Anti-NIMBY Law Applies To All Proposed Housing Development Projects

November 21, 2011 | Bulletin No. 985904.1

A recent appellate case held that the “Anti-NIMBY” statute that limits a local government’s ability to reject a proposed housing development applies to all housing projects, not just those that include affordable housing. (Honchariw v. County of Stanislaus (--- Cal.Rptr.3d ----, Cal.App. 5 Dist., November 14, 2011).)

Update

Please see our updated Legal Alert on this case entitled, "Update: Attorney Fees Provision in Government Code Section 65589.5(k) is Limited to Affordable Housing Developments", September 9, 2012.

Facts

Nicholas Honchariw ("Developer") proposed to divide a 33.7-acre tract in Stanislaus County ("County") into eight parcels ranging in size from one-half acre to five acres. A portion of the proposed housing development would be located within the Knights Ferry Community Services District, which issued a letter stating it would not provide water service to the development other than service to the one existing dwelling on the original parcel. The County Code requires all subdivision lots to be connected to a public water system whenever a system is available. Developer applied for an exception to the public water system requirement, but the County Planning Commission denied the request for both the exception and the subdivision project application.

Developer appealed the Commission's decision to County's Board of Supervisors ("Board"), which voted to disapprove Developer's subdivision project application and deny his request for an exception. The Board failed to make any findings pursuant to Government Code section 65589.5. The purpose of section 65589.5, sometimes referred to as the "Anti-NIMBY law," is to limit a local government's ability to reject a housing development or otherwise make a development infeasible without first conducting a thorough analysis of the economic, social and environmental effects of its decision. Section 65589.5(j) provides that where a proposed housing project complies with the local government's general plan and zoning standards, including design review standards, but the local agency proposes to disapprove of the housing development project, the agency must make written findings supported by substantial evidence that the "project would have a specific adverse impact upon the public health or safety" and there is no way to mitigate or avoid that adverse impact unless the agency disapproves the project.

Developer brought an administrative mandamus action in response to the Board's decision. The trial court found that Board was not required to make section 65589.5(j) findings because Developer's project did not comply with the County's public water system requirement.

Decision

The Court of Appeal held the trial court erred in concluding that Developer's proposed project did not comply with the County water system requirement, and reversed the decision of the trial court.

The Court first rejected County's argument that Government Code section 65589.5 applies only to those proposed development projects that involve affordable housing. Section 65589.5(h) defines the phrase "housing development project" as a use consisting of residential units only, mixed-use developments where commercial use is limited to the first floors of buildings that are two or more stories, and transitional or supportive housing. Developer's project involves only single-family dwellings. The Court found Developer's proposed use falls squarely within the express definition contained in subdivision (h). Nothing in the legislative history of section 65589.5 supports County's assertion that it applies only to proposed housing development projects that involve affordable housing.

The Court found that the County failed to show that Developer's proposed project does not comply with applicable general plan and zoning standards and criteria. While the Board made no section 65589.5 findings of adverse impact because it believed that such findings were not needed if it found the proposed site was not physically suitable for Developer's project, the Court found Board was mistaken. The Court held that if a local agency denies approval of a proposed housing development project for a reason other than compliance with zoning standards and criteria including design review standards, the local agency must make the written findings required by section 65589.5(j).

Even if the County water supply requirement can be construed as a design review standard, the Court found that there is no evidence Developer failed to comply with it. Lots in a subdivision cannot be connected to a public water system until the subdivision actually exists to be divided into lots. The Court held that Developer will have no lots to connect unless and until his tentative map is approved and further steps are taken on the project, so the conclusion that the proposed project fails to comply with the County water supply requirement is premature.

The Court concluded that the Board failed to proceed in a manner required by law when it denied Developer's application for the proposed housing development because the Board failed to either make the appropriate findings under section 65589.5(j) or show how the proposed project fails to comply with general plan and zoning standards.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey | 916.321.4500

Jon E. Goetz | 805.786.4302