California Court of Appeals, First District, Third Division
LATINOS UNIDOS DEL VALLE DE NAPA Y SOLANO et al., Plaintiffs and Appellants,
COUNTY OF NAPA, Defendant and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION[*]
Superior Court of Napa County, No. 26-50568 Honorable Raymond Guadagni Trial Judge
Counsel for plaintiffs and appellants: Relman, Dane & Colfax PLLC Reed N. Colfax D. Scott Chang David Grabill California Rural Legal Assistance, Inc. Ilene J. Jacobs California Affordable Housing Law Project of the Public Interest Law Project Craig Castellanet Michael Rawson California Rural Legal Assistance, Inc. Jeffrey Hoffman Richard A. Marcantonio and Samuel P. Tepperman-Gelfant for Public Advocates Inc. as amicus curiae on behalf of appellants.
Counsel for defendant and respondent: Goldfarb & Lipman LLP Juliet E. Cox Barbara E. Kautz County Of Napa Minh C. Tran, County Counsel Silva Darbinian, Chief Deputy County Counsel Jennifer B. Henning for California State Association of Counties as amicus curiae on behalf of respondent.
Pollak, Acting P.J.
Latinos Unidos Del Valle de Napa y Solano (Latinos Unidos) and individual plaintiffs Hector Olvera, Antonio Manzo, and Gabriel Deharo appeal from a judgment entered in favor of defendant County of Napa (the county) on their petition for a writ of mandate. Plaintiffs contend that the court erred in rejecting their contentions that (1) the county’s 2009 housing element does not substantially comply with the state Housing Element Law (Gov. Code,  § 65580 et seq.); (2) the county’s density bonus ordinance conflicts with the state Density Bonus Law (§ 65915); and (3) the county’s zoning ordinances discriminate against affordable housing and lower income persons in violation of section 65008 and against Latinos and people with disabilities in violation of the federal Fair Housing Act (42 U.S.C. § 3601 et seq.), the state Fair Employment and Housing Act (§ 12900 et seq.) and section 65008. Although we agree with the trial court’s conclusions in most respects, in the published portion of this opinion we conclude that the county’s density bonus ordinance unlawfully conflicts with the state Density Bonus Law. Accordingly, we shall reverse the judgment in that one respect and remand the matter with appropriate instructions.
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 state 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 conflicts with the state Density Bonus Law.
In May and June of 2011, the trial court conducted a hearing on plaintiffs’ challenges to the county’s housing element, after which the court issued an order holding that the housing element “substantially complied” with state law. The trial court then conducted a multiday hearing on plaintiffs’ remaining claims and on February 1, 2012, issued a statement of decision finding in favor of the county on all other claims. Plaintiffs filed a timely notice of appeal.
I. The County’s Housing Element
A. Summary of the Housing Element Law
Declaring housing availability to be of “vital statewide importance” and the “attainment of decent housing and a suitable living environment... a priority of the highest order, ” the Legislature enacted the Housing Element Law, which requires local governments to adopt a “housing element” as a component of its general plan. (§ 65580 et seq., added by Stats. 1980, ch. 1143, p. 3697, § 3; Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1183 (Fonseca).) The purpose of the Housing Element Law is, among other things, “[t]o assure... cities [will] recognize their responsibilities in contributing to the attainment of the state housing goal, ” including “housing affordable to low- and moderate-income households.” (§§ 65580, subd. (c), 65581, subd. (a).) A local government’s housing element must be reviewed and revised every five to eight years. (§§ 65583, 65588, subds. (b), (e).)
The housing element of a general plan must contain specific components, analyses, goals and policies. (§ 65583.) The housing element must include, among other things, “[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.” (§ 65583, subd. (a)(3).) This inventory of land “shall be used to identify sites that can be developed for housing within the planning period and that are sufficient to provide for the jurisdiction’s share of the regional housing need for all income levels.” (§ 65583.2, subd. (a).) The housing element must also include “[a] statement of the community’s goals, quantified objectives, and policies relative to the maintenance, preservation, improvement, and development of housing” (§ 65583, subd. (b)(1)), as well as “[a] program which sets forth a schedule of actions during the planning period, each with a timeline for implementation, ... that the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the housing element through the administration of land use and development controls, the provision of regulatory concessions and incentives, the utilization of appropriate federal and state financing and subsidy programs when available, and the utilization of moneys in a low- and moderate-income housing fund of an agency if the locality has established a redevelopment project area....” (§ 65583, subd. (c).) The program “must identify a sufficient number of sites that will be made available through appropriate zoning and development standards to meet the quantified objectives for housing for all income levels. And if the program does not identify sufficient sites to satisfy the need for housing for all income levels, it must... identify sufficient sites to be zoned for multifamily housing for low and very low income residents.” (Fonseca, supra, 148 Cal.App.4th at p. 1183, citing §§ 65583, subd. (c)(1), 65583.2, subd. (h).)
“In creating [or revising] its housing element, the local government is required to consider the advisory guidelines adopted by the [department]. [Citation.] The locality is also required to submit draft housing elements or amendments to the department prior to adoption. [Citation.] The [d]epartment, in turn, must review drafts and make written findings as to whether the draft substantially complies with the requirements of [the housing element law]. [Citation.] The local government must then consider the [d]epartment’s findings. [Citation.] If the findings reflect noncompliance in the [d]epartment’s judgment, the locality must either change the draft, so that it substantially complies with [the housing element law], or adopt the draft without changes, explaining why the draft substantially complies despite the [d]epartment’s findings. [Citation.] Under section 65589.3, the housing element (or its amendment) enjoys a rebuttable presumption of validity if the [d]epartment makes a finding that it substantially complies with the [statutory] requirements.... The statute does not provide for the converse, i.e., there is no presumption of invalidity on the basis of the [d]epartment’s finding of noncompliance.” (Fonseca, supra, 148 Cal.App.4th at pp 1183-1184.)
B. Standard of Review
A housing element may be challenged by “any interested party” through a traditional mandamus action under Code of Civil Procedure section 1085. (§§ 65587, subds. (b), (d)(2), 65583, subd. (h).) When an interested party challenges a housing element, the trial court’s 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.]” ’ [Citations.]... [T]he court’s role in determining a mandamus challenge to a locality’s housing element is simply to determine whether the locality has satisfied statutory requirements. It is not to reach the merits of the element or to interfere with the exercise of the locality’s discretion in making substantive determinations and conclusions about local housing issues, needs, and concerns.” (Fonseca, supra, 148 Cal.App.4th at p. 1185; see also Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 978-980; Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542, 550.)
On appeal, the appellate court independently determines as a question of law whether the housing element substantially complies with the requirements of the housing element law. (Fonseca, supra, 148 Cal.App.4th at p. 1191.) In our independent review of the legal adequacy of the housing element, we afford no deference to the trial court’s conclusions. (Ibid.) “On the other hand, a city's adoption of a housing element is a legislative enactment, something which is generally entitled to some deference. There is a presumption that the adopted element is valid and we do not in the course of our review evaluate the municipality’s determination of policy. [Citation.] The burden is on the challenger to demonstrate that the housing element, and by extension the general plan, is inadequate. [Citation.] If the municipality has substantially complied with statutory requirements, we will not interfere with its legislative action, unless that action was arbitrary, capricious, or entirely lacking in evidentiary support.” (Ibid.)
The department’s interpretation of the legal effect and meaning of the housing element law is also entitled to deference. (Fonseca, supra, 148 Cal.App.4th at pp. 1193-1194 [court must “exercise our independent duty to state the meaning of the statutes at issue here, giving consideration to the [d]epartment’s views”].) Any deference afforded the department’s general statutory interpretation, however, does not necessarily extend to the department’s specific findings—in this instance, that the county’s housing element fails to substantially comply with the housing element law. “The [d]epartment’s review of [a local government’s] housing element differs from our judicial review. The [d]epartment reviews not only to ensure the requirements of 65583 are met, but also to make suggestions for improvements.... However, a court looks only to ensure the requirements of 65583 are met and not whether, in the court’s judgment, the programs adopted are adequate to meet their objectives or are the programs which the court thinks ought to be there. While [a] court may be of the opinion [the local government] should adopt [the] [d]epartment’s recommendations, the Legislature has stated its recommendations are advisory.” (Buena Vista Gardens Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 306, citing § 65585, subd. (a).)
C. Procedural and Factual History
In January 2008, the county initiated an update to the housing element of the county’s general plan, for the period through 2014. As relevant to this action, the county’s 2009 updated housing element seeks to identify sites that can accommodate development of 158 housing units affordable to households with very low incomes and an additional 101 units affordable to households with low incomes, 259 total units being the number allocated to the county as its “fair share” of regional housing needs.
The county submitted a draft of its updated housing element to the department in November 2008 and in January 2009 received comments on the draft from the department. The department advised that revisions to the county’s inventory and analysis were necessary to comply with the state housing element law and included an appendix detailing what it identified as deficiencies in the draft housing element. In June 2009, after making changes in its draft to address the department’s comments, the county adopted its 2009 housing element.
The housing element includes an inventory of sites in the unincorporated portions of the county and indentifies 14 parcels in four areas that would be suitable for affordable housing, referred to as the “Angwin, ” “Moskowite Corner, ” “Spanish Flat” and “Napa Pipe” sites. The Napa Pipe sites sit adjacent to the City of Napa. The others are located “some distance from traditional employment centers like downtown Napa.” The Spanish Flat sites are located near Lake Berryessa. The Angwin sites are located east of Highway 29 between the cities of St. Helena and Calistoga. The Moskowite Corner sites are located at the intersection of Highways 121 and 128. The location of the four sites is depicted on the diagrammatic map attached to this opinion as an appendix. Angwin, Moskowite Corner, and Spanish Flat are all within the county’s “Affordable Housing Combination District” (AHCD) zoning district. 
The inventory concludes that without any rezoning Angwin can accommodate 80 housing units affordable to very low or low-income households, Moskowite Corner can accommodate 25 lower-income units, and Spanish Flat can accommodate 25 lower-income housing units. The housing element includes a program to “rezone 20 acres of the Napa Pipe property to allow housing development at a minimum density of 20 dwelling units per acre” and states that once rezoned, Napa Pipe can accommodate between 152 and 202 units that can be developed by right and an additional 102 to 152 units that can be developed following approval of a use permit or development agreement.
Approximately two months after the county approved the housing element, as amended to incorporate some of the department’s recommendations, the department notified the county that the housing element was not yet fully satisfactory. The department explained that while the “adopted element addresses most of the statutory requirements of housing element law, ” the inventory and analysis needed additional revisions in two respects, discussed below, to comply with the housing element law. The county has made no modifications to its housing element following this notification from the department.
D. The Record
Plaintiffs contend the trial court erred by requiring them to proceed on an administrative record and excluding additional evidence that they argue would have supported their challenge to the housing element. The county argues that the trial court properly applied Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 in requiring the production of an administrative record and excluding consideration of information outside that record. 
This court’s review of the housing element involves two issues: whether it substantially complies with the housing element law (§ 65580 et seq.) and, if it does, whether the county’s approval was arbitrary, capricious, or entirely lacking in evidentiary support. (Fonseca, supra, 148 Cal.App.4th at p. 1191.) While evidence outside the administrative record may be relevant to the question of substantial compliance (see Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1067), the latter question turns solely on the information known to the county at the time of its decision. (Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 571, 575-576.) Thus, while the court did not err in requiring preparation of the administrative record and limiting its consideration of the latter issue to evidence included in the record, the exclusion of some extra-record evidence relevant to compliance with the housing element law was not necessarily justified. We shall address the extra-record evidence proffered by plaintiffs in connection with the issues discussed below.
Plaintiffs contend that the housing element fails to analyze correctly the suitability for residential development of the four identified sites, three of which are far removed from population centers and the fourth is part of a highly contaminated former industrial site. We first consider plaintiffs arguments regarding the Spanish Flat, Angwin and Moskowite Corner sites and then turn to their arguments regarding the Napa Pipe site and related Program H-4e.
1. The Spanish Flat, Angwin and ...