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

This is an appeal from a judgment following the trial courts denial of a petition for writ of mandate under Code of Civil Procedure section 1085. Plaintiffs Norma Fonseca and Terry Wilson sued the City of Gilroy and its City Council[1] to, among other things, set aside the Citys 2002 General Plan on the basis that its housing element does not meet or substantially comply with the requirements of the Housing Element Law codified at Government Code sections 65580 through 65589.8.[2] On appeal, plaintiffs, who are appellants here, reprise their challenge to the Citys 2002 housing element. Specifically, they contend that Gilroys 2002 housing element: (1) violates section 65583, subdivision (a)(3),[3] in that it does not contain an inventory of available residentially zoned land identified by parcel or site, and it also fails to provide the required analysis of these sites; (2) violates former section 65583, subdivision (c)(1)(A), in that it does not identify adequate housing sites that will be made available to meet Gilroys allocated share of the regional housing need at all income levels for the 2001-2006 planning period; and (3) violates former section 65583, subdivision (c)(1)(A)(i), in that it does not alternately provide sufficient housing sites that are zoned to permit multifamily residential use by right in order to otherwise meet the regional housing need.

Plaintiffs further contend that Gilroys 2002 housing element violates the Least Cost Zoning Law, codified at section 65913, et seq., in that it fails to zone sufficient residential sites at appropriate densities to facilitate the development of the regional housing need at each income levelread the lower income levelsduring the current planning period.

While many of plaintiffs arguments concerning the Housing Element Law are logical in terms of the Laws ultimate goalsthe promotion and facilitation of affordable housingthese arguments require us to go beyond the stated terms of the applicable statutory language and, in effect, rewrite it. The Legislature made amendments to the Housing Element Law in 2004 after Gilroys adoption of its 2002 General Plan to read, in essence, as plaintiffs contend we should read the prior law. In other words, plaintiffs arguments largely point not to legal insufficiencies in Gilroys 2002 housing element but instead to inadequacies and inefficacies in the prior statutory language, which, by these gaps, failed to adequately facilitate enforcement of the objectives of the Housing Element Law.

As noted, recent statutory revisions appear to have addressed the particular vagaries at issue here. Since 2005, the Housing Element Law has required the detail and specificity, particularly regarding the land inventory and identification of adequate sites to meet the localitys housing needs, which plaintiffs seek to impose on Gilroy with respect to its 2002 housing element. (See 65583 & 65583.2; Stats. 2004, ch. 724,  1, 3.) Plaintiffs nevertheless contend that these statutory changes merely clarified existing law, and that we should apply prior law as the revisions now read. In light of the Housing Element Law as it existed in 2002 and the actual language of former section 65583, as well as the boundaries of judicial review that limit our analysis to whether Gilroys 2002 housing element substantially complies with that statute, we reject plaintiffs contentions.

We likewise reject their contentions concerning Gilroys lack of compliance with the Least Cost Zoning Law. In sum, this is so because Gilroys 2002 General Plan substantially complied with the Housing Element Law that was in effect at the time the Plan was adopted. And Gilroy was not required to rezone (in order to facilitate increased high density housing) in 2002 upon its adoption of that General Plan, or immediately thereafter, as plaintiffs contend. The Least Cost Zoning Law does not set such a deadline and instead contemplates rezoning by a public entity pursuant to its General Plan within the five-year planning period covered by that Plan. Gilroys Plan sufficiently describes rezoning efforts to be undertaken to accommodate low income housing within this five-year period such that it complies with the Least Cost Zoning Law.

We accordingly affirm the trial courts judgment.

GENERAL LEGAL BACKGROUND

We begin with a general legal overview in order to place the issues in proper context. The Housing Element Law, like the Least Cost Zoning Law, is one component of state laws affecting land use, which is otherwise largely a local function.

I. The Source of Local AuthorityThe Police Power

Under the California Constitution, a county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art. XI, 7.) This authority is often referred to as the police power. (75 Ops.Cal.Atty.Gen. 239, 240 (1992); see, e.g., Candid Enterprises, Inc. v. GrossmontUnionHigh School Dist. (1985) 39 Cal.3d 878, 885.)

The police power is broad. As the California Supreme Court has stated: Under the police power granted by the Constitution, counties and cities have plenary authority to govern, subject only to the limitation that they exercise this power within their territorial limits and subordinate to state law. (Cal. Const., art. XI, 7.) Apart from this limitation, the police power [of a county or city] under this provision ... is as broad as the police power exercisable by the Legislature itself. (Candid Enterprises, Inc. v. Grossmont Union High School Dist., supra, 39 Cal.3d at p. 885.)

It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare. (Berman v. Parker (1954) 348 U.S. 26, 32-33; see generally, Curtin, California Land Use and Planning Law (26th ed. 2006) pp. 1-4; Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969)  4.14, 4.16, pp. 112-113; id. (Cont.Ed.Bar 2005 supp.) 4.14, 4.16, pp. 231- 232.)

II. State Planning Laws and the General Plan

While the police power is the constitutional source of local governments land use authority, the framework for the exercise of that power is provided by the states land use planning statutes. ( 65100-65910; see L.I.F.E. Committee v. City of Lodi (1989) 213 Cal.App.3d 1139, 1148; Curtin, California Land Use and Planning Law, supra, p. 5.)

Among other things, state planning law requires adoption of a general plan. ( 65300.) In the universe of local land use enactments, the general plan is at the top of the hierarchy of local government law regulating land use. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 773 (Devita).) Our states high court has described the function of a general plan as a constitution, and has labeled it the basic land use charter governing the direction of future land use in the locality. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 542; see also, e.g., DeVita, supra, at p. 773.)

Local land use decisions must be consistent with the general plan. Thus, for example, zoning ordinances, which are subordinate to the general plan, are required to be consistent with it. ( 65860, subd. (a); Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at p. 541.) The same is true of other local activities affecting land use, such as tentative maps or development agreements. (Curtin, California Land Use and Planning Law, supra, p. 10.) Under state law, the propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements. (Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800, 806.) Since consistency with the general plan is required, absence of a valid general plan, or valid relevant elements or components thereof, precludes enactment of zoning ordinances and the like. (Ibid.)

The general plan consist of a statement of development policies . . . setting forth objectives, principles, standards, and plan proposals. ( 65302.) The plan must include seven elementsland use, circulation, conservation, housing, noise, safety and open spaceand address each of these elements in whatever level of detail local conditions require (id., 65301). (DeVita, supra, 9 Cal.4th at p. 773.)

III. The Housing Element

Declaring affordable housing a priority of the highest order and one not merely a local concern but a matter of vital statewide importance, the Legislature in 1980 enacted legislation to require each local government to adopt a housing element as a component of its general plan. ( 65580, subd. (a); 65581, subd. (b); 65582, subd. (d).) According to the Housing Element Law, a public localitys general plan must include a housing element consisting of several mandatory components. (Black Property Owners Assn. v. City of Berkeley (1994)22 Cal.App.4th 974, 978 (Black).)

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.[4] ( 65583.)

The housing element must contain a five-year program to implement the policies and achieve the goals and objectives of the housing element through the administration of land use and development controls. ( 65583, subd. (c).) Formerly, the program must also have identified adequate sites with services and facilities that would be made available for the development of a variety of types of housing for all income levels . . . in order to meet the communitys housing goals . . . . (Former 65583, subd. (c)(1)(A).)

The housing element must further include an inventory of sites suitable for residential development and an analysis of the zoning, public facilities, and services available for those sites. ( 65583, subd. (a)(3).) If the inventory of sites does not identify adequate sites to accommodate the need for housing of persons of all income levels,[5] the five-year program must provide for sufficient sites to be zoned for multifamily residential use to accommodate very low and low income households. (Former 65583, subd. (c)(1)(A)(i); see now 65583.2, subd. (h).) If the total housing needs exceed the available resources and the communitys ability to satisfy the need, the quantified objectives need not equal the need but must be the maximum number of housing units that can be constructed, rehabilitated, and conserved for each income category over a five-year period. ( 65583, subd. (b)(2).)

Thus, the five-year 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 in any event identify sufficient sites to be zoned for multifamily housing for low and very low income residents. (Former 65583, subd. (c)(1)(A)(i); see now 65583.2, subd. (h).)

In creating its housing element, the local government is required to consider the advisory guidelines adopted by the states Department of Housing and Community Development (the Department). ( 65585, subd. (a).) The locality is also required to submit draft housing elements or amendments to the Department prior to adoption. ( 65585, subd. (b).) The Department, in turn, must review drafts and make written findings as to whether the draft substantially complies with the requirements of article 10.6. ( 65585, subds. (b), (d).) The local government must then consider the Departments findings. ( 65585, subd. (e).) If the findings reflect noncompliance in the Departments judgment, the locality must either change the draft, so that it substantially complies with article 10.6, or adopt the draft without changes, explaining why the draft substantially complies despite the Departments findings. ( 65585, subd. (f)(1), (2).) Under section 65589.3, the housing element (or its amendment) enjoys a rebuttable presumption of validity if the Department makes a finding that it substantially complies with the requirements of article 10.6. ( 65589.3.) The statute does not provide for the converse, i.e., there is no presumption of invalidity on the basis of the Departments finding of noncompliance.

After each local government adopts its General Plan, it must review its housing element periodically to evaluate the communitys progress toward attainment of local and state housing goals and objectives, among other factors. (Black, supra, 22 Cal.App.4th at p. 978.) By legislative edict, the housing element shall be reviewed as frequently as necessary to evaluate certain enumerated factors subject to the statutory schedule for revisions. (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 296, overruled on another ground in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743.) As provided in section 65588, subdivision (b): The housing element shall be revised as appropriate, but not less than every five years, to reflect the results of this periodic review. But the statute contains an overriding provision, subdivision (e), which governs specified localities. It states: Notwithstanding subdivision (b) or the date of adoption of the housing elements previously in existence, each city, county, and city and county shall revise its housing element according to the following schedule: [] . . . [] (2) Local governments within the regional jurisdiction of the Association of Bay Area Governments: December 31, 2001, for the third revision, and June 30, 2007, for the fourth revision.[6] ( 65588, subd. (e).) These timetables for revision of the housing element have been held to be directory, not mandatory. (San Mateo County Coastal Landowners Assn. v. County of San Mateo (1995)38 Cal.App.4th 523, 544 [the timetable set by  65588 is directory rather than mandatory and mere noncompliance with the schedule does not operate to automatically invalidate a housing element or, by extension, a general plan].)

IV. InitialReview of a Housing Element

A local governments Housing Element, or any portion thereof, may be challenged by any interested party by a traditional mandamus action filed in the superior court under Code of Civil Procedure section 1085. ( 65587, subd. (b).) The courts review shall extend to whether the housing element or portion thereof or revision thereto substantially complies with the requirements of [The Housing Element Law]. (Ibid.)    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.  [Citations.]  (Buena Vista Gardens Apartments Assn. v. City of San Diego Planning Dept. (1985) 175 Cal.App.3d 289, 298 (Buena Vista); Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 348.) Simply stated, [j]udicial review of a housing element for substantial compliance with the statutory requirements does not involve an examination of the merits of the element or of the wisdom of the municipalitys determination of policy. (Black, supra, 22 Cal.App.4th at p. 980.) It merely involves a determination whether the housing element includes the statutory requirements. (Buena Vista, supra, at pp. 298, 306 [court looks only to ensure that the requirements of section 65583 are met, not whether the programs adopted are adequate to meet their objectives or are the programs the court thinks ought to be there].) Under section 65587 and Code of Civil Procedure section 1085, then, the courts role in determining a mandamus challenge to a localitys 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 localitys discretion in making substantive determinations and conclusions about local housing issues, needs, and concerns.

V. TheLeast Cost Zoning Law

Echoing the purposes of the Housing Element Law to promote the development of affordable housing, in 1980, the Legislature also enacted the Least Cost Zoning Law, sections 65913, et seq. These changes in the law were intended to be consistent with the responsibility of local government to adopt the program required by section 65583, subdivision (c). ( 65913, subd. (a).) The changes were also expressly designed to: [e]xpedite the local and state residential development process; (2) [a]ssure that local governments zone sufficient land at densities high enough for production of affordable housing; and (3) [a]ssure that local governments make a diligent effort through the administration of land use and development controls and the provision of regulatory concessions and incentives to significantly reduce housing development costs and thereby facilitate the development of affordable housing . . . . (Ibid.)

Section 65913.1 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 identified in the housing element of the general plan. (Ibid.)

Thus, section 65913.1 governs land use designation and zoning while section 65583 governs the housing element of a general plan. The two statutes were intended to work in concert.[7] ( 65913, subd. (a).)

STATEMENT OF THE CASE

I. Factual Background

As noted, under section 65588, each local government within the regional jurisdiction of ABAG, of which Gilroy is one, was to prepare and adopt a revised and updated housing element by December 31, 2001, to cover the period January 1, 2002, to June 30, 2007. Gilroys allocated regional fair share of affordable housing to be accommodated during the period from 1999 through June 2007 included 1,240 new lower-income housing units906 units affordable to very low-income households and 334 units affordable to low income households.[8]^,[9]

In accordance with the Departments mandatory review of its proposed housing element under section 65585, Gilroy submitted a draft housing element accompanied by a Housing Background Report to the Department in December 2001. According to the City, the Housing Background Report is a part of the housing element. The Department reviewed the documents and found the draft housing element to be out of compliance with state law. The Department notified the City of its findings by letter dated March 1, 2002, and accompanying Appendix of specific comments.

Gilroy adopted the draft housing element without change on June 13, 2002,[10] and again submitted it to the Department for review.[11] The Department then completed its formal review of the adopted housing element under section 65585. In October 2003, the Department issued its written determination that the adopted element did not substantially comply with the Housing Element Law, for the same reasons that the Department had considered the previously submitted draft to be noncompliant.

In May 2003, before the Department issued this determination, and prior to the Citys formal adoption of its housing element, the City had submitted to the Department comments and proposed revisions to its draft housing element, which were intended to be responsive to the Departments initial March 2002 review. These materials included proposed revisions to the land inventory and a table of vacant and underutilized land with parcel-level data for sites within the general plan area but outside the city limits and the urban service area. The City also submitted supplemental materials at some later point. And third parties, including The Public Interest Law Firm, California Rural Legal Assistance, Inc.,[12] and the California Affordable Housing Law Project, submitted comments to the Department as well.

After its review of the proposed amendments, the supplemental materials, and third-party comments, in December 2003, the Department notified the City by letter that while some of the Citys responses had addressed some of the Departments concerns as outlined in its March 2002 review, further revisions to the housing element were necessary in order to render it compliant with state law from the Departments perspective. The Department specifically concluded, in reliance on its Questions and Answers[13] as guidelines, that the element should identify adequate sites and demonstrate the realistic development capacity and potential of sites for all income groups, further analyze and mitigate governmental constraints, and strengthen certain programs. The Departments letter was accompanied by an Appendix that addressed these issues in further detail and identified, from the Departments point of view, what changes in the housing element were needed to bring it into legal compliance. Included among these identified shortcomings were those of which plaintiffs complained belowthe failure to include a site-specific inventory of land demonstrating adequate sites to accommodate Gilroys affordable-housing need and the failure to provide analysis and removal of governmental constraints to the construction of affordable housing on those sites.

II. Procedural Background

Plaintiffs, each of whom is alleged to be a current or former resident of Gilroy who cannot obtain affordable housing in that locale, filed their verified petition for writ of mandate under Code of Civil Procedure section 1085 in May 2004.[14] They filed an amended petition a few months later.[15] The amended petition contained eight causes of action, only the first two of which pertain to this appeal. The first cause of action was entitled writ of mandate to compel the preparation and adoption of a legally sufficient housing element. (Caps. omitted.) It challenged Gilroys 2002 housing element in numerous respects, only three of which are again raised hereinadequate land inventory and analysis of sites in violation of section 65583, subdivision (a)(3); failure to identify adequate sites for very-low and low-income housing development in violation of former section 65583, subdivision (c)(1)(A); and failure to include any program to allow very-low and low-income housing development by right in violation of former section 65583, subdivision (c)(1)(A)(i).

The second cause of action was entitled writ of mandate to compel compliance with the Least Cost Zoning Law, and it challenged Gilroys alleged lack of compliance with sections 65913 and 65913.1 by the failure to designate and zone sufficient land at sufficient densities and with appropriate standards to accommodate the housing needs of very-low and low-income households. Below and here, plaintiffs essential challenge on the basis of the Least Cost Zoning Law concerns whether Gilroys rezoning plans, expressed as part of its housing element revisions, satisfy the law in terms of both the affirmative obligation to rezone and the time within which that obligation must be met. Plaintiffs contend that under the Least Cost Zoning Law, a public entity must diligently rezone upon the adoption of a new housing element so that the actual construction of affordable housing as contemplated by the zoning changes can be accomplished within the planning period.

Plaintiffs sought their writ of mandate on the first two causes of action through a noticed motion procedure in the court below. The City answered the petition and filed opposition to the requested relief. Before the court on the motion were, among other things, Gilroys 2002 General Plan, its adopted housing element (one component of the General Plan); the accompanying Housing Background Report; portions of Gilroys Zoning Ordinance; the then-current version of the Departments Qs & As, which contain its interpretations of statutory requirements; and written revisions, comments, and communications between Gilroy and the Department concerning the Departments recommendations and the Citys efforts to satisfy the Department that the element substantially complied with the Housing Element Law.[16]

The trial court heard argument and then issued a written ruling denying the Petition/Motion. The courts stated rationale in support of its ruling was that: Gilroys Housing Element substantially complies with the requirements set out in the Government Code. [(Hernandez v. City of Encinitas (1994)] 28 Cal.App.4th 1048, 1058 [(Hernandez).)] Gilroy is not in violation of the Least Cost Zoning law. Gilroy is implementing its plan for Neighborhood Districts during the planning period. The parties later entered into a stipulation whereby the City would waive costs, the plaintiffs would dismiss their remaining causes of action without prejudice, and a final judgment would be entered in favor of the City on the first two causes of action. The dismissal and judgment were later entered as contemplated by the stipulation. Plaintiffs then appealed from the order denying their motion for writ of mandate . . . and from the final judgment . . . .[17]

DISCUSSION

I.                    Issues on Appeal

The primary issue on appeal is whether Gilroys 2002 housing element substantially complies with the version of the state Housing Element Law in effect in 2002. More specifically, the questions presented are whether Gilroys 2002 housing element:

(1) contains 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 in substantial compliance with section 65583, subdivision (a)(3);

(2) contains a program setting forth a five-year schedule of actions that Gilroy is undertaking or intends to undertake to [i]dentify 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 communitys [identified] housing goals . . . in substantial compliance with former section 65583, subdivision (c)(1)(A); and

(3) if failing to provide an inventory of sites under section 65583, subdivision (a)(3) that identifies sufficient sites to accommodate the housing need for groups of all income levels, does the housing element nevertheless provide for sufficient sites with zoning that permits . . . 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 households in substantial compliance with former section 65583, subdivision (c)(1)(A)(i).

The secondary issue on appeal concerns the question of Gilroys compliance with the Least Cost Zoning Lawi.e., has the City designate[d] and zone[d] sufficient vacant land . . . to meet housing needs for all income categories as identified in the housing element in compliance with section 65913.1.

II.                 Standard of Review

A. Challenge to the Citys Housing Element[18]

We have already addressed the standards applicable to the trial courts mandamus review of a challenge to the legal adequacy of a housing element under Code of Civil Procedure section 1085 and section 65587, subdivision (b). On appeal, we independently ascertain as a question of law whether the housing element at issue substantially complies with the requirements of the Housing Element Law, substantial compliance meaning  actual compliance in respect to the substance essential to every reasonable objective of the statute, as distinguished from mere technical imperfections of form. [Citations.] (Buena Vista, supra, 175 Cal.App.3d at p. 298; Camp v. Board of Supervisors, supra, 123 Cal.App.3d at p. 348; Black, supra, 22 Cal.App.4th at p. 980.) In our independent review of the housing elements legal adequacy, we afford no deference to the trial courts conclusions. (Garat v. City of Riverside, supra, 2 Cal.App.4th at p. 292; Buena Vista, supra, at p. 298.)

TO BE CONTINUED AS PART II..

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Analysis and review provided by Chula Vista Property line attorney.

[1] For ease we refer to defendants and respondents collectively as the City or Gilroy.

[2] All further unspecified statutory references are to the Government Code. Further references to the Housing Element Law are specifically to these sections that together comprise Article 10.6 of Chapter 3 of Division 1 of Title 7 of that Code.

[3] The parties do not dispute that the relevant version of section 65583 for purposes of this appeal is that effective in 2002 when Gilroys General Plan was adopted. ( 65583, subd. (d).) Further references to former section 65583 are to the version of the statute then in effect. (See Stats. 2001, ch. 671,  2) The section was amended and affected in important respects in 2004, effective January 2005, as we discuss post. (Stats. 2004, ch. 724, 1-3.)

[4] In 2002 at the time when Gilroy adopted its current General Plan, section 65583s specific requirements were set forth in subdivisions (a) through (e), the pertinent subdivisions of which we will discuss relative to the particular issues addressed below.

[5] See footnote 8, post.

[6] Section 65584.02, subdivision (a)(2)(C) 2d par., adopted in 2004, provides for a maximum two-year extension of the housing element deadline for the purpose of coordination with the scheduled update of a regional transportation plan pursuant to federal law. The Department has granted such an extension to the Association of Bay Area Governments (ABAG) so that the deadline under section 65588, subdivision (e), for the fourth housing element revisions in jurisdictions within this designation, which includes the City of Gilroy, is extended to June 30, 2009.

[7] Thus, our analysis below of plaintiffs challenge under the Least Cost Zoning Law is also in relation to the version of the Housing Element Law that was in effect in 2002 when Gilroy adopted the housing element at issue.

[8] Under section 65584 of the Housing Element Law, the Department shall determine the existing and projected need for housing for each region . . . . ( 65584, subd. (a)(1).) This is known as the Regional Housing Needs Allocation. For purposes of the contents of the housing element as provided under section 65583, the share of a city or county of the regional housing need shall include that share of the housing need of persons at all income levels within the area significantly affected by the general plan of the city or county. (Ibid.) Household income levels refer to four different levels of affordability: (1) very low incomes as defined by Health and Safety Code section 50105; (2) lower incomes as defined by Health and Safety Code section 50079.5; (3) moderate incomes as defined by Health and Safety Code section 50093; and (4) above moderate incomes as defined by Health and Safety Code section 50093. ( 65584, subd. (e)(1)-(4).)

[9] In its 2002 housing element, Gilroy included ABAGs determination of its regional fair share housing allocation for this period. But it also reflected that by 2002, 779 of the 906 units remained to be built for very-low income households and 103 of the 334 units remained for low-income households, reducing the total ABAG number of units to be provided in these two income categories to 882 in the 2002 housing element.

[10] It is not clear whether in adopting the element, the City explained under section 65585, subdivision (f), why, in its view, it had substantially complied with the Housing Element Law notwithstanding the Departments negative finding.

[11] The specific contents of relevant portions of the housing element are discussed below where they relate to our analysis.

[12] These two entities represent plaintiffs in this litigation.

[13] The Departments Questions and Answers (Qs & As) are the guidelines it adopted under Health and Safety Code section 50459 and distributed to localities to assist in their preparation of housing elements and to facilitate the Departments review of those housing elements under section 65585.

[14] The parties raise no issue about the timeliness of the action under section 65009, subdivision (d), which provides for a one-year statute of limitations for actions brought, as this one at least in part is, under section 65587.

[15] The petition was again amended in October 2004 only to add a required verification, mooting the Citys challenge by demurrer to the previous pleading for this deficiency. But for our purposes, the second amended petition is in all substantive and relevant respects the same as the first amended petition and we refer here to both as the amended petition.

[16] It is not clear from the record whether the revisions that were forwarded to the Department were ever formally incorporated into Gilroys 2002 adopted housing element.

[17] The City filed in this court a motion to dismiss the appeal for lack of appealability. The motion generally asserted that the plaintiffs voluntary dismissal of their third through eighth causes of action without prejudice to facilitate the entry of a final judgment on the first two causes of action violated the one final judgment rule since the dismissed causes of action remained subject to revival. (See e.g., Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 308-309; Morehart v. County of Santa Barbara, supra, 7 Cal.4th at pp. 743-744; Don Joses Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 116-119; Tudor Ranches, Inc. v. State Compensation Ins. Fund (1998) 65 Cal.App.4th 1422, 1427-1430.)

We considered the motion and directed plaintiffs to stipulate either that the prior dismissal of the remaining causes of action was to be deemed with prejudice or that they unequivocally waived any right to a trial or hearing on these causes of action, otherwise the appeal would be dismissed. Plaintiffs having elected by written stipulation to unequivocally waive a trial or hearing on the dismissed causes of action, our appellate jurisdiction is preserved and we accordingly denied the motion to dismiss by separate order.

[18] We address the proper standard of review on a challenge under the Least Cost Zoning Law at part III.B. post.