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Anti-NIMBY Findings Apply to All Residential Development Projects, Not Just Affordable Housing

In a decision interpreting a long-standing statutory provision, the Fifth District Court of Appeal ruled that Stanislaus County erred when it denied a residential development but did not make findings under Government Code section 65589.5(j).

In Honchariw v. County of Stanislaus, filed November 14, 2011, the court rejected the County’s assertion that the so-called Anti-NIMBY (“not in my backyard”) findings in section 65589.5(j) were required only for denial of an affordable housing project. The court confirmed that the findings requirement applied to denial of any housing development, affordable or not. The court also determined that making denial findings under the Subdivision Map Act did not excuse making findings under section 65589.5(j) as well.

The applicant proposed to subdivide 33.7 acres into eight lots, one of which had an existing residence. The existing residence was served by public water; the other lots would be served by private wells. The applicant also requested an exception to the local subdivision regulations that require lots connect to a public water system when available. The Planning Commission denied both the subdivision and exception applications. On appeal, the Board of Supervisors followed suit, making findings under the local subdivision regulations and the Subdivision Map Act that the project site was not physically suitable for the proposed lot development. Neither the Planning Commission’s nor the Board of Supervisors’ denials were supported by findings under Government Code section 65589.5(j) of the Housing Accountability Act (“Act”), more commonly known as the anti-NIMBY law. The Act requires detailed findings when a housing development project complies with applicable objective general plan and zoning standards but the decisionmaker denies the project or conditions the project to reduce its density.

The County argued that no findings were required under section 65589.5(j) because the rest of the statute addressed affordable housing. Therefore, paragraph (j) only pertained to such housing. Reviewing the plain language of the statute and the legislative history from its first enactment in 1982, the Court agreed that the rest of section 65589.5 focused on affordable housing. By contrast, the language of section 65589.5(j) was clear and unambiguous and not limited to affordable housing projects.  Therefore, the County should have made findings under section 65589.5(j) when it denied the project.  The court also rejected the County’s argument that the project was noncompliant with the public water system connection requirement, stating that the related finding was not supported by evidence in the administrative record.

This case reminds local agencies that all housing in the state is a priority concern, affordable or not. Any contemplated denial of a housing project or condition requiring reduction in density may be subject to findings under the Housing Accountability Act as well as the Subdivision Map Act and implementing local ordinances.  Further, any required findings must be supported by substantial evidence in the record.

Meyers Nave advises public clients on a broad range of zoning matters, including compliance with the Anti-NIMBY law and preparation of adequate findings.  If you have any questions on this e-alert or any other questions regarding zoning, subdivision and housing matters, please contact Amrit Kulkarni at 800.464.3559.