FONSECA v.CITY OF GILROY

Filed 3/23/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUED FROM PART I..

On the other hand, a citys 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 municipalitys determination of policy. (Garat v. City of Riverside, supra, 2 Cal.App.4th at p. 292; Buena Vista, supra, 175 Cal.App.3d at p. 298; Black, supra, 22 Cal.App.4th at p. 980.) The burden is on the challenger to demonstrate that the housing element, and by extension the general plan, is inadequate. (Garat v. City of Riverside, supra, at p. 293.) 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. (Hoffmaster v. City of San Diego, supra, 55 Cal.App.4th at pp. 1105-1106; Hernandez, supra, 28 Cal.App.4th at p. 1059; Garat v. City of Riverside, supra, at pp. 292-293; Buena Vista, supra, at p. 298.)

Accordingly, like the trial court, we do not review the merits of the housing element at issue or assess the wisdom of the municipalitys determination of policy. (Black, supra, 22 Cal.App.4th at p. 980.) Nor do we judge whether the programs adopted by the locality are adequate to meet their stated objectives. (Buena Vista, supra, 175 Cal.App.3d at pp. 298, 306.) Our review thus comes down to independently determining whether the housing element at issue is in substantial compliance with applicable statutory requirements, i.e., does it contain the elements mandated by the statute.

The parties offer differing views on the weight we are to afford in the course of our review to the Departments interpretation of statutory requirements of the Housing Element Law, as reflected in its Qs & As. Plaintiffs posit that judicial respect for the Departments interpretation of the Housing Element Law is mandated by general principles of administrative law under Yamaha Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 12 (Yamaha), and that we should accordingly give great weight to the Departments statements that (a) the inventory [required by section 65583, subdivision (a)(3)] must identify specific sites suitable for residential development, not merely undifferentiated acreages; and (b) the identification of adequate sites [pursuant to former section 65583, subdivision (c)(1)(A)] must [occur] soon enough in the planning period to reasonably permit development during the planning period.

The City, on the other hand, argues that as a matter of law, no authority requires judicial deference to the Departments interpretation of the Housing Element Law and that the independent standard of judicial review which we apply under section 65587, subdivision (b), affirmatively precludes such deference.[1]

In Yamaha, supra, the California Supreme Court addressed the question of the deference to be applied to a state agencys informal interpretation of a statute in contrast to that afforded to regulations adopted by an agency under quasi-legislative authority expressly delegated by the Legislature. While quasi-legislative regulations are of binding force as statements of the law, commanding judicial deference and receiving limited judicial review, an agencys informal interpretation of a statute is entitled to considerably less judicial deference, the courts being the constitutional arbiters of statutory meaning. (Yamaha, supra, 19 Cal.4th at pp. 7-15.) The standard for judicial review of agency interpretation of the law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action. (Id., at p. 8.) We accordingly take  ultimate responsibility for the construction of the statute, accord[ing] great weight and respect to the administrative construction. [Citations.]  (Id. at p. 12.) But the extent of judicial weight to be afforded is necessarily contextual and fundamentally situational. A court assessing the value of an interpretation must consider a complex of factors material to the substantive legal issue before it, the particular agency offering the interpretation, and the comparative weight the factors ought in reason to command. (Ibid.)

There are two categories of factors that are relevant to a courts assessment of the weight to be afforded to an agencys informal statutory interpretation. First, there are factors indicating a comparative interpretive advantage the agency has over the court due to, for example, the agencys authorship of the regulation at issue or the technical nature of the legal text under consideration. The second category includes factors indicating that the agencys interpretation of a rule is likely to be correct, such as the agencys adoption of a rule pursuant to the Administrative Procedure Act ( 11340 et seq.) after notice and an opportunity for public comment, or its longstanding maintenance of the interpretation in question. (Yamaha, supra, 19 Cal.4th at p. 12.) A few of these factors favoring judicial deference are indeed present here. Still, the Departments informal interpretation of statutory requirements is in no way binding on us and the weight to which we afford it depends ultimately on our assessment of its reasonableness.

Moreover, as recognized by the court of appeal in Buena Vista, in determining the legal adequacy of a housing element, the roles of the Department and the courts differ. The Department reviews not only to ensure the requirements of [section] 65583 are met, but also to make suggestions for improvements. . . . However, a court looks only to ensure the requirements of [section] 65583 are met and not whether, in the courts judgment, the programs adopted are adequate to meet their objectives or are the programs which the court thinks ought to be there. While this court may be of the opinion City should adopt Departments recommendations, the Legislature has stated its recommendations are advisory. ( 65585, subd. (a).) (Buena Vista, supra, 175 Cal.App.3d at p. 306.) We think these distinct roles ought to be reflected in the weight we afford to the Departments statutory interpretation of the Housing Element Law, as reflected in its Qs & As.

While we acknowledge that the Departments interpretation of the Housing Element Laws legal meaning and effect is the product of the Department having regularly dealt with these statutes falling within its administrative jurisdiction, we still must exercise our independent duty to state the meaning of the statutes at issue here, giving consideration to the Departments views. Courts must, in short, independently judge the text of the statute, taking into account and respecting the agencys interpretation of its meaning, of course, whether embodied in a formal rule or less formal representation. Where the meaning and legal effect of a statute is the issue, an agencys interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth. [Citation.] (Yamaha, supra, 19 Cal.4th at pp. 7-8.) Thus, the weight we afford here to the Departments Qs & As is in accordance with our view of the substantive merits of the Departments statutory interpretation. And to the extent plaintiffs contentions mirror the Departments interpretation of relevant aspects of the Housing Element Law in the Qs & As, our analysis necessarily considers those merits.

III. Analysis

A. Gilroys Adopted 2002 Housing Element Substantially

Complies With the Requirements of the Housing Element Law as Previously in Effect

1. Section 65583, subdivision (a)(3)

Section 65583 initially provides: The housing element shall consist of an identification and analysis of existing and projected housing needs and a statement of goals, policies, quantified objectives, financial resources, and scheduled programs for the preservation, improvement, and development of housing. The housing element shall identify adequate sites for housing, including rental housing, factory-built housing, and mobilehomes, and shall make adequate provision for the existing and projected needs of all economic segments of the community. Subdivision (a)(3), goes on to require that the housing element contain [a]n assessment of housing needs and an inventory of resources and constraints relevant to the meeting of these needs. The assessment and inventory shall include . . . [] . . . [] [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), italics added.)

The gist of plaintiffs primary contention is that Gilroys 2002 housing element failed to even substantially comply with section 65583, subdivision (a)(3), because the element, while providing an aggregate inventory of what the City identified as vacant sites and sites potentially available for development, did not identify any specific sites or provide analysis of zoning and facilities in relation to those identified, specific sites. This contention rests on the further assertion that the language of the statute, its interpretation by the Department in the Qs & As, and case law all mandated a statutory construction of this subdivision that required a site-specific inventory of land suitable for development, accompanied by site-specific analysis.

The City, for its part, contends that its housing element substantially complied with the statute because at the time, there was no requirement that the inventory identify specific sites both suitable for residential development and available to meet the housing needs and, thus, an aggregate listing or summary of vacant sites and sites having potential for redevelopment with general analysis of zoning and facilities was all that was required.

We agree with the City that prior to amendments to the Housing Element Law in 2004, there was no legislative enunciation of the level of detail or specific information required in the land inventory, other than what the language of former section 65583 itself provided. As we read the statute, neither this subdivision nor any other section of the Housing Element Law included a requirement that the land inventory comprise more than a listing of aggregate acreages in the various categories or that it be parcel or site specific. The word inventory, as used in the general sense employed in the statute does not necessarily imply, as plaintiffs would have it, that a detailed item-by-item list is called for. Stock, as in the quantity of materials on hand, is all that the land inventory in this context spoke to, in the absence of a statutory directive for further or more detailed criteria.[2] The statute thus required the inventory to include vacant sites and sites having potential for redevelopment, but did not require it to specifically identify each of such sites. ( 65583, subd. (a)(3).) Given the absence of a site-specific requirement for the land inventory itself, the further analysis of the relationship of zoning and public facilities and services to these sites, also called for by this subdivision likewise did not require site specificity. (Ibid.) Instead, prior to the 2004 amendments to the Housing Element Law, substantial compliance with section 65583, subdivision (a)(3), required only general analysis of zoning and public facilities to the inventoried sites, as catalogued or listed in the aggregate.

Our reading of what section 65583, subdivision (a)(3), previously required of the land inventory and accompanying analysis is confirmed by the 2004 statutory amendments to the Housing Element Law, effective 2005, which, according to the Legislative Counsels Digest, would revise the criteria for the inventory of sites. (Stats. 2004, ch. 724, 2d par.; Legis. Counsels Dig., Assem. Bill No. 2348 (2003-2004 Reg. Sess.), italics added.) Among these statutory changes is the addition of section 65583.2, which includes newly detailed requirements for the land inventory mandated by section 65583, subdivision (a)(3). According to the new statute, the inventory must now include a listing of properties by parcel number or other unique reference, [t]he size of each property and the general plan designation and zoning of each property, [a] map that shows the location of the sites included in the inventory, and for nonvacant sites, a description of the existing use of each property. ( 65583.2, subd. (b)(1), (2), (3), & (7).)

This new section also makes clear that the general descriptions of any environmental constraints to the development of housing within the jurisdiction and existing or planned water, sewer, and other dry utilities supply, including the availability and access to distribution facilities, both of which are now specifically required for the inventory, need not be identified on a site-specific basis. ( 65583.2, subd. (b)(4) & (5).) Thus, the new statute, while for the first time mandating an identification of the designated zoning of each site within the inventory, expressly does not require this same specificity with respect to public facilities and services. We conclude from this that the analysis of these infrastructure issues, as previously required under section 65583, subdivision (a)(3), likewise was not required to be site specific.

Plaintiffs characterize the 2004 statutory changes to the Housing Element Law as clarifying amendments and they point to two Assembly Committee Reports relating to the proposed amendments to suggest that the land inventory mandated by section 65583, subdivision (a)(3), the text of which remains the same, has always required site specificity. In comments, both reports say that then-current or existing law (i.e., pre-2005) required housing elements to include a land inventory identifying sites suitable for residential development by income level. (Assembly Com. on Appropriations, analysis of Assem. Bill No. 2348 (2003-2004 Reg. Sess.) as amended April 16, 2004, p. 2; Assembly Com. on Local Government, analysis of Assem. Bill No. 2348 (2003-2004 Reg. Sess.) as amended April 16, 2004, p. 2, italics added.)[3] However, both reports, like the Legislative Counsels Digest, also recognize that many of the statutory amendments proposed by Assembly Bill 2348 indeed would constitute changes to the law and that such changes would impose uniform and specific content requirements for the land inventory for the first time.

In any event, the statutory amendments themselves do not state that they are merely declarative of existing law. And even when legislative amendments do so state, a later Legislatures expression that statutory amendments are only intended to clarify what an earlier Legislature enacted are neither binding nor conclusive on courts, which are ultimately vested with the task of statutory interpretation. Coming at a time before our high courts definitive interpretation of a particular statute, such a legislative expression is merely entitled to consideration as a factor in a courts construction of the statute.[4] (Carter v. California Dept of Veterans Affairs, supra, 38 Cal.4th at p. 922.) A court engaged in statutory construction looks to all pertinent circumstances and considerations in deciding whether an amendment is a modification or clarification of a statute. (People v. Franklin (1999) 20 Cal.4th 249, 256.) And particularly when there is no definitive clarifying expression by the Legislature in the amendments themselves, we will presume that a substantial or material statutory change, as occurred here by the addition of section 65583.2 alone, bespeaks legislative intention to change, and not just clarify, the law. (Reidy v. City and County of San Francisco (2004) 123 Cal.App.4th 580, 592; Garrett v. Young (2003) 109 Cal.App.4th 1393, 1404-1405.)

There is a dearth of case law construing the inventory requirement of section 65583, subdivision (a)(3), either before or after the 2004 amendments to the Housing Element Law. Plaintiffs cite Hoffmaster as authority for the proposition that this part of the statute has always required a site-specific land inventory. But the court in Hoffmaster did not so hold. That case construed only the adequate sites requirement of former section 65583, subdivision (c)(1), as the land inventory requirement of subdivision (a)(3) was not in issue. In contrasting what it viewed as the differing specificity mandates between these two subdivisions with the adequate site requirement commanding more, the Hoffmaster court even referred to the land inventory as simply that which is generally required under section 65583, subdivision (a)(3). (Hoffmaster, supra, 55 Cal.App.4th at p. 1112, italics added, fn. omitted.) Plaintiffs reliance on Hoffmaster as authority for a pre-2005 site-specific inventory requirement under section 65583, subdivision (a)(3), is therefore misplaced.

The City, in turn, relies on Buena Vistaand Hernandez for its contention that section 65583, subdivision (a)(3), does not require the land inventory to be site specific. As in Hoffmaster, the issues before the court in Buena Vista did not involve the land inventory or judicial construction of the requirements of section 65583, subdivision (a)(3). In fact, all the issues raised in Buena Vista involved the various requirements of the then-current iteration of section 65583, subdivision (c). (Buena Vista, supra, 175 Cal.App.3d at pp. 298-299.)

The court in Hernandez was dealing with a challenge to the City of Encinitass housing element that asserted, among other things, that the element did not include an inventory of land as required by section 65583(a)(3) . . . . (Hernandez, supra, 28 Cal.App.4th at p. 1062.) The challenge more specifically contended that the subject housing element, while addressing vacant and underdeveloped sites, still only amounted to [a] simpl[e] catalogu[e of] the vacant acres already zoned residential (2434 acres), and there [had been] no manifest attempt to identify otherwise suitable land such as vacant or infill sites presently zoned commercial and no consideration given to mixed use potential, such as, for example, rental apartments. (Ibid.) Based on the courts discussion of the contents of the Encinitas housing element, we cannot tell if that element included an inventory that was site specific. It appears, as plaintiffs contend, that the challenge in Hernandez to the land inventory was not based on its lack of site specificity per se, but, instead, on its incompleteness. Still, the characterization by the Hernandez plaintiffs of the Encinitas inventory as a mere  catalogu[e of] the vacant acres already zoned residential  at least suggests criticism for a lack of site specificity. (Ibid.) And in upholding the trial courts rejection of the challenge to the housing element, the Hernandez court referred to and discussed what were apparently only generalized descriptions in the land inventory. These facts lead us to infer that the inventory in Hernandez was not site specific.[5] In any event, the court did not expressly decide that the land inventory required by section 65583, subdivision (a)(3), need not be site specific. It did not even discuss this particular question in its resolution of the case.

Despite not having the benefit of another courts construction of the land inventory requirement of section 65583, subdivision (a)(3), based on both the language of the statute and the significant 2004 Housing Element Law amendments affecting it, we conclude that prior to the 2004 amendments, neither the land inventory, nor its accompanying analysis, was required to be site specific. In so concluding, we acknowledge plaintiffs overarching point that without site specificity in the land inventory, the ultimate goals of the Housing Element Law of promoting and increasing the available stock of affordable housing in this state are more difficult to achieve. We also recognize as a practical matter that meaningful enforcement of the Housing Element Law, in all its component parts, may have been undermined without, among other things, a requirement of more specificity in the land inventory mandated by section 65583, subdivision (a)(3).[6] The Legislature, whose function it is to write the statutes, has apparently recognized this fact too, prompting its enactment of the 2004 amendments to the Housing Element Law, which in part address, in significant detail, the specificity of the land inventory. But the fact remains that in this case, we are dealing with the state of the Housing Element Law before those amendments, and we must construe, rather than rewrite, the statutes as we see them.

In light of our construction of section 65583, subdivision (a)(3), we now examine Gilroys land inventory and assessment, as provided in its 2002 housing element through the Housing Background Report as revised December 2001, to determine whether Gilroy substantially complied with the then-applicable legal requirements of the statute.[7] The parties do not dispute that the housing element contains an assessment of housing needs as required by section 65583, subdivision (a)(3). But as noted, the statute goes on to require an inventory of resources and constraints relevant to the meeting of these needs, which includes an 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).) Based on the parties opposing interpretations of this latter language, an issue we have resolved in the Citys favor, they dispute whether the element substantially complies with it.[8]

Section 7 of the Housing Background Report, entitled Development Potential and Evaluation of Constraints, provides an inventory and discussion of aggregated vacant sites and sites having potential for redevelopment (pp. 27-31). This includes a narrative review, which acknowledges a shortage of already zoned land within the city limits for the development of higher-density housing, and a table (7.1). The table summarizes the vacant residentially zoned lands in the City based upon (1) an inventory of vacant lands and the Citys current zoning; and (2) additional lands to be designated for higher density development based on implementation of the Neighborhood Districts^[[9]^] and rezoning based on the Land Use Plan Map of the Draft General Plan. An update of the Zoning Map and Zoning Ordinance (Action 1.A) and the Neighborhood Districts Implementation Strategy (Action 1.C) are identified as two of the General Plans highest priority items in Chapter 10 of the Draft General Plan . . . .

The table indicates that there had been 43 vacant acres already zoned R3, the second highest density designation, and that 48 additional acres would be added to this zoning category as a result of rezoning, for a total of 91 vacant acres zoned R3 that would potentially yield 1456 total housing units. The table further indicates that there had been zero vacant acres already zoned R4, the highest density designation, and that 39 additional vacant acres would be added to this zoning category as a result of rezoning, potentially yielding 1170 high density housing units.[10] In terms of sheer numbers, this is purportedly and facially sufficient to accommodate Gilroys remaining allocated ABAG fair share of low and very-low income housing units for the planning period882and then some.[11]

As for infrastructure analysis of the vacant lands available for residential development as shown in Table 7-1, the Housing Background Report notes (at p. 28) that all are contained within the City limits and therefore within the Citys Urban Service Area. While the full range of services and facilities do not currently exist in some of the larger planned areas for residential development (especially in the southeast portion of the City), the City and other agencies (e.g., Gilroy Unified School District) have master planned the entire area and will be implementing necessary facility and infrastructure improvements to support future residential development in these areas.

The Housing Background Report goes on to discuss a number of opportunities for redevelopment of under-utilized properties. It further addresses additional mechanisms to increase Multiple Family Development Potential, including through the update of the Gilroy Zoning Map, implementation of the Neighborhood Districts program, encouragement of mixed use development in the downtown area, the identification and encouragement of infill development, development of accessory units, and the establishment of minimum density limits in each residential land use category, all of which are projected to yield additional medium and high density housing units.

Finally, the Housing Background Report (p. 31.) notes that in the past, infrastructure issuesspecifically limited wastewater treatment capacityha[ve] been an obstacle to development in Gilroy, resulting in a significant reduction in housing development activity in the 1980s and early 1990s. Since completion of the new wastewater treatment facility, development activity has surged. [] At this time and for the foreseeable future, there are no infrastructure constraint issues that will limit housing development. However, infrastructure issues continue to be a major concern for community residents and city officials, particularly the timing of infrastructure, facility and service improvements with new development. These concerns are reflected in the General Plan policies, the Citys and School Districts development impact fees, and the Residential Development Ordinanceall of which attempt to manage the rate and location of growth; ensure that new development helps pay for the costs of new infrastructure needed to support it; and ensure that levels of service are maintained as new development is completed. Under the next heading entitled Potential Government Constraints, the Housing Background Report goes on to discuss these impact fees and the Residential Development Ordinance in greater detail.

We conclude that these portions of the Citys Housing Background Report, notwithstanding the lack of site specificity, demonstrate substantial compliance with section 65583, subdivision (a)(3), of the Housing Element Law as it existed prior to the 2004 amendments.[12] From the Housing Background Report, one can compare the regional housing need for the planning period by affordability with the residential development capacity under then-current zoning to determine whether additional programs were needed to address the entire regional need by income level. To conclude otherwise based on petitioners challenges under this subdivision would be to invalidate the housing element based on its merits. This would impermissibly exceed the scope of our judicial review. (Hernandez, supra, 28 Cal.App.4th at p. 1068; Buena Vista, supra, 175 Cal.App.3d at p. 302.)

2. Former Section 65583, subdivision (c)(1)(A)

Former section 65583, subdivision (c), provided that the housing element shall contain a program which sets forth a five-year schedule of actions the local government is undertaking or intends to undertake to implement the policies and achieve the goals and objectives of the housing element . . . . In order to make adequate provision for the housing needs of all economic segments of the community, the program shall do all of the following: [] (1)(A) Identify adequate sites which will be made availablethrough appropriate zoning and development standards and with services and facilities, including sewage collection and treatment, domestic water supply, and septic tanks and wells, needed to facilitate and encourage the development of a variety of types of housing for all income levels, including multifamily rental housing, factory-built housing, mobilehomes, housing for agricultural employees, emergency shelters, and transitional housing in order to meet the communitys housing goals as identified in subdivision (b).[13] (Stats. 2001, ch. 671,  2, italics added.) Section 65583, subdivision (b)(1), in turn provided, as it still does, that the housing element shall contain a statement of the communitys goals, quantified objectives, and policies relative to the maintenance, preservation, improvement, and development of housing. (Italics added.)

Plaintiffs challenge to Gilroys 2002 housing element under former section 65583, subdivision (c)(1)(A), comes down to the contention that the element, lacking a site-specific inventory, necessarily also lacked a program that identified adequate and specific sites to meet the regional housing need for the low and lower-income categories in enough time to permit development of such sites during the planning period. Relying principally on Hoffmaster, plaintiffs urge that a site is only  adequate  if it is  available for immediate development of housing of the kind needed and if it is a site on which that kind of housing can feasibly be built. (Italics omitted.) They contend that without a site-specific inventory containing information about the zoning, location, size, and existing use of each site, at a minimum, one cannot know if adequate sites have been identified in substantial compliance with former section 65583, subdivision (c)(1)(A). Without this knowledge, the argument goes, it is impossible to determine if government programs addressing zoning and infrastructure relative to specific sites are necessary under this subdivision in order to, within the planning period, meet regional housing needs at each income level. This argument is entirely dependent on a pre-2005 interpretation of section 65583, subdivision (a)(3), mandating a site-specific inventoryan interpretation we have rejected. Finally with respect to former section 65583, subdivision (c)(1)(A), plaintiffs contend that the adequate sites provision further required that for each of the specifically identified sites, the program must have included a statement of the additional government actions the City will take to make that site immediately available.

The City, for its part, contends that the adequate sites requirement of former section 65583, subdivision (c)(1)(A), contemplated that a site may be adequate without being presently or immediately available for development. In other words, sites which are suitable for development may still be adequate even though zoning and public service constraints to development still exist. Under the Citys interpretation of the former subdivision, all that was required to substantially comply with it was inclusion in the housing element of a plan to make sites available that are suitable for development by removal or amelioration of these constraints.

We conclude that plaintiffs overreach in their interpretation of former section 65583, subdivision (c)(1)(A). The statutory language did not require that sites be immediately available for development in order for them to be adequate. Nor did it require a showing of the feasibility of development on individual sites.[14] Nor did it require that actions designed to ameliorate developmental or zoning constraints be scheduled to occur at any particular point early in the planning period so that actual development could be completed within that period. Instead, the statute simply required a statement of administrative plans scheduled to occur over a five-year periodi.e., a programto implement the policies, goals, and quantified objectives of the housing element. The program was merely required to identify adequate sites which will be made available through appropriate zoning and development standards and with services and facilities needed to facilitate and encourage the development of a variety of types of housing for all income levels . . . in order to meet the [Citys] housing goals . . . . (Former  65583, subd. (c)(1)(A), italics added.)

The result in Buena Vistasupportsour conclusion. The court thererejected a challenge to a housing element on the basis that it did not meet the adequate sites requirement of former section 65583, subdivision (c)(1)(A). The court did so even though the element had not identified particular sites that were being made available for certain types of housing and as to that matter, the program had indicated only that city-owned land  may be offered  to the public and nonprofit housing agencies for development of affordable housing. (Buena Vista, supra, 175 Cal.App.3d at pp. 300-301.) The element stated: This will continue the program which has committed about 226 acres of City-owned land valued in excess of $ 22.9 million to production of over 1,700 affordable units. (Id. at p. 300.) The Department, in declining to certify that the housing element was in substantial compliance with the law, asserted that the program did not evidence a firm commitment to implementation and that there was no indication of how much land will be made available, its zoning, or dwelling unit capacity. (Ibid.)

The Buena Vista court upheld the Citys housing element in spite of the Departments conclusions about its legal deficiencies. In so doing, the court noted that the City states [that] San Diego is divided into 40 subareas each with its own community plan and City has set forth the capacity of each subarea community plan and the capacity remaining for further residential development. The capacity remaining exceeds Citys housing needs for the five-year time span contemplated by the element. (Buena Vista, supra, 175 Cal.App.3d at pp. 300-301, italics added.) The court further noted in finding substantial compliance with the statute that the City had developed a computer program to monitor development projects throughout the development process and therefore [could] obtain a picture of current patterns and a one-to three-year look into the future.  (Id. at p. 301)

Thus, the bases of the courts finding of substantial compliance with the adequate sites requirement under the former version of the statute were the kinds of statements in the housing element that fell well short of plaintiffs interpretation of the same requirement here. The Buena Vista court was satisfied with a general indication in the housing element that site development capacity exceeded housing needs and that the City had developed a program to monitor the development process over the next three years.

The court in Hernandez likewise rejected a challenge to a housing element under former section 65583, subdivision (c)(1)(A). There, the plaintiffs contended that the City had failed to identify adequate sites for low and moderate-income housing. The court observed that the housing elements discussion, tables, and figures under different categories of sites disclosed ample site identification applicable to the various categories of housing needs. The housing element includes programs in each of the categories listed in [former] section 65583[, subdivision] (c)(1). (Hernandez, supra, 28 Cal.App.4th at p. 1067.) This, the court found, substantially complied with the adequate sites requirement. Notably, the court did not delve into the accuracy of the information given or analyze whether or when the programs in each category would yield the desired site development. The plaintiffs argument about the nonworkability of the housing elements facts and figures is a pure attack on the merits of this aspect of the plan based on an [experts] opinion the court was under no obligation to accept. (Id. at p. 1068.)

TO BE CONTINUED AS PART III..

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[1] More specifically, the City contends that we afford no deference to the Departments negative findings concerning Gilroys 2002 housing element since: (1) the Departments Qs & As are advisory only ( 65585, subd. (a).); (2) a locality may adopt a housing element in spite of the Departments negative findings ( 65585, subd. (f)(2).); and (3) the Legislature impliedly intended to afford no significance to a negative finding by the Department through its provision for a rebuttable presumption afforded to a positive finding with no parallel mention of any presumption to be afforded to a negative finding ( 65589.3.). These contentions focus on the effect of the Departments specific findings that Gilroys 2002 housing element failed to substantially comply with the Housing Element Law and not the general weight to be afforded to the Departments interpretation of the law as expressed in its Qs & As. While plaintiffs make much of this rather subtle distinction, it is one without a difference for our purposes. To the extent the Department found that Gilroys housing element did not substantially comply with the Housing Element Law in the particular respects raised here, those findings are consistent with and rest on the Departments general interpretation of the law as expressed in its Qs & As.

[2] Merriam-Websters Collegiate Dictionary includes both definitions among several general meanings of the word inventory. As the parties point out, the word can mean an itemized list of current assets or the quantity of goods or materials on hand: stock. (Merriam-Websters Collegiate Dict. (10th ed. 2001) p. 615, col. 1.)

[3] We have taken judicial notice of these reports upon plaintiffs motion.

[4] The Legislature does not even have the power to declare later amendments to be clarifying of existing law after the Supreme Court has finally and definitively interpreted a statute. (Carter v. California Dept. of Veterans Affairs (2006)38 Cal.4th 914, 922.)

[5] The court observed that there is a substantial portion of the housing element devoted to the subject of vacant sites and underdeveloped sites, complete with figures, tables and word descriptions. (Hernandez, supra, 28 Cal.App.4th at p. 1062.) It also noted that the inventory included discussion of constraints to development, efforts at recycling of sites to higher density units, and a proposal for mixed-use development in commercial districts that would yield a quantified number of affordable housing units to lower income households. (Id. at pp. 1062-1063.) It seems to us that Gilroys land inventory, as it appears in the Housing Background Report, has many of these same features, likewise presented in a format of tables and general discussion rather than site-specific analysis.

[6] This is because a site-specific land inventory facilitates the assessment whether a localitys housing element complies with the adequate sites requirement of former section 65583, subdivision (c)(1)(A). This conclusion explains the Departments position, as reflected in its June 2001 Qs and As, that even under prior law, section 65583, subdivision (a)(3), required localities to prepare a land inventory and analysis of specific sites so that it could be determined what, if any, additional actions were needed under former section 65583, subdivision (c)(1), in order to provide sufficient adequate sites to accommodate the localitys fair share housing needs at all income levels.

[7] The courts in both Buena Vistaand Hoffmaster suggested, if not concluded, that the requirements of the pre-2005 Housing Element Law could be satisfied by reference to materials or documents not intrinsically a part of the housing element itself. (Buena Vista, supra, 175 Cal.App.3d at p. 301 [While nowhere in the housing element itself is found a provision of specific sites for mobilehomes, rental housing or factory-built housing, it appears these designations may be in the detailed community plans which are referred to in Citys housing element.]; Hoffmaster, supra, 55 Cal.App.4th at p. 1114 [Available sites should be officially designated and publicized, preferably in the housing element, . . . (Italics added.)].) Accordingly, there is precedent for our reliance here on extrinsic materials, such as Gilroys Housing Background Report, to determine substantial compliance. Our further references to Gilroys land inventory therefore encompass the Housing Background Report as well.

[8] Accordingly, the parties do not dispute the factual contents of the land inventory, just whether those contents substantially comply with statutory requirements, as the parties interpret them.

[9] The Neighborhood Districts plan is a new program being incorporated into land use planning in Gilroy. It is a concept providing for mixed use development and a new density designation involving multiple density categories in a single area. This is a move away from the more traditional designations of a single kind of densitylow, medium, or highin a single area that is thought to have resulted in negative planning effects. Gilroys Neighborhood Districts plan is a significant component of its General Plan, which contains action items relating to it, and it is one invoked by the City, along with updating of zoning, as a means to achieve its housing goals and needs once areas are rezoned. These goals and needs include those relating to affordable housing by providing for minimum and targeted mixes of densities that will, it is suggested, lead to more development of lower income housingenough to alone accommodate the Citys fair share housing needs in the lower income categories.

[10] Higher density zoning generally correlates to the lower income categories of housing. (See 65583.2, subd. (c)(3)(B), adopted as part of the 2004 revisions to the Housing Element Law.)

[11] In view of these numbers, we need not resolve the disputed issue whether the R3 zoning density designation can ever accommodate low and lower-income housing units. The City argues that areas zoned R3 can indeed accommodate these income categories, thus reducing the corresponding ABAG fair share need to that extent, while plaintiffs deny this.

[12] The record reveals that in 1998, the City prepared a vacant and underutilized land survey, or database, as part of the General Plan update process. The survey was presented in the form of a spreadsheet and a map of the planning area. This land use database was updated in 2001 and used for the preparation of the 2002 draft housing element. This update process involved revisions to the land use database, which provided necessary parcel-level data for preparation of the draft and the Citys later 2003 comments in response to the Departments compliance review thereof. If site-specific information was then available, it is not clear why this information never made it into the 2002 housing element or the Housing Background Report or why the City did not later revise these documents to include this information.

[13] Section 65583, subdivision (c)(1), now reads: The program shall [i]dentify actions that will be taken to make sites available during the planning period of the general plan with appropriate zoning and development standards and with services and facilities to accommodate that portion of the citys or countys share of the regional housingneed for each income level that could not be accommodated on sites identified in the inventory completed pursuant to paragraph (3) of subdivision (a) without rezoning. Sites shall be identified as needed to facilitate and encourage the development of a variety of types of housing for all income levels, . . . [] (A) Where the inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate sites to accommodate the need for groups of all household income levels pursuant to Section 65584, the program shall identify sites that can be developed for housing within the planning period pursuant to subdivision (h) of Section 65583.2. (Italics added.)

Thus, under current law, this subdivision now requires site identification to accommodate the regional housing need as opposed to housing goals and the program actions must be taken during the planning period as opposed to simply being in accordance with a five-year schedule of actions. By its reference to regional housing needs, the subdivision now also expressly works in tandem with the inventory now required by section 65583, subdivision (a)(3), which under section 65583.2 is now required to be site specific. Section 65583, subdivision (c)s prior reference to meeting housing goals in the identification of sites, and not needs, suggested, perhaps inadvertently, that these two subdivisions were directed at different housing objectives, or at least were not necessarily tied together.

[14] To the extent Hoffmaster supports plaintiffs interpretation of former section 65583, subdivision (c)(1)(A), we disagree with that case, which defers to the Departments Qs & As for its statutory construction. (Hoffmaster, supra, 55 Cal.App.4th at pp. 1110-1114.) Moreover, Hoffmasters statement that for identification to be meaningful, it must necessarily be specific is arguably dictum. (Id. at p. 1114.) The courts holding in fact did not turn on the identification of the sites (the city had provided detailed maps showing their precise location) but on their availability for development. (Id. at pp. 1112-1113.)