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 II..

Thus, Hernandez too interpreted former section 65583, subdivision (c)(1)(A), in a far more lenient manner than that urged by plaintiffs here. Indeed, plaintiffs construction of the former statute would impose on the City stringent requirements that appeared nowhere in the text, or in any other part of the Housing Element Law in place when the 2002 housing element was adopted.

We discern from Gilroys housing element that its quantified objectives were to meet the unmet regional housing need.[1] In terms of this objective, we see that the element, as shown through the Housing Background Reportand as expressed in terms of quantified, potentially developable units in the various zoning density categories[2]facially reflects that the City had the ability to accommodate the ABAG unmet total regional housing need by reference to vacant acres that had already been residentially zoned. (See Table 7-1) In isolating the unmet very-low and low-income regional housing needthe subject of plaintiffs challenge herethe City expressed its ability to accommodate this strata by resort to lands to be rezoned.[3] (Ibid.)

As the City points out, the Report goes on to articulate various programs and action items that are a part of or consistent with the General Plan and that are intended to result in the projected rezoning and the development of sufficient multifamily, high-density, affordable housing units, including implementation of the Neighborhood Districts plan, so as to satisfy the unmet regional housing need for low and very-low income families.

Based on this information and these programs and action items, we conclude that the City substantially complied with the requirements of former section 65583, subdivision (c)(1)(A), to provide adequate sites. While the City could have offered more specificity, and while the element does not express that its programs and action items will yield the desired results soon enough in the planning period to permit full development within that period, these were not required for substantial compliance with the statute. We view plaintiffs many attacks on the housing element and its programs (some specifically raised only in the reply brief) as amounting to argument about the nonworkability of the housing elements facts and figures and a pure attack on the merits of the plan. (Hernandez, supra, 28 Cal.App.4th at p. 1068.)

3. Former Section 65583, subdivision (c)(1)(A)(i)

Former section 65583, subdivision (c)(1)(A)(i), went on to provide that [w]here 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 provide for sufficient sites with zoning that permits owner-occupied and rental multifamily residential use by right, including density and development standards that could accommodate and facilitate the feasibility of housing for very low and low-income housing.[4] Thus, a locality need not have satisfied the requirements of this subdivision unless it had failed to provide a land inventory under subdivision (a)(3) that provided for adequate sites to meet the housing need for all income levels.

Following their contentions that the land inventory referred to in Gilroys 2002 housing element failed to meet the requirements of section 65583, subdivision (a)(3), and that the element further failed to identify adequate sites under former section 65583, subdivision (c)(1)(A), plaintiffs further contend that Gilroy was consequently required to provide multifamily by right sites under former section 65583, subdivision (c)(1)(A)(i), and that it failed to do so.[5] The City contends that it did comply with any obligation to provide by right sites.

Having concluded that Gilroys 2002 housing element substantially complied with section 65583, subdivision (a)(3), of the Housing Element Law then in effect, we need not, and therefore do not, decide whether Gilroy also complied with former section 65583, subdivision (c)(1)(A)(i).

B. Gilroy Did Not Violate the Least Cost Zoning Law

As noted, section 65913.1 is part of the Least Cost Zoning Law. It states in relevant part that [i]n exercising its authority to zone for land uses and in revising its housing element . . . , a city, county, or city and county shall designate and zone sufficient vacant land for residential use with appropriate standards, in relation to zoning for nonresidential use, and in relation to growth projections of the general plan to meet housing needs for all income categories as defined in the housing element of the general plan.[6] ( 65913.1, subd. (a), italics added.) The purpose of the Least Cost Zoning Law is to encourage local governments to approve needed and sound housing developments that will alleviate the severe shortage of affordable housing for low and moderate income families. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1260.)

The parties dispute the standard of review that we apply on appeal from the trial courts denial of plaintiffs Least Cost Zoning Law challenge. Plaintiffs contend that the issue of Gilroys compliance with the Least Cost Zoning Law is a question of law subject to our de novo review because there are no substantial evidentiary disputes. But we agree with the City that the challenge here is primarily to Gilroys rezoning efforts pursuant to its policies and programs set forth in the General Plan, of which the housing element is a part, and the Citys zoning ordinance. These matters constitute legislative enactments. ( 65301.5, 65850.) As such, they are presumed to be valid and a city need not make explicit findings to support its action. [Citations.] A court cannot inquire into the wisdom of a legislative act or review the merits of a local governments policy decisions. [Citation.] Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agencys action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair. [Citations.] (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195.) Whether an action finds evidentiary support in the record is measured by the substantial evidence test. (Taylor Bus Service, Inc. v. San Diego Board of Education (1987) 195 Cal.App.3d 1331, 1340.)

Plaintiffs contend that the Least Cost Zoning Law required the City to take action to actually rezone a sufficient supply of adequate sites to meet the Citys lower income share of need and that this action was required to have been completed within a reasonably prompt time after the December 2001 deadline for revising [the Citys] housing element. The City responds that the Least Cost Zoning Law does not require immediate rezoning upon revision of the housing element, that such a requirement would conflict with the five-year planning periods contemplated by the Housing Element Law, and that the elements plan for meeting its share of the regional housing need through rezoning and implementation of the Neighborhood Districts plan is all that was required to comply with section 65913.1. Echoing their challenge under the Housing Element Law, plaintiffs reply that implementation of the Neighborhood Districts plan cannot constitute compliance with the Least Cost Zoning Law because it is only a plan to  [c]onvene a Task Force,  not a program to zone sites for higher density housing.

We conclude that the City has the better argument. First, there is no express requirement in section 65913.1 that a locality immediately rezone upon adoption of a revised housing element. Second, even as revised, the Housing Element Law, which works in tandem with the Least Cost Zoning Law, does not require immediate action and permits a locality to act within the planning period to meet regional housing needs. ( 65583, subd. (c); 65913, subd. (a)(3).) Third, as we have already concluded, under the Housing Element Law then in effect, Gilroys housing element designated sufficient rezoned land, through its programs and actions to update zoning and implement the Neighborhood Districts plan, to increase affordable housing and to satisfy the regional housing need for the low and lower-income categories. Plaintiffs have not shown these legislative actions to have been arbitrary, capricious, or entirely without evidentiary support.

Fourth, there is substantial evidence in the record of the positive effect that implementation of the General Plan through rezoning and the Neighborhood Districts program will have on the supply of higher density, lower income housing and that it will satisfy the regional housing need in all income categories. There is also evidence of Gilroys efforts to implement its Neighborhood Districts plan after adoption of the 2002 housing element, which dispels plaintiffs suggestion that the plan is only one to create a task force and nothing more. Further, it is clear that while the Neighborhood Districts plan, which was relied on by the trial court in finding Gilroy compliant with the Least Cost Zoning Law, is not purely an action to rezone, its rezoning aspects are designed to yield an increased supply of affordable housing units, and if implemented, will do so according to the Citys planning expert, David Driskell. And nothing about the Least Cost Zoning Law requires that compliance with it be in the form of action that is purely related to rezoning and nothing else.

In sum, substantial evidence supports that in revising its 2002 housing element and General Plan, legislative acts which we have found substantially complied with the then-existing version of the Housing Element Law, the City was in compliance with the Least Cost Zoning Law. Plaintiffs have failed to carry their burden of showing otherwise.[7]

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Premo, Acting, P.J.

Elia, J.

Fonseca et al. v. City of Gilroy

No. H028369

Trial Court: Santa Clara County Superior Court

No. CV-019165

Trial Judge: Hon. William J. Elfving

Attorney for Plaintiffs

and Appellants James F. Zahradka II

Kyra Kazantzis

Public Interest Law Firm

Law Foundation of Silicon Valley

Phyllis S. Katz

CA Rural Legal Assistance, Inc. - Gilroy, CA

Richard A. Marcantonio

Public Advocates Inc.

Attorneys for Defendants

and Respondents Andrew L. Faber

Linda A. Callon

Thomas P. Murphy

Berliner Cohen

Fonseca et al. v. City of Gilroy, et al.

No. H028369

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

[1] Gilroys quantified objectives dont expressly state this. But they do imply it because the unmet regional housing needs are what are quantified against the total number of units possible. The housing goals are stated in only general narrative terms and not in terms of quantified numbers. These goals include to incorporate [e]ffective programs that respond to residents housing needs . . . . The policies are also stated in narrative and not quantified terms and they include the policy to establish relationships, continue participation in Countywide housing assistance programs, and collaborate with other public agencies and non-profit housing sponsors in the use of available programs to provide lower-cost housing in Gilroy. As to the legal obligation of a locality to meet its stated housing needs and quantified objectives, we note [that] identified housing needs, like quantified objectives, are simply goals, not mandated acts. [Citation.] (Hoffmaster, supra, 55 Cal.App.4th at p. 1109, fn. 7.)

[2] These include those vacant acres already zoned and those to be rezoned through Action 1.A of the Draft General Plan and implementation of the Neighborhood Districts land use designation (based on the minimum percent mix identified in the Draft General Plan). (See Housing Background Report, Table 7-1, p. 28.)

[3] Here we assume in plaintiffs favor that such need could only be accommodated by acreage to be zoned R4.

[4] The requirements of this former subdivision have been restated and subsumed in current subdivision (c)(1)(A) and section 65583.2, subdivisions (h) and (i).

[5] Use by right meant that the use [did] not require a conditional use permit, except when the proposed project [was] a mixed-use project involving both commercial or industrial uses and residential uses. (Former 65583, subd. (c)(1)(A)(ii)(B); see now 65583.2, subd. (i).)

[6] Appropriate standards means densities and requirements with respect to minimum floor areas, building setbacks, rear and side yards, parking, the percentage of a lot that may be occupied by a structure, amenities, and other requirements imposed on residential lots pursuant to the zoning authority which contribute significantly to the economic feasibility of producing housing at the lowest possible cost given economic and environmental factors, the public health and safety, and the need to facilitate the development of housing affordable to persons and families of low or moderate income, as defined in Section 50093 of the Health and Safety Code, and to persons and families of lower income, as defined in Section 50079.5 of the Health and Safety Code. ( 65913.1, subd. (a)(1).)

[7] We decline to consider the document offered in this court by plaintiffs relative to Gilroys Ordinance Number 2003-5, which was included in one of their motions for judicial notice. The document was not before the trial court and we will accordingly disregard it.