Latinos Unidos Del Valle De Napa Y Solano v. County of NapaLatinos Unidos Del Valle De Napa Y Solano v. County of Napa
Lead Opinion
Opinion
Latinos Unidos Del Valle de Napa y Solano (Latinos Unidos)
Procedural History
Latinos Unidos commenced this action in November 2009. In July 2010, Latinos Unidos along with the individual plaintiffs filed a second amended petition for writ of mandate and complaint for declaratory and injunctive relief. Plaintiffs allege that the county’s zoning scheme discriminates against low-income and very-low-income persons in violation of section 65008; that the zoning scheme violates the federal Fair Housing Act, the California Fair Employment and Housing Act and section 65008 in that it discourages and interferes with the development of affordable housing, which has a disparate impact on Latinos and people with disabilities; that the county’s housing element fails to comply with California’s housing element law; and that the county’s density bonus ordinance сonflicts with the state density bonus law.
Discussion
I. The County’s Housing Element
H. Density Bonus Law
In 1979, the Legislature enacted the density bonus law, section 65915, which aims to address the shortage of affordable housing in California. (Friends of Lagoon Valley v. City of Vacaville (2007)
Soon after its adoption, plaintiffs amended their complaint in this action to include a cause of action alleging that the county’s amended density bonus ordinance conflicts with the state density bonus law. Plaintiffs allege that the county ordinance impermissibly requires the developer to include a higher percentage of affоrdable units than section 65915 requires in order to obtain a density bonus.
In Friends of Lagoon Valley v. City of Vacaville, supra,
The county’s attempt to distinguish Friends of Lagoon Valley v. City of Vacaville is not persuasive. The county argues that although it may be clear that the statute imposes no cap on how much of a density bonus may be granted by a local entity, there is an ambiguity as to whether the local authority may increase the percentage of affordable housing units necessary to qualify for a density bonus. The county argues that the words “seeks and agrees” in section 65915, subdivision (b) imply that the county has discretion to set the minimum requirements for a density bonus. The key sentence on which this argument is based reads: “A city, county, or city and county shall grant one density bonus . . . and incentives or concessions . . . when an applicant for a housing development seeks and agrees to construct a housing development . . .” with certain percentages of affordable housing. (§ 65915, subd. (b), italics added.) The county argues, “The definitions of both ‘seek’ and ‘agree’ connote action that is discretionary and volitional, rather than mandatory, and support the county’s requirement that a dеveloper go above and beyond the minimum to receive any density bonus.” To resolve this purported ambiguity, the county suggests we consider the legislative history of recent amendments of the statute.
Before resorting to legislative history, however, there must in fact be an ambiguity in the words of the statute. (People v. Cornett (2012)
Were there any ambiguity, the legislative history provides little help in clarifying it. Although the legislative history does indicate that some legislators sought to impress the county’s interpretation into the statute, others disagreed. The exchange within the Legislature is at best inconclusive. As explained in the trial court’s discussion of the legislative history, “When Government Code section 65915 was amended in 2005, the original bill was initially amended to delete the phrase ‘seeks and agrees to construct.’ Ultimately, however, the language was reinserted into the bill and included in the statute as amended. An analysis of the third reading of the bill as amended on August 18, 2005, notes spеcifically that the ‘seeks and agrees to construct’ language that was added back to the bill on June 21, 2005 ‘was intended to clarify that these density bonus requirements only apply when either: 1) a local government does not have an inclusionary housing ordinance or 2) an applicant proposes to include affordable units over and above those required by a locally adopted ordinance. That amendment was adopted by the Assembly Housing Committee to clarify that issue.’ [f] Contrarily, a Senate floor analysis prepared on August 22, 2005, states that the Assembly amendment reinserting the ‘seeks and agrees to construct’ language ‘means that any affordable housing units in a development count toward meeting density bonus requirements, regardless of whether or not affordable units are required to be constructed by the local government pursuant to a local ordinance.’ However, another Senate floor analysis, prepared by apparently the same person 7 days later, deletes the foregoing interpretation from the analysis. It also includes the following argument by the author of the bill in support of it: [j[] ‘When AB 435 was heard in the Assembly Housing and Community Development Committee the bill was amended in order to not place the bill at risk. One of the amendments restored the law pertaining to subdivision (b)(1). This subdivision relates to whether an applicant “agrees” to construct affordable units. My statement before the committee concerning the amendment was: “. . . A handful of local jurisdictions have argued since 1979 that the density bonus law does not apply until inclusionary requirements have been met. The vast majority of cities, counties and experts take the opposite view, as do I. By adding back language that has been the law since 1979 [the ‘seeks and agrees to construct’], we will enable this handful of jurisdictions to continue to make their strained argument, but that is not troubling because the language has consistently been interpreted for 25 years by the vast majority of cities, counties and experts to mean that inclusionary requirements count toward meeting density bonus requirements.’ ”
The county suggests that if the ordinance is otherwise invalid, the ordinance is “saved” by the provision in Napa County Municipal Code section 18.107.190 that states, “If any section of this chapter conflicts with Government Code Section 65915 or other applicable state law, state law shall supersede this chapter.” It argues, “if application of the ordinance to any specific development proposal conflicts with the state Density Bonus Law, the county may not enforce it” and'“[f]or this reason alone, this court may affirm the judgment.”
The county relies on Shea Homes Limited Partnership v. County of Alameda (2003)
Disposition
The judgment is reversed insofar as it finds in favor of the county on plaintiff’s second cause of action to compel the county to comply with the state density bonus law but is affirmed in all other respects. The matter is remanded to the trial court for entry of a writ of mandate consistent with this opinion. The parties shall bear their respective costs on appeal.
Siggins, J., and Jenkins, J., concurred.
Notes
Latinos Unidos is a nonprofit public benefit corporation that advocates for “nondiscriminatory development policies ... that address the needs of all economic segments of the population” in Napa County.
All statutory references are to the Government Code unless otherwise noted.
See footnote, ante, page 1160.
Section 65915 provides in relevant part: “(a) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city, county, or city and county, that local government shall provide the applicant with incentives or concessions for the production of housing units and сhild care facilities as prescribed in this section. All cities, counties, or cities and counties shall adopt an ordinance that specifies how compliance with this section will be implemented. . . . [f] (b) H] (1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as specified in subdivision (f), and incentives or concessions, as described in subdivision (d), when an applicant for a housing development seeks and agrees to construct a housing
Plaintiffs also argue that the county ordinance impermissibly (1) requires long-term affordability covenants on moderate-income units; (2) requires a developer to build at a higher density than allowed by the zoning code in order to qualify for incentives; and (3) restricts concessions and incentives and requires unduly burdensome documentation to receive a density bonus. The trial court refused to consider these arguments, finding that plaintiffs had failed to exhaust their administrative remedies with respect to them, as required by section 65009, subdivision (b)(1), which provides that except in limited inapplicable exceptions, “[i]n an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly noticed public hearing, the issues raised shall be limited to those raised in the public hearing or in written correspondence delivered to the public agency prior to, or at, the public hearing . . . .” We agree with the trial cоurt. On appeal, plaintiffs have not identified any specific reference in the documents submitted to the board in which they raised these issues. Rather, they claim that they submitted a letter to the board which “[i]n addition to raising specific concerns regarding the issue
See footnote, ante, page 1160.
Concurrence Opinion
I fully concur in the decision of the court. I write separately to express my view that a civil action and subsequent appeal, even with calendar preference, will rarely provide an efficacious remedy to address a deficiency in the general planning process.
Work began to update Napa County’s (the county) housing element in January 2008, аnd it was adopted by the board of supervisors that June. This lawsuit was filed in November 2009. The trial court issued its statement of decision and ruled against plaintiffs on February 1, 2012. The briefing was complete in this court at the end of February 2013. The housing element is to next be revised and updated by June 2015. Thus, we are well into the planning period for the next update.
Against this backdrop, we are to consider whether a challenged plan actually complies in substance with every reasonable objective of the general plan statute. (Camp v. Board of Supervisors (1981)
In a case like this one where the challengers point to no alternative that would readily fulfill the objectives of the statute, and none is readily apparent in the record, judicial rejection of the plan will only create more uncertainty. Hеre, I urge the county to carefully consider during this planning period the reservations expressed in Justice Poliak’s majority opinion of the feasibility of the selected sites, particularly Napa Pipe.
Appellants’ petition for review by the Supreme Court was denied October 16, 2013, S212740.