are identified with the requisite specificity." Plaintiffs also claim that "the main issue" in Fonseca was whether the housing inventory at issue there identified sites with the "requisite level of specificity . . . in accordance with state legislation passed in 2004."
To the contrary, in Fonseca the plaintiffs raised both the "adequate sites" requirement and the specificity requirement, and the court addressed both. (Fonseca, supra, 148 Cal.App.4th at pp. 1188, 1192, 1202-1207.) And, Fonseca specifically considered the former version of section 65583 in effect in 2002, not the "legislation passed in 2004," effective January 1, 2005. (Fonseca, supra, at pp. 1202-1206.) As the Fonseca court held, "we conclude that the City substantially complied with the requirements of former section 65583, subdivision (c)(1)(A), to provide `adequate sites. " (Fonseca, supra, at p. 1206, italics added.) Accordingly, Fonseca addressed the "adequate sites" issue raised here, applying the same former version of section 65583.
There is no real dispute that County complied with the statutory "adequate sites" requirement under the applicable law in 2004, as explained in Fonseca, supra, 148 Cal.App.4th 1174. Plaintiffs instead make a novel claim of retroactive noncompliance: that a housing element that is in compliance on the date it is adopted can become noncompliant if the County fails to complete action items identified in the plan. They maintain that Countys failure to rezone by July 1, 2007, triggered the Revised Elements noncompliance as of that date. Our review, however, considers Countys Revised Element, and whether it met the statutory requirements in effect when it was adopted, on the date it was adopted.
Likewise, plaintiffs have failed to demonstrate that County did not comply with the Least Cost Zoning Law. As noted by the trial court, while it is undisputed that the rezoning was not completed as of July 1, 2007, the Least Cost Zoning Law does not contain any requirement that "the rezoning occur immediately after or at any particular time in relation to the adoption of the housing element." Moreover, the current planning period to which Countys housing element applies has not expired. The rezoning contemplated in Action 4.2 may be completed before the end of the current planning period in August 2009.
The statutory scheme now provides for a remedy if a county failed to make available adequate sites. Section 65584.09, effective January 1, 2006, for housing elements due on or after that date, provides that if a "county in the prior planning period failed to identify or make available adequate sites to accommodate that portion of the regional housing need . . ., then the . . . county shall, within the first year of the planning period of the new housing element, zone or rezone adequate sites to accommodate the unaccommodated portion of the regional housing need allocation from the prior planning period. [¶] . . . [These requirements] shall be in addition to any zoning or rezoning required to accommodate the jurisdictions share of the regional housing need . . . for the new planning period." (§ 65584.09, subds. (a), (b).)
While we agree with the trial courts assessment that "[plaintiffs] are understandably frustrated and greatly disappointed at the glacial pace with which the County has implemented the program rezoning," our independent review leads us to agree that Countys Revised Element complied with the Housing Element Law in effect on the date it was adopted, and that the Least Cost Zoning Law did not require the rezoning to occur before the end of the planning period.
We note that the trial court was disturbed by the "glacial pace" of the Countys implementation of the Housing Element component. We do not mean to minimize the Countys failure to rezone by its self-imposed date of July 1, 2007, or by its failure to do so by December 24, 2007, when the court rendered its decision. If this case had come before us in a different pleading and evidentiary posture, the result may well have been different.
IV.
DISPOSITION
The judgment is affirmed.
We concur:
Margulies, J.
Graham, J.