By Geoff Robinson

When is a “housing development project” not a “housing development?”  When attorney’s fees are at stake, according to the court in Honchariw v. County of Stanislaus, No. F065494 (5th Dist., Aug. 8, 2013) (Honchariw II).

The developer in Honchariw filed a vesting tentative map application seeking to subdivide a parcel into large residential lots.  After the Board of Supervisors disapproved the application, the developer sued, contending that the Board had failed to make the findings mandated by the Housing Accountability Act, Government Code section 65589.5.  Under that statute, a city or county may not deny a “housing development project” that complies with its general plan and zoning ordinance without written findings, supported by substantial evidence, demonstrating that denial is necessary to prevent a “specific, adverse impact upon the public health or safety” caused by the project.

Because section 65589.5 is part of a broader statute concerned with low- and moderate-income housing, it had been widely assumed that this section required findings only for an affordable housing project.  However, in Honchariw I (as reported in our Nov. 18, 2011 Update), the court held that neither the statute nor its legislative history supported this reading, and accordingly set aside the county’s decision to deny an the developer’s application for approval of a market-rate residential development project.

The developer then moved for an award of attorney fees under subsection 65589.5(k), which states that the court “shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner who proposed the housing development. . . .”

This time, however, the developer struck out.  The appellate court held that its interpretation of the term “housing development project” in Honchariw I was not controlling because the attorney’s fees provision in section 65589.5(k) used slightly different language (“housing development” rather than “housing development project”). This difference, the court found, was important because the phrase “housing development project” is expressly defined in another part of the statute, whereas the term “housing development” is not.

The court concluded that the absence of a definition of the term “housing development” rendered the attorney’s fees provision ambiguous. Turning to the legislative history, the court cited a senate analysis stating that the attorney’s fees provision strengthened current law “by requiring a court to award attorney’s fees to an affordable housing developer that has had a project unfairly denied by a local agency.” Based on this and other legislative history, the court interpreted section 65589.5(k) to authorize attorney fees only when city or county violates the statute when considering a proposed housing development containing affordable housing.

The court also found textual support in the statute for this interpretation.  Section 65589.5(k) refers to the housing development that is the subject of an “order or judgment.” The court found that the “order or judgment” referred to was one issued where a local agency had rejected an affordable housing project or emergency shelter without making the required findings or without substantial evidence to support its findings.