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Honchariw v. County of Stanislaus

California Court of Appeals, Fifth District

August 8, 2013

NICHOLAS HONCHARIW, as Trustee, etc. et al., Plaintiffs and Appellants,
COUNTY OF STANISLAUS et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Stanislaus County, No. 642200 William A. Mayhew, Judge.

Nicholas Honchariw for Plaintiffs and Appellants.

Porter Scott, Carl L. Fessenden, and Thomas L. Riordan for Defendants and Respondents.




Appellant Nicholas Honchariw filed a vesting tentative map application with the County of Stanislaus that proposed subdividing a 33.7-acre parcel into large residential lots. The Board of Supervisors of the County of Stanislaus (Board) disapproved the application. Honchariw sued the Board and won on the ground that it disapproved his “proposed housing development project” without making the written findings required by Government Code section 65589.5, subdivision (j).[1] (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1070.) Our 2011 decision ordered the superior court to issue a writ of mandate directing the Board to reconsider Honchariw’s application and make written findings where appropriate. The Board’s compliance with the writ resulted in its approval of Honchariw’s application.

This appeal concerns Honchariw’s motion for attorney fees under subdivision (k) of section 65589.5 (section 65589.5(k)), which states that the court “shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner who proposed the housing development.…” (Italics added.) The superior court concluded that the phrase “the housing development” (1) was ambiguous and (2) was intended to include only affordable housing developments.[2] Because Honchariw’s project was not an affordable housing development, the superior court denied the motion for attorney fees.

In Honchariw v. County of Stanislaus, supra, 200 Cal.App.4th 1066, this court held that Honchariw’s project was a “proposed housing development project” for purposes of subdivision (j) of section 65589.5. That interpretation is not controlling in this appeal because the attorney fees provision in section 65589.5(k) uses different language (i.e., “the housing development”). This slight difference in language is important because the phrase “housing development project” is defined by section 65589.5, subdivision (h)(2). (Honchariw v. County of Stanislaus, supra, 200 Cal.App.4th at pp. 1072-1073.) In contrast, the phrase “housing development” is not defined by the Housing Accountability Act.

We conclude that the attorney fees provision in section 65589.5(k) is ambiguous and, therefore, we must adopt the interpretation that best effectuates the Legislature’s purpose. The legislative history for the bill that added the attorney fees provision to section 65589.5(k) states that the bill strengthens current law “by requiring a court to award attorney’s fees to an affordable housing developer that has had a project unfairly denied by a local agency.” (See fn. 9, post.) Based on this and other legislative history, we interpret the attorney fees provision in section 65589.5(k) to authorize an award of attorney fees only when “the housing development” in question contains affordable housing.

From a textual perspective, we conclude the term “the housing development” contained in section 65589.5(k) refers to the housing development that is the subject of the “order or judgment” mentioned earlier in that section. That “order or judgment” is issued only in cases where a local agency has rejected an affordable housing project or emergency shelter without making the required findings or without substantial evidence to support its findings. Because the “order or judgment” referred to in the statute reaches only affordable housing and emergency shelters, it follows that the term “the housing development” used in the attorney fees provision is limited to affordable housing developments.

We therefore affirm the superior court’s order denying attorney fees.


Honchariw proposed to divide a 33.7-acre parcel in the Knights Ferry area of Stanislaus County into eight parcels that would be used for residential purposes and one remaining parcel that would contain 12.03 acres of undeveloped land. In connection with this proposal, Honchariw submitted vesting tentative map application No. 2006-06 to the county planning commission.

In February 2009, the planning commission considered Honchariw’s application and his request for an exception to the county’s rule requiring that all subdivision lots be connected to a public water system whenever such a system is available. The county planning commission voted to deny Honchariw’s application and the request for an exception.

Honchariw filed an administrative appeal. In March 2009, the Board voted five-to-zero to disapprove the subdivision project application and to deny the request for an exception to the rule requiring connections to an available public water system. The Board did not make any of the findings specified in subdivision (j) of section 65589.5.

Honchariw challenged the Board’s disapproval by filing a petition for writ of mandamus. Honchariw, in his capacity of trustee of the Honchariw Family Trust, acted as the petitioner in the lawsuit.[3] He also acted as counsel of record for the petitioner under a contingent fee arrangement.

The superior court denied the petition, concluding that the Board was not required to make written findings under subdivision (j) of section 65589.5 when it denied the application.

In November 2011, we reversed the superior court’s judgment and ordered the court to issue a writ of mandate directing the Board to vacate its denial of Honchariw’s subdivision project application, reconsider the application, and make certain determinations and findings in the event that it again denied the application. (Honchariw v. County of Stanislaus, supra, 200 Cal.App.4th at pp. 1081-1082.)

In January 2012, the superior court issued the writ of mandate and directed the Board to file a return to the writ within 90 days.[4]

In February 2012, Honchariw filed a motion for attorney fees that proposed an award of $611, 400 to cover the time he had acted as the attorney for petitioner-trustee. Honchariw’s calculation of the award was based on 530 hours spent on the litigation[5] multiplied by an hourly rate of $600 and adjusted (except for fee-related hours) by a multiplier of 2.0. Honchariw’s declaration stated he discounted his hourly fee to $600 and compared the discounted rate to a billing rate of $925 per hour he had in the early 2000’s in a matter involving Ernest & Young.

In March 2012, the Board filed its opposition to the motion for attorney fees. The Board argued that section 65589.5(k) applied only to litigation involving certain low-income or affordable housing projects and, therefore, the motion should be denied. To support its interpretation of the statute, the Board requested the superior court to take judicial notice of three items of legislative history concerning section 65589.5.

The Board also argued that Honchariw could not recover attorney fees because he simultaneously acted as the petitioner-trustee and as the attorney for the trust. As to the amount claimed, the Board asserted the fees were grossly inflated based on (1) the lack of specificity in the hours claimed, (2) the excessive hourly billing rate, and (3) the request for a multiplier.

In late April 2012, the superior court held a hearing on the motion for attorney fees and a motion to tax costs filed by the Board.

On June 22, 2012, the superior court filed its written ruling on the motions. The court denied Honchariw’s motion for attorney fees, concluding “that the attorney fee provision of Government Code section 65589.5(k) is inapplicable in this case.” As a rationale for the statute’s inapplicability, the court stated that the wording of section 65589.5(k) seemed to limit the recovery of attorney fees to cases involving affordable housing and emergency shelters and the legislative history confirmed such an intention.

Later in June, the Board filed a supplemental return stating that (1) in May 2012 it approved Honchariw’s application in a four-to-one vote and (2) no findings were required under subdivision (j) of section 65589.5 because of the approval.

In July 2012, Honchariw filed a notice of appeal from the order denying the motion for attorney fees.



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