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November 18, 2011

California’s Anti-NIMBY Statute Protects All Residential Development Projects, Not Just Affordable Housing

California’s Anti-NIMBY Statute Protects All Residential Development Projects, Not Just Affordable Housing

Honchariw v. County of Stanislaus [Fifth Appellate District No. F060788, filed November 14, 2011]

By Andrea A. Matarazzo

Sometimes referred to as the “Anti-NIMBY[1] law,” California’s Housing Accountability Act (Government Code section 65589.5) limits the ability of cities and counties to reject proposed housing development projects that are consistent with local plans and zoning regulations.  In order to disapprove a proposed residential development that complies with all applicable objective planning and zoning criteria, the local agency must make written findings, supported by substantial evidence, that: (1) the project would have a specific adverse impact on public health or safety, and (2) no feasible means exists to satisfactorily mitigate or avoid the impact.  (Gov. Code, § 65589.5.)

In this case, the project applicant maintained that his proposed project complied with “applicable, objective general plan and zoning standards and criteria, including design review standards,” and argued that the County of Stanislaus failed to make the findings required under section 65589.5 when the Board of Supervisors decided to disapprove it.  The County defended its decision to disapprove the project on two grounds.  First, the County argued that the Housing Accountability Act applies only to affordable housing projects, and the proposal at issue provided no affordable housing.  Second, according to the County, even if the Act applied to the project generally, the proposal was not consistent with the water service requirements of the County Code, such that the findings requirement did not apply.

The Fifth District Court of Appeal sided with the project developer on both grounds.  In the court’s view, the words of the statute were clear and unambiguous in defining the term “housing development project” as a use consisting of any of the following:

(A)  Residential units only.

 

(B)  Mixed-use developments consisting of residential and

nonresidential uses in which nonresidential uses are limited to

neighborhood commercial uses and to the first floor of buildings that

are two or more stories.  As used in this paragraph, “neighborhood

commercial” means small-scale general or specialty stores that

furnish goods and services primarily to residents of the

neighborhood.

 

(C)  Transitional housing or supportive housing.

Because the developer proposed one single-family dwelling on each of eight lots, and nothing more, the court found that “[t]he anticipated use is thus ‘residential units only,’ and fell within the plain meaning of the term “housing development project.”  Nothing in the statutory definition limited its application to projects with an affordable housing component, and the court was not persuaded otherwise by the County’s arguments regarding legislative history and statutory construction.

The court further found there was “nothing in this record which would support a conclusion that appellant’s project fails to comply” with all applicable planning and zoning criteria.  According to the court, the County’s conclusion that the project was not consistent with its water service requirements was “premature” and lacked evidentiary support.

The court’s ruling will not prevent the County from disapproving the project, if it so chooses, when it reconsiders the application.  This case shows, however, that County still must do so in a manner that reflects the policies underlying the Housing Accountability Act promoting residential development.

Authored by:

Andrea A. Matarazzo

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

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[1] /      “NIMBY” is an acronym for “Not-In-My-Back-Yard.”

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