The Year in Review: Ten Environmental and Land Use Cases from 2011

The Year in Review: Ten Environmental and Land Use Cases from 2011

In this Analysis, Daniel P. Selmi discusses trends over the last year in environmental and land use case law from California appellate courts and the federal Ninth Circuit Court of Appeals involving appeals from district courts in California. He writes:

VII. Housing: A Rare Appearance for the "Anti‑Nimby Law"

     At various times the Legislature had tinkered with the Planning and Zoning law in attempts to restrict the ability of local governments to arbitrarily deny housing projects, particularly low and moderate income housing. One such effort is the Housing Accountability Act [Cal. Gov. Code § 65589.5]. A subsection of this statute provides (generally) that if a "proposed housing development project" complies with general plan and zoning standards, then the local government cannot reject it without making specific findings. The key finding is that the project "would have a specific adverse impact upon the public health or safety unless disapproved" and there is no way to mitigate that impact.

     In Honchariw v. County of Stanislaus [(2011) 200 Cal. App. 4th 1066, 132 Cal. Rptr. 3d 874] [enhanced version available to lexis.com subscribers], the Act-which the court said is also known as the "Anti‑NIMBY law"-made a rare appearance in the appellate reports. Both the County of Stanislaus Planning Commissioners and the Board of Supervisors decisively turned down a subdivision. The developer then sought judicial review, arguing that the county was required to make the findings under the Housing Accountability Act and had not done so.

     The court agreed with the plaintiff. First, it rejected the county's defense that the Act applied only to so‑called "affordable housing projects." The county's argument was that the findings requirement is located within a statute whose other provisions involve affordable housing; thus, it too must only cover affordable housing. The court, however, concluded that, on its face, the finding requirement was not so limited. Instead, it applied to all projects included in the statutory definition of the term "housing development project," and that definition does not limit the statute's sweep to affordable housing projects. Furthermore, nothing in the legislative history indicated such a limitation [200 Cal. App. 4th at 1075].

     The court then turned to the county's argument that findings were not required because the project did not comply with "applicable, objective general plan and zoning standards and criteria, including design review standards" [Cal. Gov. Code § 65589.5(j)]. Here, the county cited a local ordinance that required connection to a county water system. But the court quickly brushed this ordinance aside. It first questioned whether this was a "design review standard" within the meaning of the statute. But, without deciding that issue, it found the ordinance inapplicable on the basis that the connection requirement applied only when a developer or owner actually attempts to build a home on the lots. Thus, at the earlier subdivision stage, the ordinance was not yet "applicable" within Cal. Gov. Code § 65589.5(j).

     The latter holding is questionable. The ordinance defined public water systems as "available" when they were within 2,640 feet "of any of the property being subdivided" [200 Cal. App. 4th at 1069 n.3 (emphasis added)]. That language seems to indicate that the ordinance applies at the time of the subdivision, not later. However, it is the other part of the court's opinion that is important. The court confirmed that the findings requirement applies to subdivisions across‑the‑board, not just to affordable housing projects. If applied seriously (and the Honchariw court certainly took it seriously), the statute could limit local government discretion in denying projects. If so, the appellation "Anti‑NIMBY law" could prove an accurate moniker.

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