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RICHARDS, WATSON & GERSHON
ATTORNEY'S AT LAW
A PROPZS@K)N,AL C0#WK>pkA ,0N,
May 2, 1995
California City Attorney
RECEMID —
MAY 3 1995
City of MaorpaO
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1912788
OUR F4& NUAA8m
99904 -00191
wPvr ms owEcr ot^L wuumm
(213) 2 53 -0207
Re: Harris v County of Madera, Fifth District Court
of Appeal, Case Non F020495 -- Request for Amicus
Support
Fellow City Attorney:
With the support of the Legal Advocacy Committee of the
League of California Cities, I write to urge you to lend your
City's name to a letter brief I am preparing on behalf of
interested cities in support of the County of Madera in this
housing element case. The appeal is to be arcfued June 13 1gg5
so please fax or mail the enclosed form as soon as possible
Affordable housing advocates represented by the Housing
Element Enforcement Project of the Legal Aid Society of Alameda
County sued Madera County to compel it to update the housing
element of its general plan. The County contended that it had no
duty to update its housing element because the Legislature had
suspended the mandate by failing to budget the sum necessary to
reimburse local government for the cost of complying with this
mandated state program. The trial court rejected this argument,
thus concluding that, despite Article XIII B, S 6 of the
California Constitution, the Legislature can impose a new program
on local governments without reimbursing the costs of
implementing that program.
This case raises important questions regarding housing
element law, the power afforded to the Department of Housing and
Community Development (HCD) , the existence of any duty to update
housing elements despite the mandate suspension, and the broader
issue of the Legislature's power to impose new programs on local
government without adequately funding the implementation of those
programs.
,cam
00050
RICHARDS, WATSON & GERSHON
California City Attorney
May 2, 1995
Page 2
The County of Santa Cruz has filed an amicus beef -on
behalf of 9 counties- and the County Supervisors Association o
California. I will prepare a very short letter brief f
the Santa Cruz brief o_n behalf of all the California- c i ` -a
towns which authori=ze me to do so. The Santa C joining in
the following ruz brief -A d
g points:
• Cities and counties have no present duty
their housing.. elements because the Legislature-7b-4-s- to revss.
expressly - -declined to fund compliance with that mandate
and Government Code S 17581(x) "suspends an
which the Legislature declines to fund. M y mandate
• Any waiver of reimbursement by the County as a
condition for receiving state monies for indigent
health care did not reinstate the suspended housing
element mandate.
• The trial court's ruling that the Count s I�
effectively re- instated the mandate violated B, S 6. Article
• A blanket waiver of all rights under Article XIII B,
S 6 would violate public policy.
• The trial court erred in ruling that the City's updated
housing element would not be deemed'sufficient unless
certified by the State Department of Housing and
Community Development despite the provisions of the
Housing Element Statute which provide that HCD's role
is purely advisory..
Further information regarding the significance of the
case appears in a paper I
housing element law at the Octoberrmeeting of the City Attorne y 's
Department. If you have other questions, please feel free to
call me at the number above.
course I urge you to lend your cityls name to this case. Of
it , will incur no expense in doing so.
MGC:mgc
19127M
cc: JoAnne Speers, Esq.
very truly yours,
;Mi ael G.
o antuono
'ty Attorney
ity of Cudahy
00051
Ms. Lillian Hare
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
RICHARD RICHARDS
(1918 -1988)
THIRTY - EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES. CALIFORNIA 90071 -1469
(213) 626 -8484
FACSIMILE (213) 626 -0078
OF COUNSEL
WILLIAM K. KRAMER
1912815
OUR FILE NUMBER
99904 -01003
WRITER'S DIRECT DIAL NUMBER
(213) 253 -0207
Re: Harris v. County of Madera, 5th Appellate District
Case No. F020495
Dear Ms. Hare:
I have received your May 19, 1995 fax in which you
request information regarding the position taken in this case by
California Rural Legal Assistance and the Housing Element
Enforcement Project of the Legal Aid Society of Alameda County.
Enclosed are the Respondents' Brief of these agencies in this
case and the amicus brief in support of Madera County filed by
Santa Cruz County on behalf of itself and 9 other counties. It
is the Santa Cruz brief that Cities are asked to join.
If I can provide any other information or assistance,
please do not hesitate to call.
Very truly yours,
Michael G. Cola tyti6nno -- - --
MGC:mgc
1912815
Enclosures (2)
RICHARDS, WATSON & GERSHON
ATTORNEYS AT LAW
A PROFESSIONAL. C '11APORA TION
GLENN R. WATSON
AMANDA F. SUSSKIND
ROBERT G. BEVERLY
ROBERT C. CECCON
HARRY L. GERSHON
SAYRE WEAVER
DOUGLAS W. ARGUE
STEVEN H. KAUFMANN
MARK L. LAMKEN
GARY E. GANG
ARNOLD SIMON
JOHN J. HARRIS
ERWIN E. ADLER
KEVIN G. ENNIS
DAROLD D. PIEPER
ROBIN D. HARRIS
ALLEN E.RENNETr
MICHAEL ESTRADA
May 2 3, 1995
STEVEN L DORSEY
LAURENCE S. WIENER
"
WILLIAM L!.STRAUSZ
STEVEN R. ORR
ROBERT M. GOLDFRIED
DEBORAH R. HAKMAN
ANTHONY B. DREWRY
SCOTT K. SHINTANI
MITCHELL E. ABBOTT
MICHAEL G. COLANTUONO
TIMOTHY L. NEUFELD
TERRY P. KAUFMANN MACIAS
ROBERT F. METER
B. KIM
GREGORY W. BTEPANIGICH
W.
SIN D.
ROBIN D. WEINER
._ RECEIVED
RECEIVED
ROCHELLE BROWNE
SASKIA T. ABA URA
DONALD STERN
KAYSER O. SUME
MICHAEL J S. RUDENKINB
WILLIAM
DAVID L. COHEN
CRAIG A. STEELE
T. PETER STEELE
MAY 2 1995
QUINN M. BARROW
ALISON E. MAKER
BENJAMIN SARNOUW
CAROL W. LYNCH
TERENCE R. BOLA
COLEMAN JR_
DOUGLAS A. CAREEN
JEFFREY A. ROBIN
A. ABIN
DANIEL L. PINES
City of Moorpark
GREGORY
GREGORY M. KUNERT
USA M. BOND
THOMAS M. JIMBO
WINNIE TSIEN
MICHELE BEAL SAGNERIS
Ms. Lillian Hare
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
RICHARD RICHARDS
(1918 -1988)
THIRTY - EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES. CALIFORNIA 90071 -1469
(213) 626 -8484
FACSIMILE (213) 626 -0078
OF COUNSEL
WILLIAM K. KRAMER
1912815
OUR FILE NUMBER
99904 -01003
WRITER'S DIRECT DIAL NUMBER
(213) 253 -0207
Re: Harris v. County of Madera, 5th Appellate District
Case No. F020495
Dear Ms. Hare:
I have received your May 19, 1995 fax in which you
request information regarding the position taken in this case by
California Rural Legal Assistance and the Housing Element
Enforcement Project of the Legal Aid Society of Alameda County.
Enclosed are the Respondents' Brief of these agencies in this
case and the amicus brief in support of Madera County filed by
Santa Cruz County on behalf of itself and 9 other counties. It
is the Santa Cruz brief that Cities are asked to join.
If I can provide any other information or assistance,
please do not hesitate to call.
Very truly yours,
Michael G. Cola tyti6nno -- - --
MGC:mgc
1912815
Enclosures (2)
C
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TANYA HARRIS, et al.,
V.
Plaintiffs,
i COUNTY OF MADERA,
C
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Defendant.
5 Civil No. F020495
(Madera County Superior
Court, No. 49063)
AMICUS BRIEF OF SANTA CRUZ COUNTY AND NEVADA
COUNTY AND THE COUNTIES OF ALAMEDA, KERN, LAKE,
PLACER, PLUMAS, SAN DIEGO, THE CITY AND COUNTY
OF SAN FRANCISCO, AND THE COUNTY SUPERVISORS
ASSOCIATION OF CALIFORNIA IN SUPPORT
OF DEFENDANT/APPELLANT COUNTY OF MADERA
Appeal from the Superior Court
of Madera County
Honorable Mark Thomas, Judge Assigned
DWIGHT L. HERR, State Bar No. 39157
County Counsel, County of Santa Cruz
701 Ocean Street, Room 505
Santa Cruz, CA 95060 -4068
Telephone: (408) 454 -2040
JAMES A. CURTIS, State Bar No. 70538
County Counsel, County of Nevada
Post Office Box 6100
Nevada City, CA 95959 -6100
Telephone: (916) 265 -1319
ATTORNEYS FOR AMICI CURIAE
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TANYA HARRIS, et al.,
Plaintiffs,
v.
COUNTY OF MADERA,
Defendant.
5 Civil No. F020495
(Madera County Superior
Court No. 49063)
AMICUS BRIEF OF SANTA CRUZ COUNTY AND NEVADA
COUNTY AND THE COUNTIES OF ALAMEDA, KERN, LAKE,
PLACER, PLUMAS, SAN DIEGO, THE CITY AND COUNTY
OF SAN FRANCISCO, AND THE COUNTY SUPERVISORS
ASSOCIATION OF CALIFORNIA IN SUPPORT
OF DEFENDANT /APPELLANT COUNTY OF MADERA
Appeal from the Superior Court
of Madera County
Honorable Mark Thomas, Judge Assigned
DWIGHT L. HERR, State Bar No. 39157
County Counsel, County of Santa Cruz
701 Ocean Street, Room 505
Santa Cruz, CA 95060 -4068
Telephone: (408) 454 -2040
JAMES A. CURTIS, State Bar No. 70538
County Counsel, County of Nevada
Post Office Box 6100
Nevada City, CA 95959 -6100
Telephone: (916) 265 -1319
ATTORNEYS FOR AMICI CURIAE
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TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTRODUCTION AND SUMMARY OF ARGUMENT
ARGUMENT
I. THE 0A=111W WkDERA NAZ
E THE RESP
TRIAL COURT O EIR ACTION IN THE
THE REQUIREMENT FOR CITIES
AND CO RIODICALLY REVISE THEIR
HOUSING ELEMENTS AND TO COMPLY WITH DETAILED
HOUSING ELEMENT SPECIFICATIONS
SUBJECT OVISIONS
PR
R_lp
B.
C.
3'I3E
Respondents Concede That Some of the Detailed
Specifications for Housing Elements Were
Suspended as Unfunded Mandates; However, the
Trial Court Did Not Recognize the Suspension
of Any of the Housing Element Mandates.
Although the Requirement to Adopt a Housing
Element Predated the January 1, 1975 Operative
Date of Article XIIIB, Section 6 of the
California Constitution, t to
Periodically �MTIw�+Wt�li�t in
Government Code Section 65588 and the Detailed
Specifications for Housing Elements in
Ikea 65503 Were Not
Mandated Until Adopted by Chapter 1143 of the
1980 Statutes.
D. The Amendment of Government Code Section 65588
and the Enactment of Government Code Section
65588.1 by Chapter 695 of the 1993 Statutes
Did Not Reinstate the Unfunded and Suspended
Mandates to Periodically Revise Housing Elements
and to Comply with the Detailed Specifications
PAGES
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TABLE OF CONTENTS (Continued)
for Housing Elements in Government Code
Section 65583.
II. ANY WAIVER OF REIMBURSEMENT BY THE COUNTY OF
MADERA FOR STATE MANDATES TO
REtrIVING COUNTY MEDICAL S PROGRAM
OWNS" DID NOT RESULT IN A REINSTATEMENT
OF THE SUSPENDED HOUSING ELEMENT REQUIREMENTS
OF CHAPTER 1143 OF THE 1980 STATUTES OR OF
ANY OF THE OTHER UNFUNDED, SUSPENDED MANDATES.
III. THE BROAD INTERPRETATION BY THE TRIAL COURT
THAT THE COUNTY WAIVER OF REIMBURSEMENT
REQUIRED TO RECEIVE STATE FUNDING FOR THE
COUNTY MEDICAL SERVICES PROGRAM HAD THE
EFFECT OF REINSTATING ALL UNFUNDED,
SUSPENDED MANDATES, INCLUDING THE HOUSING
ELEMENTS MANDATES OF CHAPTER 1143 OF THE
1980 STATUTES, WOULD VIOLATE THE PROVISIONS;.,,
OF SECTION 6 OF ARTICLE XIIIB OF THE
CALIFORNIA CONSTITUTION.
IV. A BLANKET WAIVER OF THE SUSPENDED STATUS
OF UNFUNDED STATE MANDATES SUBJECT TO
ARTICLE XIIIB, SECTION 6 (INCLUDING THE
HOUSING ELEMENT REQUIREMENTS OF CHAPTER
1143 OF THE 1980 STATUTES) WOULD VIOLATE
PUBLIC POLICY.
V. THE TRIAL COURT ERRONEOUSLY DEFERRED TO
THE OPINION OF THE DEPARTMENT OF HOUSING
AND COMMUNITY DEVELOPMENT AS TO THE
ADEQUACY OF THE HOUSING ELEMENT OF THE
COUNTY OF MADERA.
VI. CONCLUSION
—1.d-
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TABLE OF AUTHORITIES
CASES
PAGES
Bownds v. City of Glendale
(1980) 113 Cal-App-3d 875, 885 -886.
. . . . . . . .
. . . 7
Buena Vista Gardens Apartments Association
v. City of San Diego Planning Department
(1985) 175 Cal.App.3d 289, 386
. . . . . . . . . .
. . 25
City of Merced v State of California
(1984) 153 Cal.App.3d 777
. . . . . . . . . . .
. . . . .17
County of Fresno v.--State of California
(1991) 53 Cal-App-3d 482, 487 .
. . . . . . . . . .
. . . . 21
County of Los Angeles v Sasaki
(1994) 23 Cal.App.4th 1442, 1452
. . . . . . . . . .
. . . . .23
County of Los Angeles v State of California
( 1987 ) 43 Cal-3d 46, 61 . .
. . . . . . . . . .
. . . . . 21
Covino v. Governing Board
(1977) 76 Cal.App.3d 314, 322
. . . . . . . . . . .
. . . . 24
Hernandez v. City of Encinitas
(1994) 28 Cal.App.4th 1048, 1056 -1057
. . . . . . .
. . . . 26
Kinlaw v. State of California
( 1991) 54 Cal.3d 326, 328 . .
. . . . . . . .
. . . . 22
Long Beach Unified School District
v. State of California
(1990) 225 Cal.App.3d 155, 174 -175
. . . . . . . .
. . . . 21
Morehart v. County of Santa Barbara
( 1994 ) 7 Cal-4th 725
. . . . . . . .
. . . . 16
_Strong v. County of Santa Cruz
(1975) 15 Cal.3d 720, 727
. . . . . . . . . . .
. . . . 24
CONSTITUTION
Article XIIIA . . . . . . . . . . . . . . . . . . . . . 21, 22
Article XIIIB . . . . . . . . . . . . . . . . . . 21, 22
Article XIIIB, Section 6. 1, 2, 3, 4, 6, 7, 10, 12, 17, 18, 20,
21, 22, 23, 24, 25
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TABLE OF AUTHORITIES
2I
STATUTES
3
PAGES
Statutes of 1967, Chapter 1657
5
Statutes of 1980, Chapter 1143 •
• • 5
10, 12, 13, 14,15,16,17,
18,196
20,
23
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Statutes of 1987, Chapter 1334
7
Statutes of 1991, Chapter 949
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Statutes of 1992, Chapter 719
°
3,
18,
19
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Statutes of 1993, Chapter 55
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15
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Statutes of 1993, Chapter 59
.
11
Statutes of 1993, Chapter 695
•
11, 12,
15,
17
12
CALIFORNIA CODES
13
Civil Code, Section 3513
15
Government Code, Article 10.6 1, 2, 4,
5, 6, 7, 8, 9, 11,
16,
17
Government Code, Sections 17500, et sec.
Government Code, Section 17561
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Government Code, Section 1.7581
1, 9, 10,
11,
18
Government Code, Section 17581(a) .
Government Code, Section 65302
21
Government Code, Section 65583
2, 5, 6, 7,
11,
26
Government Code, Section 6558!0
Government Code, Section 65585(a)
.
Government Code, Section 65588
24
6,
7,
11
Government Code, Section 65588(bi
25
.
12
Government Code, Section 65588(e.
Government Code, Section 65588.1
27
11,
15,
17
Government Code, Section 65588.1(b)
28
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MISCELLANEOUS
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Assembly Floor Report dated September 10, 1993 . . . . . . .
Legislative Analysis "Fiscal Effect" Statement
on Proposition 172 in the California Voters Pamphlet . . .
Legislative reports of the Assembly Committee
on Local Government dated April 14, 1993 and
April 21, 1993 .
Report of the Assembly Committee on Ways and Means
dated May 26, 1993 .
TABLE OF AUTHORITIES
CALIFORNIA
CODES
(CONTINUED)
PAGES
Government
Code,
Section 65588.1(c) . . . . . . .
. . . . . . 12
Government
Code,
Sections 77000, et seq. . . . .
. . . . . . 22
Health and
Safety
Code, Section 50459 . . . . . .
. . . . 6, 8, 9
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INTRODUCTION AND SUMMARY OF ARGUMENT
This case presents an issue of importance to counties and
other local government entities as to whether they can be legally
compelled to carry out a State mandate during a fiscal year even if
the State Legislature has eliminated all funding for reimbursement
of the mandate and suspended the mandate under Government Code
Section 17581. Santa Cruz County and Nevada County received
approval to file an amicus brief, in which the counties of Alameda,
Kern, Lake, Placer, Plumas, and San Diego, the City and County of
San Francisco, and the County Supervisors Association of California
( "CSAC ") have joined.
The provisions of Section 6 of Article XIIIB of the California
Constitution adopted by the voters of the State of California on
November 6, 1979, and the implementing statutory provisions
contained in Sections 17500, et sea, of the California Government
Code require that the State ;.reimburse local government for new
State mandates or mandates of higher levels of service enacted on
or after January 1, 1975. The statutory provisions of Government
Code Section 17581 provide that a particular mandate is in fact
suspended during a fiscal year when the Legislature does not
appropriate funds for the mandate and the Legislature identifies
such an unfunded mandate for suspension.
The trial court below determined that, even though the
Legislature in the 1992 -93 Budget Act had specifically suspended
the housing element [regional housing needs] requirements added by
Article 10. 6 of the Government Code ( commencing with Section 65580 )
as an unfunded mandate, the COUNTY OF MADERA was still required to
implement those provisions on the basis of the following:
an
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1 1. Because the mandate to adopt a revised housing element
2 pursuant to the requirements of Article 10.6 came into existence
3 prior to the adoption of the 1992 -93 Budget Act which suspended the
4 mandate, the COUNTY OF MADERA was required to implement those
5 provisions during the 1992 -93 fiscal. year and thereafter; and
6 2. The mandate to revise the Housing Element of the COUNTY OF
7 MADERA remained in effect as to MADERA COUNTY since it had waived
8 claims for reimbursement of all State mandates as a condition of
9 receiving funds for the County Medical Services Program pursuant to
10 Chapter 949 of the 1991 Statutes.
11 This amicus brief addresses the following points in regard to
12 these holdings of the trial court:
13 1. The requirement for cities and counties to revise their
14 housing elements at five -year intervals and to comply with the
15 detailed housing element specifications of Government Code Section
16 65583 was first mandated by the adoption of Article 10.6 of the
17 Government Code by Chapter 114:3 of the 1980 Statutes. Accordingly,
18 these statutory mandates are subject to the provisions of Article
19 XIIIB, Section 6 and its implementing legislation which provide for
20 the suspension of unfunded state mandates. Since Chapter 1143 of
21 the 1980 Statutes was one of the statutes specifically unfunded and
22 suspended by the 1992 -93 State Budget Act, MADERA COUNTY had no
23 obligation to revise its existing Housing Element pursuant to
24 Government Code Section 65583 at the time Respondents filed their
25 action on January 5, 1993: and this statute has continued to be
26 unfunded and suspended during subsequent fiscal years, including
27 the current 1994 -95 fiscal year.
28 2. A mandate imposed on or after January 1, 1975W, is
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1 suspended "during any fiscal. year " whenever the State does not
2 provide funding for the mandate and the Legislature expressly
3 identifies it as being unfunded and suspended, regardless of
4 whether the mandate first applied to a county during a prior fiscal
5 year. The act of "suspending" a mandate assumes the pre- existence
6 of an otherwise enforceable mandate. There is no indication of any
7 legislative intent to suspend unfunded statutory mandates only in
8 selected counties depending on when the mandate first applied to a
9 particular county.
10 3. A waiver of reimbursement for expenditures on State
11 mandates is not an agreement vo reinstate the suspended status of
12 unfunded mandates. There is nothing in either the statutory
13 provisions of the Government Code, or in the terms of the waiver
14 itself, or in the provisions of Chapter 719 of the 1992 Statutes
15 (requiring waivers of claims for reimbursement as a condition of
16 receiving the County Medical Services Program funds) to indicate
17 that the participating countries were in any way agreeing to
18 reinstate the various State mandates which had been specifically
19 suspended by the Legislature. There is also no intent expressed in
20 the State Budget Acts or in the State mandate statutory provisions
21 indicating that suspended State statutes should be in effect in
22 certain counties depending on whether they participated in a
23 particular program, but not a.n effect in other counties in the
24 State which did not participate in those programs.
25 4. The broad interpretation by the trial court that the
26 waiver of reimbursement required for participation in the County
27 Medical Services Program had the effect of reinstating all unfunded
28 mandates would violate the provisions of Section 6 of Article XIIIB
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of the California Constitution. Any such interpretation of
statutory provisions which would result in the statute being
unconstitutional is to be avoided. A reinstatement of unfunded
State mandates based on a general waiver of all claims for
reimbursement for any and all State mandates as a condition to
receiving funds for a limited program such as the County Medical
Services Program would, if allowed, be a complete eradication of
the constitutional protections from unfunded State mandates granted
by Article XIIIB, Section 6. A wa;va- r - --- -* I.„ ..cr__-__
any law, particularly a constitutional provision enacted by the
people such as Section 6 of Article XIIIB, which has a broad public
Purpose and is not intended solely for the benefit of the party
making a waiver.
ARGUMENT
I
THE COUNTY OF MADERA WAS NOT UNDER ANY LEGAL MANDATE TO
REVISE ITS HOUSING ELEMENT AT THE TIME THE RESPONDENTS
FILED THEIR ACTION IN THE TRIAL COURT SINCE CHAPTER 1143
OF THE 1980 STATUTES IMPOSING THE REQUIREMENT FOR CITIES
AND COUNTIES TO PERIODICALLY REVISE THEIR HOUSING
ELEMENTS AND TO COMPLY WITH DETAILED HOUSING ELEMENT
SPECIFICATIONS CREATED REIMBURSABLE MANDATES SUBJECT TO
THE PROVISIONS OF ARTICLE XIIIB, SECTION 6, AND THE
LEGISLATURE SPECIFICALLY IDENTIFIED THIS STATUTE AS AN
UNFUNDED MANDATE WHICH WAS SUSPENDED FOR THE 1992 -93
FISCAL YEAR.
A. Respondents Concede That Some of the Detailed Soec f atio s
for Housing Elements Were Suspended as Unfunded Mandates,
However, the Trial Court Did Not Recognize the Suspension of
Any of the Housing Element Mandates
Petitioners filed a Petition for Writ of Mandate in the trial
court on January 5, 1993 seeking judicial relief based on the
alleged legal duty of the COUNTY OF MADERA to revise its Housing
Element in conformance with Article 10.6 of Title 7, Division 1,
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II
Chapter 3 of the Government Code (commencing with Section 65580).
Article 10.6, as adopted by Chapter 1143 of the 1980 Statutes,
required cities and counties to revise their housing elements at
five -year intervals and mandated detailed specifications for the
contents of housing elements in Government Code Section 65583.
Respondents' Brief concedes that Chapter 1143 was determined by the
Board of Control (predecessor agency to the Commission on State
Mandates) on August 29, 1981 to contain requirements for a higher
level of service by cities and counties which were reimbursable
mandates under Section 17561 of the Government Code. (Mandated
Costs Manual for Counties, Chapter 1143/80, page 1).1
Additionally, Respondents do not dispute that the 1992 -93 Budget
Act specifically identified Article 10.6 as an unfunded statute
whose mandates were suspended for the 1992 -93 fiscal year.
However, Respondents assert that since only some of the housing
element specifications of Government Code Section 65583 were
subsequently found to be reimbursable by the Commission on State
Mandates, Madera County was still subject to the other requirements
in Article 10.6 to revise its Housing Element. Even if this
position of Respondents were accepted for the sake of argument, the
trial court decision should still be vacated, because the trial
court did not recognize that aM of the specifications of Article
10.6 for housing elements had been suspended.Z
'Respondents' Brief, page 12, lines 3 -9.
2Since Madera County received certification of its Housing
Element by the State Department of Housing and Community
Development ( "HCD ") after entry of the trial court judgment and the
adequacy of that revised Housing Element was not disputed by
Respondents, it would be appropriate to dismiss this case as moot
rather than remanding to the trial court for further proceedings
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B. Although the Rea uirement to Adopt a Housing Element Predated
the January 1--,--1975 One ative Date of Article XIIIB Section
6 of the California Constitution the Regui ement to
Periodi ally Revise Ho 1 nt in Gover ent Code Section
65588 and the Detailed Specifications for Housing Elements in
Government Code Section 65583 Were Not Mandated Until Adopted
by Chapter 1143 of the 1980 Statutes.
The requirement for cities and counties to adopt housing
elements predated the January 1, 1975, operative date of Article
XIIIB, Section 6 of the California Constitution. However, that
requirement was only a general one. Government Code Section 65302,
in effect as of January 1, 1975, (as amended by the 1967 Statutes,
Chapter 1657) simply stated that a general plan was required to
include:
"(c) A housing element consisting of
standards and plans for the improvement of
housing and for provision of adequate sites
for housing. This element of the plan shall
endeavor to make adequate provision for the
housing needs for all economic segments of the
community.,,
It was not until the adoption of Article 10.6 by Chapter 1143
of the 1980 Statutes that the housing element specifications of
Government Code Section 65583 were mandated. The trial court
utilized these specifications in judging the adequacy of the
Housing Element of the COUNTY OF MADERA. ResnondAntc AA--* *u-
Position of the State Department of Housing and Community
Development ( "HCD "), and contend that most of the specifications in
Section 65583 were previously contained in HCD's guidelines for
adoption of housing elements; that these guidelines were binding on
cities and counties pursuant to former Health and Safety Code
Section 50459 (formerly Government Code Section 65302, as amended
consistent with the suspended status of Article 10.6.
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in 1971) and therefore that most of the detailed specifications of
(Section 65583 for housing elements predated the January 1, 1975
operative date of Article XIIIB, Section 6.
Respondents assert that this interpretation of HCD should be
given great weight as art agency responsible for developing and
implementing California's housing policy "unless it is clearly
erroneous or unauthorized ". However, as indicated above, the
issue in this case is the proper interpretation of Article XIIIB,
Section 6 of the Constitution and of the provisions of Government
Code Sections 17500, et seq. regarding the suspension of unfunded
mandates and the effect of the State Budget Acts. The Department
of Housing and Community Development's interpretation of these
State mandate provisions and of the Budget Acts is not entitled to
judicial deference since HCD is not the agency with the
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responsibility for interpreting or administering those provisions.
Moreover, the position c-f HCD is clearly erroneous for the
following reasons:
(1) There were no State requirements to revise city and
county housing elements at five -year intervals or at any other
interval prior to the adoption of Article 10.6 in 1980. The
mandatory provisions in Government Code Section 65588 for the
revision of housing elements were new in their entirety.
(2) The guidelines of HCD for the adoption of housing
elements have always been advisory and not mandatory. The
relationship of Article 10.6 to the prior HCD guidelines was
specifically addressed in Bownds v. City of Glendale (1980)
10. 3Respondents' Brief, page 1.3, line 17 through page 14, line
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113 Cal-App-3d 875, 885-886, as follows:
"Health and Safety Code section 50459, which
provides for the authority of the Department
to promulgate guidelines concerning the
housing element in local planning, does not,
however, specifically declare such guidelines
to be advisory only. The statute does,
however, authorize that department to review
local housing elements for conformity with
Government Code section 65302 and report its
findings. The clear implication is that the
Department has no authority on its own to
compel compliance according to its own notion
of what constitutes compliance. The term
'guidelines' itself suggests an absence of
compulsion. (Emphasis in. original).
"Guidelines promulgated by the Department are
not self - executing and do not have the binding
effect of law.
"Our conclusion is borne out by the fact that
since the commencement of this action, the
Legislature has enacted Assem. Bill No. 2853,
which amends Government Code section 65302 and
adds article 10.6 to chapter 3 of division 1
of title 7 of the Government Code.
The effect of this legislation is to codify
many of the provisions of the Department's
former guidelines, and to require compliance
by October 1, 1981. The new enactment
specifically provides that any guidelines or
findings adopted by the Department are
advisory only, and that judicial review of a
local plan be limited to a determination of
whether there is 'reasonable compliance' with
the statutes.
This indicates to us a recognition by the
Legislature that the Department's guidelines
have always been advisory only, that any such
drastic impairment of the legislative
prerogative of local government should be
undertaken only by specific legislative action
and judicial review for compliance be limited
in scope."
Government Code Section 65585, as adopted by Chapter 1143 of
the 1980 Statutes, expressly stated that the guidelines of HCD
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adopted pursuant to Health and Safety Code Section 50459 were
advisory, and the Legislature in subsequent amendments of Section
65585 has retained that advisory status of the guidelines.
C. A City or County Has No Enforceable Duty to Revise Its Housing
Element or to Comply with the Detailed Specifications for
Housing Elements During Anv Fiscal Year in Which Those
Mandates Have Been Suspended for Lack of Funding Regardless of
Whether the Mandates Were in Force During the Prior Fiscal
Year.
Respondents make the novel argument that since the mandate of
Article 10.6 to revise city and county housing elements predated
the 1992 -93 Budget Act, this mandate continues in effect
notwithstanding the suspension of that statute in the 1992 -93
budget. This is also the position of the State Department of
Housing and Community Development. Such a position is inconsistent
with the plain wording of the 1992 -93 Budget Act and of Government
Code Section 17581.
The 1992 -93 Budget Act listed the mandates of Chapter 1143 of
the 1980 Statutes (regional housing needs) as among those mandates
subject to the following provision:
"Pursuant to Section 17581 of the Government
Code, mandates listed in the appropriation
schedule of this item with an appropriation of
$0 and included in the language of this
provision are specifically identified by the
Legislature for suspension during the 1992 -93
fiscal year.i4
Government Code Section 17581(a) provides, in relevant part:
"No local agency shall be required to
implement or give effect to any statute or
executive order, or portion thereof, during
any fiscal year if all of the following apply:
4Provision 4. of Item 8885 - 101 -001 of the 1992 -93 Budget Act
adopted as Chapter 587 of the 1992 Statutes. (See Exhibit 1, page
4, attached to this brief.)
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(1) The statute or executive order, or
Portion thereof, has been determined by the
Legislature, the commission, or any court to
mandate a new program or higher level of
service requiring reimbursement of local
agencies pursuant to Section 6 of Article
XIIIB of the California Constitution.
(2) The statute or executive order, or
portion thereof, has been specifically
identified by the Legislature in the Budget
Act for the fiscal year as being one for which
reimbursement is not provided for that fiscal
year. For purposes of this paragraph, a
mandate shall be considered to have been
specifically identified by the Legislature
only if it has been included within the
schedule of reimbursable mandates shown in the
Budget Act and it is specifically identified
in the language of a provision of the item
providing the appropriation for mandate
reimbursements."
As discussed herein, both of the criteria set forth in
Government Code Section 17581 for the suspension of a mandate have
been met in this case. The housing element requirements of Chapter
1143 of the 1980 Statutes have been determined to be mandates
subject to Article XIIIB, Section 6, and the State Legislature has
identified Chapter 1143 of the 1980 Statutes in each of the State
Budget Acts adopted beginning in 1992 -93 as one of the unfunded
State mandates suspended during the respective fiscal years.5
By definition, all of the mandates which were suspended
predate the adoption of the Budget Act for that year. "Suspension"
assumes the pre- existence of ar otherwise enforceable mandate. For
example, one of the other State mandates which was specifically
suspended was the requirement of Chapter 1334 of the 1987 Statutes
5See Exhibit 1 attached to this brief. [1992 -93 State Budget,
Chapter 587 of the 1992 Statutes (pages 443 -446); 1993 -94 Budget
Act, Chapter 55 of the 1993 Statutes (pages 403 -406); and the 1994-
95 Budget Act, Chapter 139 of the 1994 Statutes (pages 1047 - 1051).]
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for every law enforcement agency to provide each of its peace
officers with a CPR pocket mask. Obviously this requirement was in
effect prior to the 1992 -93 Budget Act. Under the Respondents'
interpretation, any local law enforcement
agency which had not
provided CPR masks to all its peace officers employed as of June
30, 1992, would continue to be subject to the mandate during the
1992 -93 fiscal year even though no funds would be available to
reimburse the agency for this mandated cost. However, any such
interpretation is inconsistent with the provisions of Government
,Code Section 17581 that no local agency is required to "implement
or give effect to any statute ,.�.during any fiscal year where the
mandate has been suspended in the budget act for that fiscal year."
D. The Amendment of Government Code Section 65588 and the
Enactment of Government Code Section 65588 1 by Chapter 695 of
the 1993 Statutes Did Not Reinstate the Unfunded and Suspended
Mandates to Per odicallv Revise Housing Elements and to Com 1
with the Detailed Specifications for Housing Elements in
Government Code Section 65583.
Respondents contend that the provisions of Section 65588 as
amended by Chapter 695 of the 1993 Statutes indicate that the
mandate for completing the first and second revisions to city and
county housing elements was riot affected by the suspension of
Article 10.6 in the 1992 -93 Budget Act and subsequent Budget Acts.
Chapter 695 of the 1993 Statutes extended the dates for the third
and fourth revisions of city and county housing elements. Section
65588.1 does not address the first: and second revisions of housing
elements.
Respondents rely on subsection (b) of Section 65588.1 added to
the Government Code by Chapter 695 which states that "the extension
provided in this section shall not limit the existing
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responsibility under subsection (b) of Section 65588 of any
jurisdiction to adopt a housing element in conformance with this
article ". (Emphasis added) However, this case does not involve
the duty of a city or county to adopt a housing element, which duty
pre- existed the adoption of Article XIIIB, Section 6; instead it
involves the subsequent legislative mandate for five -year revisions
of an already adopted housing element. Moreover, subsection (c) of
Section 65588.1 expressly states the following:
"It is the intent of the Legislature that
nothing in this section shall be construed to
reinstate any mandates pursuant to Chapter
1143 of the Statutes of 1980 suspended by the
Budget Act of 1993 - -94,"
The only interpretation of the 1992 -93 Budget Act and the
subsequent Budget Acts with regard to the suspension of Chapter
1143 which is consistent with Article XIIIB, Section 6 is that,
commencing July 1, 1992 through the 1994 -95 fiscal year, cities and
counties are not subject to she mandate to revise their housing
elements every five years or to comply with the detailed statutory
specifications for housing elements.
The legislative history of Chapter 695 of the 1993 Statutes
(AB 2172) is instructive. AB 2172, as originally introduced in the
Legislature, would have extended for one year the time for local
governments in several regions to revise their housing elements in
the event that insufficient funds were appropriated for
reimbursement of such costs during the 1993 -94 fiscal year.' The
legislative reports of the Assembly Committee on Local Government
dated April 14, 1993 and Apri. 21, 1993 state the following:
'Exhibit 2, pages 1 -2, attached to this brief.
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Existing Law
"Under the Budget Act of 1992, it identifies
numerous mandate items for suspension during
the 1992 -93 fiscal year, including numerous
provisions relating to general plan housing
elements contained in AB 2853 (Roos) Chapter
1143, Statutes of 1980."
Fiscal Effect
"No known local fiscal effect if sufficient
funds are included in the 1993 -94 budget for
all jurisdictions (e.g. cities, counties, and
councils of governments)."
Comments
"While this bill provides that these
provisions cannot be construed to extend the
deadline for other jurisdictions or exempt
other jurisdictions from any requirement of
law, it should be recognized that the
suspended mandate in the Budget Act of 1992
su.Dended a number of housing element
requirements." (Emphasis added)
Outstanding Issues
"This bill should be clarified to ensure that
sufficient funds are contained in the budget
for local governments to comply with the
State - mandated requirements of Chapter 1143,
not only the SCAG and ABAG State - mandated
costs. For example, Chapter 1143 required
every city and county to revise its housing
element at least every five years.
(Therefore, references to costs associated
with 'regional housing needs' as identified in
the budget should be stricken.) Local
government compliance with the Chapter 1143
mandate, even with extended deadlines, should
also be contingent on no further suspended
mandates of Chapter 1143.
Then, the report of the Assembly Committee on Ways and Means
dated May 26, 1993 stated the effect of AB 2172 if adopted as
amended April 28, 1993:
"Summary
7Exhibit 3, pages 1 -3, attached to this brief.
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Existing Law
"Under the Budget Act of 1992, it identifies
numerous mandate items for suspension during
the 1992 -93 fiscal year, including numerous
provisions relating to general plan housing
elements contained in AB 2853 (Roos) Chapter
1143, Statutes of 1980."
Fiscal Effect
"No known local fiscal effect if sufficient
funds are included in the 1993 -94 budget for
all jurisdictions (e.g. cities, counties, and
councils of governments)."
Comments
"While this bill provides that these
provisions cannot be construed to extend the
deadline for other jurisdictions or exempt
other jurisdictions from any requirement of
law, it should be recognized that the
suspended mandate in the Budget Act of 1992
su.Dended a number of housing element
requirements." (Emphasis added)
Outstanding Issues
"This bill should be clarified to ensure that
sufficient funds are contained in the budget
for local governments to comply with the
State - mandated requirements of Chapter 1143,
not only the SCAG and ABAG State - mandated
costs. For example, Chapter 1143 required
every city and county to revise its housing
element at least every five years.
(Therefore, references to costs associated
with 'regional housing needs' as identified in
the budget should be stricken.) Local
government compliance with the Chapter 1143
mandate, even with extended deadlines, should
also be contingent on no further suspended
mandates of Chapter 1143.
Then, the report of the Assembly Committee on Ways and Means
dated May 26, 1993 stated the effect of AB 2172 if adopted as
amended April 28, 1993:
"Summary
7Exhibit 3, pages 1 -3, attached to this brief.
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This bill:
• Restores the regional housing needs
mandate (Chapter 1143, Statutes of 1980)
which was made optional in the 1992 -93
Budget Act; and
• Revises the schedule for preparing
housing elements in certain local
jurisdictions
Fiscal
State costs of about $600,000 to fund
restoration of the regional housing needs
mandate.
Comments:
Pursuant to the regional housing needs
mandate, the State reimburses local entities
for the development of information that is
used in the preparation and update of general
plan housing elements.... 118
The April 28, 1993, version of AB 2172 would have amended the
1992 State Budget Act to delete Chapter 1143 of the 1980 Statutes
as a suspended unfunded mandate for the 1992 -93 fiscal year.9
(This change in the suspended status of Chapter 1143 of the 1980
Statutes was eliminated from AB 2172 in all its subsequent
amendments. ) 10
The Assembly Floor Report dated September 10, 1993 stated the
following with regard to the various amendments of AB 2172:
"As passed by the Assembly, this bill extended
the housing element deadlines one year. The
Senate amendments:
(1) Extend the housing element deadlines two
years rather than one year...
OExhibit 3, page 4, attached to this brief.
9Exhibit 2, pages 6 -18, attached to this brief.
loExhibit 2, pages 19 -39, attached to this brief.
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(2) Require local governments to continue
implementing existing housing programs and the
annual housing review.
(3) Prohibit the extension from limiting the
existing responsibility to adopt a housing
element.
(4) Prohibit numbers 2 and 3 above from being
construed to reinstate any mandates pursuant
to Chapter 1143 of the Statutes of 1980
suspended by the 1993- -94 Budget Act...
Comments:
(1) The Legislature suspended 44 mandates for
1992 -93 including AB 2853 (Roos), Chapter
1143, Statutes of 1980, relating to numerous
general plan housing element requirements,
including the requirement to revise the
housing element at five -year intervals. SB 80
(Alquist), Chapter 55, Statutes of 1993,
similarly suspended 44 mandates, including the
AB 2853 requirements.
In an attempt to avoid confusion (until the
September 8 amendments), this bill extends the
housing element deadlines two years.
(2) When a mandate is suspended in the Budget
Act, a chapter is shown so that one could
identify the particular requirements that are
suspended. Repealing a suspended mandate,
therefore, repeals those provisions contained
in a particular chapter.
The September 8 amendments to this bill
attempt to extend some responsibilities
contained in AB 2853, and also prohibit this
provision from being "construed to reinstate
any mandates pursuant to Chapter 1143...•.
Therefore, although these provisions add
confusion their effects are to conti ue
suspension of the AB 2853 mandate.""
(Emphasis added)
Accordingly, the addition, of subsection (e) to Section 65588
and the addition of Section 65588.1 by AB 2172 (Chapter 695 of the
1993 Statutes) did indeed add confusion to the status of the
11Exhibit 3, pages 13 -14, attached to this brief.
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housing element requirements of Article 10.6 of the Government
Code, but it is apparent as indicated by the Assembly Floor Report
that their effect is to 1. continue suspension of the AB 2853
mandate" including suspension of the requirement to revise housing
elements at five -year intervals. 12
In Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
the California Supreme Court addressed an issue as to whether the
Legislature's identification in State Budget Acts of the real
property subdivision merger statute as a suspended mandate thereby
nullified any preemptive effect of certain provisions of the
statute on local merger ordinances. The Court held that only the
mandatory provisions deleted by Chapter 59 of the 1993 Statutes had
been suspended by the State Budget Acts; however, the other
provisions of the merger statute remained in effect which
prescribed the conditions under which a local agency could seek to
merge parcels. The real property subdivision merger statute is,
however, distinguishable from the housing element requirements
adopted by Chapter 1143 of the 1980 Statutes for the following
reasons:
1. The Legislature, by adopting Chapter 59 of the 1993
Statutes, identified and eliminated the unfunded State mandatory
12 Even if the provisions of Chapter 695 were interpreted to
have reinstated the requirements for local agencies to adopt
revisions to their housing elements, that action would not in any
way assist the Respondents since Chapter 695 adopted October 4,
1993 did not go into effect until January 1, 1994. Accordingly, it
was not in effect when the Respondents filed their action and was
not in effect until after MADERA COUNTY received certification from
the State Department of Housing and Community Development of the
adequacy of its revised Housing Element which determination the
Respondents accepted. Thus, any alleged application of Section
65588(e) to MADERA COUNTY is moot.
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provisions regarding parcei mergers and left the remaining
provisions in effect; whereas, Government Code Section 65588.1
adopted by Chapter 695 of the 1.993 Statutes expressly stated the
Legislature's intent not to reinstate any housing element mandates
of Chapter 1143 of the 1980 Statutes suspended by its prior
budgetary actions.
2. State statutory provisions, such as the merger statute,
can preempt local legislative action without imposing a
reimbursable State mandate. In other words, the State Legislature
can, without imposing a reimbursable State mandate, prescribe the
conditions by which parcels can be merged if a local agency seeks
to merge parcels. See City of Merced v State of California (1984)
153 Cal.App.3d 777 (Statute prescribing compensation payable for
business goodwill if local agency opts to use eminent domain does
not constitute a mandate under Article XIIIB, Section 6). In
contrast, the position of the Respondents is necessarily that
cities and counties have a mandatory duty rather than an option to
adopt revisions to their housing elements. The statutory provision
requiring cities and counties to revise their housing elements
every five years and to comply with the detailed specifications for
the contents of housing elements in Article 10.6 are clearly State
mandates, and the Legislature has suspended these statutory
mandates.
II
ANY WAIVER OF REIMBURSEMENT BY THE COUNTY OF MADERA FOR
STATE MANDATES AS A CONDITION TO RECEIVING COUNTY MEDICAL
SERVICES PROGRAM FUNDING DID NOT RESULT IN A
REINSTATEMENT OF THE SUSPENDED HOUSING ELEMENT
REQUIREMENTS OF CHAPTER 1143 OF THE 1980 STATUTES OR OF
ANY OF THE OTHER UNFUNDED, SUSPENDED MANDATES.
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Respondents have argued, and the trial court accepted the
argument, that because the COUNTY OF MADERA was required as a
condition of receipt of the County Medical Services Program funds
to waive claims for reimbursement of all State mandates, that
Chapter 1143 of the 1980 Statutes (and all the other unfunded,
suspended mandates) were reinstated as to the COUNTY OF MADERA.
There is nothing in either the provisions regarding State
mandates in the Government Code, or in the terms of the waiver
itself, or in the provisions of Chapter 719 of the 1992 Statutes
(which required waivers of claims for reimbursement of State
mandates as a condition of receiving the County Medical Services
Program funding) to indicate that the participating counties were
agreeing to reinstate various unfunded mandates.
The trial court added a limitation on suspension to Government
Code Section 17581 which is not contained in the statute, to the
effect that a mandate is not suspended when a local government
agency has waived its right to reimbursement for State mandates.
However, Government Code Section 17581 clearly sets forth two and
only two requirements for the suspension of a mandate; i.e., that
the statute imposes a mandate subject to the requirements of
Section 6 of Article XIIIB of the California Constitution, and that
the statute has been specifica ""ly identified by the Legislature in
the Budget Act as being one for which reimbursement is not
provided. Both of these requirements are clearly met in regard to
the housing element mandates of Chapter 1143.
The provisions for waiving claims for reimbursement are
independent of any provisions for reinstating or suspending State
mandates. This is apparent. from the provisions of Chapter 949 of
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the 1991 Statutes which required a waiver of claims for
reimbursement for the 1991 -92 fiscal year when the various
mandates, including the mandates of Chapter 1143 of the 1980
Statutes, were still in effect `'- It was not until the 1992 -93
Budget Act that the Legislature suspended a large number of State
mandates for lack of funding, including Chapter 1143.
Neither in the Budget. Acts nor in the Government Code sections
dealing with State mandates is there is any proviso that a
suspended mandate is reinstated in a county which has waived claims
for reimbursement of mandates. There is also no intent in the
State Budget Acts or in the statutory provisions indicating that
suspended State statutes should be in effect in certain counties
depending on whether they have participated in a particular program
which required a waiver of reimbursement as a condition of State
funding, but that they remain suspended in other counties in the
State which have not participated in those programs. Such a
patchwork with regard to the status of State mandates throughout
the State would be inconsistent with the general objective that
State laws be uniformly applied. Moreover, Chapter 719 of the 1992
Statutes provided that the waiver of reimbursement for mandates for
counties participating in the County Medical Services Program was
only to be for the duration of time until the total amount of
waived claims reached $12.4 million statewide, at which time the
right to reimbursement would be reinstated for all the mandates.
It would be incongruous for mandates to be temporarily in effect in
certain counties which waived reimbursement until such time as the
13 Exhibit 4 attached to this brief.
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maximum amount of reimbursable claims were reached pursuant to
Chapter 949 of the 1991 Statutes and at that point in time all the
mandates thereupon immediately be suspended aqain in those
�Icounties. Such a convoluted and nonsensical interpretation of
Istatutes is to be avoided.
Instead of the waiver of the right to
reimbursement having the effect of reinstating a suspended mandate,
the suspension of a State mandate has the effect of eliminating the
right to reimbursement by making the mandate optional.la
III
THE BROAD INTERPRETATION BY THE TRIAL COURT THAT THE
COUNTY WAIVER OF REIMBURSEMENT REQUIRED TO RECEIVE STATE
FUNDING FOR THE COUNTY MEDICAL SERVICES PROGRAM HAD THE
EFFECT OF REINSTATING ALL UNFUNDED, SUSPENDED MANDATES,
INCLUDING THE HOUSING ELEMENTS MANDATES OF CHAPTER 1143
OF THE 1980 STATUTES, WOULD VIOLATE THE PROVISIONS OF
SECTION 6 OF ARTICLE XIIIB OF THE CALIFORNIA
CONSTITUTION.
Pursuant to Chapter 949 of the 1991 Statutes, the State
Controller identified a list of State mandates for which counties
participating in the County Medical Services Program were required
to waive rights to reimbursement. 15 A total of 32 counties were
listed as having participated in the program, and 41 State mandates
were listed as subject to these waiver provisions. If the trial
court's decision were upheld that such a waiver reinstates all of
the unfunded mandates, Article XIIIB, Section 6 would be completely
eviscerated.
14 The claiming instructions of the State Controller for State
mandates lists Chapter 1143/80 - "Regional Housing Needs
Determinations" as a State - mandated program for which a claim could
be filed for the 1991 -92 fiscal year, but not for the 1992 -93
fiscal year. (See Exhibit 6, page 2, attached to this brief.)
15Exhibit 6' attached to this brief.
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The goals of the Article XIIIB, as stated by the California
Supreme Court in County of Los Angeles v State of California
(1987) 43 Cal.3d 46, 61, are as follows:
"The goals of Article XIIIB of which Section 6
is a part were to protect residents from
excessive taxation and government spending
(citation). Section 6 had the additional
purpose of precluding a shift of financial
responsibility for carrying out governmental
functions from the State to local agencies
which had their taxing powers restricted by
the enactment of Article XIIIA in the
preceding year and were ill equipped to take
responsibility for any new programs."
In Long Beach Unified School District v State of California
(1990) 225 Cal.App.3d 155, 1.74 -175, the Court further stated that:
"'The concern which prompted the inclusion of
Section 6 in Article XIIIB was the perceived
attempt by the State to enact legislation or
adopt administrative orders creating programs
to be administered by local agencies, thereby
transferring to those agencies the fiscal
responsibility for providing services which
the State believes should be extended to the
public' (citing County of Los Angeles v State
of California). It is clear that the primary
concern of the voters was the increased
financial burdens being shifted to local
government, not the form in which those
burdens appeared.'
In County of Fresno v State of California
Cal.App.3d 482, 487, the Court stated the following:
"Section 6 was included in Article XIIIB in
recognition that Article XIIIA of the
Constitution severely restricted taxing powers
of local governments. (Citation). The
provision was intended to preclude the State
from shifting financial responsibility for
carrying out governmental functions onto local
entities that were ill equipped to handle the
task. (Citation).. Specifically, it was
designed to protect the tax revenues of local
governments from State mandates that would
require expenditures of such revenues."
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In Kinlaw v. State of California (1991) 54 Cal.3d 326, 328,
Ilindividual medically indigent adults and taxpayers sought to
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enforce Section 6 of Article XIIIB of the California Constitution
through an action for declaratory and injunctive relief regarding
Ithe costs of providing health care services to medically indigent
I adults.
The California Supreme Court dismissed the case on the
basis of lack of standing. However, Justice Broussard in his
dissent, in which Justice Mosk concurred, makes the following
cogent observations:
"For nine years the Legislature has defied the
mandate of Article XIIIB of the California
Constitution (hereafter Article XIIIB) ... one
obvious reason is that in the never - ending
attempts of State and local government to
obtain a larger proportion and share of
available tax revenues, the State has the
power to coerce local governments into
foregoing their rights to enforce Article
XIIIB. An example is the Brown - Presleigh
Trial Court Funding Act (Government Code
Sections 77000, et sea.) which provides that
the counties' acceptance of funds for court
financing may, in the discretion of the
Governor, be deemed a waiver of the counties'
rights to proceed before the commission on all
claims of reimbursement for State - mandated
local programs which existed and were not
filed prior to passage of the trial funding
legislation. The ability of State government
by financial threat or inducement to persuade
counties to waive their right of action before
the commission renders the counties' right of
action inadequate to protect the public
interest in the enforcement of Article XIIIB."
(Supra at 344 -345),
"The counties, however, labor under a
disability not imposed on the State, for
Article XIIIA of the Constitution severely
restricts their ability to raise additional
revenue. It is, therefore, particularly
important to enforce the provisions of Article
XIIIB which prevent the State from imposing
additional obligations upon the counties
without providing the means to comply with
these obligations." (Supra at page 355).
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The ability of local government such as counties to choose or
not to choose to take State funds is indeed illusory in light of
the actions of the State Legislature to remove substantial sources
of funds previously available to counties. In 1992 -4A tIno
Legislature redirected $1.3 billion in property tax revenues from
cities, counties, special districts, and redevelopment agencies to
schools; and for the 1993 -94 t:iscal year an additional $2.6 billion
of property tax revenues was redirected from local governments and
special districts to schools.. (See County of Los Angeles v Sasaki
(1994) 23 Cal.App.4th 1442, 1452). In November of 1993, the voters
adopted Proposition 172, imposing a one -half percent State sales
tax for county and city public safety programs; however, as
disclosed by the Legislative Analysis "Fiscal Effect" Statement on
Proposition 172 in the California Voters Pamphlet, the sales tax
revenues authorized by that proposition offset only "about 65% of
the property tax loss to counties and cities resulting from the
1993 State Budget actions ".`
These reductions in the funding of counties and cities make it
even more imperative that the public interest embodied in Article
XIIIB, Section 6 be enforced. The trial court's holding that
unfunded, suspended mandates are reinstated by virtue of the County
Medical Services Program waiver conflicts with the provisions of
Article XIIIB, Section 6, and should be overturned.
A BLANKET WAIVER OF THE SUSPENDED STATUS OF UNFUNDED
STATE MANDATES SUBJECT TO ARTICLE XIIIB, SECTION 6
(INCLUDING THE HOUSING ELEMENT REQUIREMENTS OF CHAPTER
1143 OF THE 1980 STATUTES) WOULD VIOLATE PUBLIC POLICY.
16Exhibit 7 attached to this brief.
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It would seem to be beyond dispute that the initiative
provision of Article XIIIB, Section 6 adopted by the people cannot
be set aside by a waiver by a local government entity, particularly
where the waiver is extracted as a condition to the local
government's receipt of State funding which it needs for its
operations.
i
As stated in Covino v. Governing Board (1977) 76 Cal.App.3d
1314, 322:
..while as a general rule anyone may waive
the advantage of law intended solely for his
benefit, a law established for a public reason
cannot be waived or circumvented by a private
act or agreement (citing Civ. Code, Section
3513, etc.)."
In regard to whether a teacher could waive rights to
probationary status in order to be employed as a temporary teacher,
the Court stated that:
"'Legislation ... which is calculated to confer
direct or indirect benefits upon the people as
a whole must be presumed to have been enacted
for a public reason and as an expression of
public policy in the field to which the
legislation relates'," Id. at 322.
Similarly, in Strong v. County of Santa Cruz (1975) 15 Cal.3d
720, 727, the California Supreme Court held that:
"...a governmental body may not waive the
requirements of an ordinance enacted for the
public benefit." (Citing Civ. Code, Section
3513, etc.)."
Civil Code Section 3513 states:
"Any one may waive the advantage of a law
intended solely for his benefit. But a law
established for a public reason cannot be
contravened by a private agreement."
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The broad public policies underlying the adoption of Section
6 of Article XIIIB by the voters have been clearly delineated by
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the California courts. (See discussion, infra). The Legislature
has no ability to modify, or to compel a blanket waiver by cities
and counties of, the initiative provisions of Section 6 of Article
XIIIB of the Constitution since only the people can change or set
aside those important public policy provisions of the Constitution.
V
THE TRIAL COURT ERRONEOUSLY DEFERRED TO THE OPINION OF
THE DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT AS TO
THE ADEQUACY OF THE HOUSING ELEMENT OF THE COUNTY OF
MADERA.
It is clear from the decision below that the trial court also
erred by deferring to the opinion of the Department of Housing and
Community Development as to the adequacy of the Housing Element of
the COUNTY OF MADERA. This is evident from the order of the trial
court that its injunction would remain in effect until Madera
County's housing element was determined by HCD to substantially
comply with State housing law ( rather than until the Court make
that determination) (C.T. 1423) In addition, the trial court
stated its decision was based on two negative findings of HCD, and
the court adopted the determinations of HCD. (C.T. 1417)
The trial court's deferral to the opinion of HCD is contrary
to case law. In Buena Vista Gardens Apartments Association v City
of San Dieao Planning Department (1985) 175 Cal.App.3d 289, 386,
the Court stated the following:
"The Department's review of City's housing
element differs from our judicial review. The
Department reviews not only to ensure the
requirements of 65583 are met, but also to
make suggestions for improvements. In that
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context, the lack of quantification makes
Department's job more difficult. However, a
court looks only to ensure the requirements of
65583 are met and not whether, in the court's
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 cities
should adopt Department's recommendations, the
Legislature has stated its recommendations are
advisory (Sec. 65585, subdivision (a))."
(Emphasis in original).
Accordingly, the Court found, with one exception, that the City's
Housing Element was in substantial compliance with Section 65583,
notwithstanding the negative findings of the Department of Housing
and Community Development.
In the recent case of Hernandez v. City -of Encinitas (1994) 28
Ca1.App.4th 1048, 1056 -1057, the Court similarly upheld a housing
element of a city, notwithstanding the determination of the
Department of Housing and Community Development that the housing
element was still not in compliance with State housing law after
the City had made several revisions in response to the comments of
HCD.
Therefore, the trial court's deferral to HCD's advisory
opinions regarding the adequacy of the revised housing element of
Madera County also constitutes reversible error.
VI
CONCLUSION
For all the foregoing reasons, it is respectfully submitted
that the judgment of the trial court should be reversed.
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Dated: M{a 1994 Respectfully submitted,
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DWIGHT L. HERR, COUNTY COUNSEL
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COUNTY OF SANTA CRUZ
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JAMES A. CURTIS, COUNTY COUNSEL
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COUNTY OF NEVADA
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ATTORNEYS FOR AMICI CURIAE
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_27_
IN THE COURT OF M3PEAL
OF THE
STATE OF CIALIFORNIA
FIFTH APPELLATE DISTRICT
Madera County Superior Court Number 49063
TANYA HARRIS, et al.,
Plaintiffs/Respondents
V All .
COUNTY OF MADERA, et al.,
Defendants; Appellants.
RESPONDENTS' BRIEF
Appeal from the Superior Court
of Madera County
Honorable Mark. Thomas, Judge Assigned
BALDWIN S. MOY
AMY R. LEVINE
CALIFORNIA RURAL LEGAL ASSISTANCE
512 East Yosemite Avenue,
P. O. Box 1207
Madera, California 93639 -1207
(209) 674-5671
NUCHAEL RAWSON
SUSAN SAYLOR
HOUSING ELENIENT ENFORCEMENT PROJECT
OF THE LEGAL AID SOCIETY OF
ALANIEDA COUNTY
510 Sixteenth Street, Suite 400
Oakland, California 93638
(209)674---;671
Attorn( ° +s for Pkii tit iffs /Respondents
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7A5! E C F' C( VTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . 2
ISSUES ON APPEAL . . . . . . . . . . , . 3
STATEMENT OF CASE . . . . . , , , , , , , , , , , , , 4
PROCEDURAL HISTORY . . . , . . . . . . . . . . . . . . . 5
ARGUMENT . . . . . . . . . .. . . . . . . . . . . . . . . . . 6
I. CALIFORNIA'S HOUSING ELEMENT OBLIGATION . . . . . 7
II. SCOPE OF APPELLATE REVIEW . . . . . . . . . . . . . . . 10
III• THE BUDGET ACT OF 1992 DID NOT SUSPEND
MADERA COUNTY'S OBLIGATION TO ADOPT A
LEGALLY ADEQUATE HOUSING ELEMENT BY
JULY 1, 1992. . . . , . , , . , . , . . , , , .
A. The Budget Act of 1992 Did Not Affect
Madera County's Housing Element
Obligations, Which Pre -dated
Fiscal Year 1992 -93 . . . . . . , . . . . . . , , .
B. Even If The Court Finds That The
Lack Of Funding For Fiscal Year
1992 -93 Has Some Impact On The Pre -
Existing Housing Element Obligation,
The Lack Of Funding Only Suspends
Certain Reimbursable Activities . . . . . . . . . .
C. Madera County Was Not Entitled To
Reimbursement From The Commission
On State Mandates In Any Event . . . . . . . . . .
IV. THERE WERE NO TRIABLE ISSUES OF MATERIAL FACTS
PRESENTED. . . . . , .. . , . . . . . . . . . . . . .
A. The Issues Framed By The Pleadings Were
Narrow. . . . . . . . . . . . . . . . . . . . . . .
B. The Court Did Not Need To Look Beyond
The Housing Element And HCD's Findings
To Determine Whether The Housing
Element Was Legally Adequate. . . . . . . . . . . .
C. A Material Fact Must Relate To A
Claim Or Defense In the Pleadings
And Is Essential To the Judgment. . . . . . . . . .
D. The County's Proffered "Disputed"
Material Facts Were Questions of
Law or Were Immater,al , , , , , , , , , , ,
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V. THERE BEING NO TRIABLE ISSUES OF FACT,
SUMMARY JUDGMENT WAS APPROPRIATE BECAUSE
RESPONDENTS WERE ENTITLED TO JUDGMENT AS
A MATTER OF LAW. . . 1. . . . . . . . . . . . . . . .
A. Government Code § 65580 Et Seq.
Should Be Liberally Construed To
Achieve Its Low Income Housing Purpose. . . . . . .
B. The County Had A Clear Duty To
Adopt A Housing Element That
Substantially Complies With
State Housing Laws . . . . . . . . . . . . . . . . .
C. HCD Twice Found that the County's
Housing Element Does Not Substantially
Comply with State Law. . . . . . . . . . . . . . .
D. HCD's Administrative Findings Of
Noncompliance Are Entitled To Great Weight. . . . .
E. The County's Housing Element Did Not
Substantially Comply With Gov. Code
§ 65580 Et. Seq. As A Matter Of Law. . . . . . . .
1. The Housing Element Failed to
Adequately Identify Suitable
Sites and to Set Forth a Sufficient
Program of Actions for Housing Development. . .
i) Insufficient Number of Suitable
Sites Were Identified. . . . . . . . . . .
ii) Housing Element on Its Face
Showed that There Were Insufficient
Suitable Sites . . . . . . . . . . . . . . .
iii.Proposed Program of Actions to
Identify Suitable Sites Was Inadequate. . .
2. The Needs Assessment for Assisted
Housing at Risk of Conversion Was
Legally Inadequate, and No Program
of Action Was Proposed . . . . . . . . . . . . .
3. The Housing Element Violates
§ 65583(c) in That the Housing
Element Fails to Set Forth a Sufficient
Equal Housing Opportunities Program. . . . . .
VI. PETITIONERS WERE ENTITLED 'PO INJUNCTIVE
RELIEF ONCE THE COURT DETERMINED THAT THE
HOUSING ELEMENT WAS LEGALLY INADEQUATE . . . . . . . .
A. Injunctive Relief Must be Ordered
Once a Housing Element is Found Inadequate . . . .
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B. Injunctive Relief Was Necessary and
Appropriate in This Case . . . . . . . . . . . . 35
2
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 37
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1
TABLE OF AUTHORITIES
2
Case
Anderson
v. San Francisco Rent Stabilization
4
_
and Arbitration Board
(1987)
192 Cal.App.3d 133(,, 1343, 237 Cal.Rptr. 894, 898....
23
5
Banning Teachers Assoc., CTArN.EA_v.Public Employment Relation Bd
6
(1988)
46 Cal.3d 1262, 12F-9... ............................
24
7
Bownds v.
City of Glendale
(1980)
113 Cal.App.3d 875 890 . .............................
7
8
Bruce v..
Gregory
9
(1967)
65 Cal.2d 666, 670, 56 Cal.Rptr. 265, 268............
34
10
13uena Vista Gardens Apartments Assn. v. City of San Diego
Planning
Dept
11
(1985)
175 Cal.App.3d 289: 295, 220 Cal.Rptr. 732, 734....
8,17
12
Burton v.
Security Pacific National Bank
(1988)
197 Cal.App.3d 972 976, 243 Cal.Rptr. 277, 279......
19
13
Camp v. Mendocino County Boatd of Supervisors
14
(1981)
123 Cal.app.3d 334 357, 362, 176
Cal.Rptr. 620, 635, 638... .. .. . .................... 17,18,21
15
Chevron U.S.A. v. Superior Court
16
(1992)
4 Cal.App. 45h 544 547, 5 Cal.Rptr.2d 674, 677......
17
17
Committee
For Responsible Planning v. City of Indian Wells
(1989)
209 Cal.App.3d 1001, 101"3. ........................
7,32
18
Concerned
Citizens of Calaveras County v. Board of
19
Supervisors
(1985)
166 Cal.App.3d 90, 96, 212 Cal.Rptr. 273, 277........
18
20
deBottari
v. City Council
21
(1985)
17 Cal.App.3d 1204, 1213, 217 Cal.Rptr. 790,795.......
7
22
City of Carmel by the Sea v. Board of Supervisors
(1982 -)
137 Cal.App.3d 964 187 Cal.Rptr. 379 ................
33
23
DiGiorgio
Fruit Corp. v. Dept, .. of Employment
24
(1961)
56 Cal.2d 54, 61 -6�, 13 Cal.Rptr. 663, 362
P. 2d
487 ............... .. . .......................
13,23
25
DeYoung v. City of San Diego
26
(1983)
147 Cal.App.3d 17., 18 194 Cal.Rptr. 722, 726.....
23,33
27
Fitch v.
Pacific Fidelity Lile ins. Co.
(1975)
54 Cal.App.3d 140, 14t`3 Cal.Rptr. 445, 454........
21
28
Garat v.
City of Riverside
(1991)
2 Cal.App. 259, :! Rptr.2d 504,524.........
.. %,9
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2
3
4
5
6
7
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10
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12
13
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15
16
17
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22
23
24
25
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27
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I
Gay Law Students Assn. v. Pacific Tel. & Tel. Co.
(1979) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14, 34 ............. 23
Guardians of Turlock's Integrity v Turlock City Council
(1983) 149 Cal.App.3d 584, 593 197 Cal.Rptr. 303, 308....... 34
Horn v. Swoap
(1974) 41 Cal.App.3d 375, 382, 116 Cal.Rptr. 113, 117....... 24
Joseph E. DiLoreto Inc v O'Neill
(1991) 1 Cal.App.4th 1.49, 156, 1 Cal.Rptr.2d 636, 640....... 19
Kaslabaae v. West kern County Water District
(1978) 84 Cal.App.3d 529, 538, 148 Cal.Rptr. 729, 734.....,. 21
Kinas County Farm Bureau v City of Hanford
(1990) 221 Cal.App.3d 692 270 Cal.Rptr. 650, 676........ 17,33
Lesher Communications Inc v City of Walnut Creek
(1990) 52 Cal.3d 531, 542, 277 Cal.Rptr. 1,6 ................. 7
Lute v. Governing Board
(1988) 202 Cal.App.3d 1171, 1.183 „ 249 Cal.Rptr. 161, 164... 23
Mission Community Hospital v Kizer
(1993) 13 Cal.App.4th 1682, 1691, 17 Cal.Rptr.2d 303,309.... 24
Morales v. Fansher
(1989) 209 Cal.App.3d 1589, 1584, 258 Cal.Rptr. 96, 97...... 9
Nakashima
(1991) 231 Cal.App.3d 367; 382, -'al.Rptr. 508, 516.......... 19
Napa Valley Educator's Assn_ v. Napa Valley Unified
School Dist.
(1987) 194 Cal.App.3d 243: 2`52, 239 Cal.Rptr. 395, 400...... 24
O'Loane v. O'Rourke
(1965) 231 Ca1.App.2d 774, 782 -783, 42 Cal Rptr. 283,288.. 6,33
Petus v. Standard Cabinet Works
1987) 249 Cal.App.2d 64, 66, 57 Cal.Rptr. 207, 210.......... 18
Save E1 Toro Assoc. v. Days
(1977) 74 Cal.App.3d 64, 67, 141 Cal.Rptr.Rptr. 282, 284.... 34
Sierra Club v. Board of Supervisors
(1981) 126 Cal.App.3d 698 704, 1179 Cal.Rptr. 261, 264...... 33
Steelgard, Inc. V. Jannsen
(1985) 171 Cal.App.3d '79, 88, 21' Cal.Rptr. 152, 159........ 24
Twain Harte Homeowners Assn. ._v._ County of Tuolumne
(1982) 138 Cal.App.3d 564 "`4, 88 Cal.Rptr. 233, 237...... .. I
1
Westinghouse Electric Corp _
v._ Pac�_f is Gas b_ Electric Co.
2
(1964) 326 F.2d 575, 579
. ......... ........
21
......
3
Wilkinson v. Workers' Comp
Appeals Bd.
(1977) 19 Cal. 3d 491, 501„ 138 Cal.Rptr. 696, 564..........
13
4
Williams v. Mariposa county
School District
5
_United
(1978) 82 Cal.App.3d 843,
147 Cal.Rptr. 452, 457............
21
6
Constitution
7
California Constitution, art
13B, § 6 .........................
- 8
Statutes
9
Article 10.6, Title 7, Division 1 ......................
Chapter 3 (Gov. Code §§
65580 - 65589.5)
.11
10
Government
Code
11
§
17500 .....................
§
17561 ....................
..................... . . . . .........
10
12
§
17581 .....................
......,.. .........
11
§
65000 ....................,
... ......................... .........
15
13
§
65030.1 ...................
...,.......... .............
7
§
65300 ...................
... ...............................
7
14
§
65580..
....................
•7, .19,.
6
..... ............ 21,,. 24,
25
§
65580(a) ..................
15
§
65580(b) ..................
.........
21
655
. ............................21
16
§
65581(a) ..................
...,....... ....6.,21
§
65581(b) ...............
................. ....0.
17
§
..
65583.......
... ...............
21
..............
. .....................8,.22,
25
§
65583(a). ................
18
§
65583(a)(1)............
..................... ....... 24,
25
§
65583(a)(8)............
...........................
25
19
§
65583(b) ................
.... ............................
... .........
3,
§
65583(c) ..................
. ............ .............
25
20
§
65583(c) (1) ............
... ........................ 25,
31
§
..
65583(c) (5) ............
...........................
25 i
21
§
..
65754... ..................
.......... .............33
31
§
65755. ...............
..... ............................
22
§
65583(c)(5) . . . .
�:.:..' . ............ ......31
. . .
. . .
§
65583 (c) (6) . .
23
§
. . . . .
65583 (a) (8) . . .
. . . . . .
31
. . . .
. . . . . . . . . . . . .
30
§
65583(a) (1) . .
24
§
. .
65583 (c) (1) . .
. . • . • . .
25
. . . . .
. . . . . . ,
. . . . 2525
29
§
65583(b) . . .
25
§
. . . . .
65585.......
i
§
.............
65585(a)......
.......................28
26
§
.
65585(b)..... .............
.............
§
65585(f)'2)............
.......0..... ............
12
27
......................
9
28
1
2
3
4
5
6
7
_ 8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§
65587
§
65588 ..............
...........
11
§
§
65588(b) ............. ..
65588(b)(2)...............
... ..................... ............................. 1,
11 '`3
3
§65588.1
................
.... ....
........ ........13,14
8
§
65588(b) . . . . . . . .
. . . . . . . . . .
11
§
65755 . . . . . . . . . .
. . .
8,
32
§
65580 . . . . . , , , , .
7, 19, 21,
24,
25
§
65300 . . . . . . . . .
. .
. .
6
§
65581(a) . . . . . . . .
. . . . . . . . . . .
6
§
65588 . . . . . . . . . .
. . . . . . .
13
§
65584 . . . . . . . . .
. . .
.1,
3
§
65583 . . . . . . . . . .
. . . . . . . .
22
§
65583 (c) (5) . . . . . . .
. . . . . . . . . .
. .
31
§
65583 (c) (6) . . . . . . .
. . . . . . . .
. .
31
§
65583 (a) (8) . . . . . . .
. . . . . . . . . . .
. .
30
§
65583 (a) (1) . . . . . . .
. . . . . . . . . . . . . .
25
§
65583 (c) (1) . . . . . . .
11 . . . . . . . . . . . .
25,
29
§
65583(b) . . . . . . . .
. . . . . . . . . . . . . .
. .
25
§
65583(a) . . . . . . . .
. . . . . . . . . . . .
. .
25
§
65583(a) . . . . . . . .
. . . . . . . . . . . . . .
. .
25
§
65585(a) . . . . . . . .
. . . . . . . . . . •
24
§
65583 . . . . . . . . . .
. . . . . . . . 21,
22,
25
$
65581(b) . . . . . . . .
. . . . . . . . . . . . .
. .
21
§
65581(a) . . . . . . . .
. . . . . . . . . . .
. .
21
§
65580(b) . . . . . . . .
. . . . . . . . . . . . . .
. .
21
§
65580(a) . . . . . . . .
. . . . . . . . . . . . .
21
§
65588.1. . . . . . . . .
. . . . . . . . . . . . .
13,
14
§
65588(e) . . . . . . . .
. . . . . . . . . . . . . .
. .
13
§
6558 . . . . . . . . . .
. . . . . . . . . .
. .
13
§
65585(b) . . . . . . . .
. . . . . . . . . . .
. .
12
§
65588(b) . . . . . . . .
. . . . . . . . .
11
§
65587 . . . . . . . . .
. . .
.8,
11
§
65755 . . . . . . . . . .
. . . . . . . . . . . .
32
§
65754 . . . . . . . . . .
. . . . . . . . . . . 8,
32,
33
§
65585 . . . . . . . . .
. . . . .
. .
8
§
65588 (b) (2) . . . . . . .
. . . . . . . . . . . .
8
§
65583. . . . . . . . .
7,
8
§
65580 . . . . . . . . . .
. . . . . . . . . 7, 19, 21,
24,
25
§
65300 . . . . . . . . .
. . . .
. .
§
65581(a) . . . . . . . .
. . . . . . . . . . . . . .
•
6
§
65588 .. . . . . . . . . .
. . . . . , . . . . . .
3,
13
§
65584 . . . . . . . . . .
. . . . . . . . . .
•
3
§
65583 . . . . . . . . . .
. . . . . . . . . . . .
1,
22
Health
& Safety Codes
§
33324
34
§
50152
24
§
50407
13
§
50459
13
1
Stats.
1967,
c
1658,
P.
403`
�j _5 .............................
•..•••.••
2
Stats.
1972,
c
1406
(SB
90).
Stats.
1980,
c
1143......
................................. 10
3
Stats.
1984,
c
1009,
§
...
44..
.. . . ......... 10
Stats.
1984,
c
1039
§
12..
..... ..... . . ... .... 22
.�
4
Stats.
1992,
c
1
587.......
..... .. .... .................
..
....................... passim
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
i
I INTRODUCTION
2 Respondent farmworkers. -and other low income persons
3 (petitioners below) filed this writ of mandamus action in response
4 to appellants' (respondents below, "the County" hereafter) continued
5 failure to adopt a legally sufficient housing element for its
6 general plan -- a housing element that "makes adequate provision for
A
7 the existing and projected needs of all economic segments of the
8 community." Gov. C. §65583 (emphasis added) . The County takes this
9 appeal from an order and judgment for respondents granted after
10 cross - motions for summary judgment. The order and judgment
11 compelled the County to adoot an adequate housing element and
12 enjoined the issuance of buiding permits and granting of zoning
13 changes, variances and subdivision maps for two local sites until
14 the element was brought into compliance with the law. In
15 conformance with the trial :ourtls ruling, the County finally
16 adopted a legally adequate housing element -- almost 15 months after
17 the July 1, 1992 statutory deadline, See infra.
18 The County contends that. the state Budget Act of 19921'
19 suspended its duty to adopt. j housing element and that the trial
20 court ignored triable issues of material fact. It errs on both
21 counts. Madera County's obligation to adopt a housing element pre -
22 dated the Budget Act, and in any event, the County expressly waived
23 state reimbursement for its wor-k on the housing element. Moreover,
24 the failed to present the triiii court with any issues of material
25 fact.
26
27
23---
1. Chapter 5` 5tats 29 ')2.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
ISSUES _ON APPEAL
By this appeal the t'- runt,. presents three questions for
consideration by the Court:
1. Whether the Budget Act f 1992 suspended the County's
mandatory duty to adopt. a housing element in substantial
compliance with state lad by July 1, 1992.
2. Whether the trial court erred in finding the case
presented no disputed triable issues of material fact such that
respondents were enti_tlel to judgment as a matter of law.
3. Whether the trial court gave improper deference to the
findings of the state administrative agency charged with
determining if a local h,)using element substantially complies
with state law.
Question three, the issue of deference to administrative agency
findings, actually arises in the context of the analysis of both
questions one and two. Consequently, respondents address this issue
in the framework of their d sc-ussi.or the first two questions.2/
21 2. As a general rule, an appeal presenting only academic or
abstract - questions is subject to dismissal as moot. Paul v. Milk
22 Depots, Inc. (1964) 62 Cal.2d 129, 132, 41 Cal.Rptr. 468, 470.
Here, all questions presented by the County's appeal are academic
23 because the County complied with the trial court's order and the
injunction terminated. However, the Court of Appeals retains
24 discretion to resolve matters of continuing public interest if the
issue is likely to recur. Liberty Mut. Ins. Co. v. Fales (1973) 8
25 Cal.3d 712, 715 -716, 106 Cal.Rptr. 21, 23. See also Downtown Palo
Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d
26 384, 391, 225 Cal.Rptr. 559, 5)61. In this regard, the issue of the
effect of the state Budget. Act oP .4 +92 could arise again in any
L7 litigation attacJzing the tailu:r.e of 3 local government to adopt an
adequate housing element 1 r .c:�, to t.,:e :-uly 1, 1992 deadline. The
28 Court, therefore, may elect t r'et,i.�ti the appeal to resolve solely
the Budge` F..ct issue.
i
1 STATEMENT OF CASE
2 Pursuant to Government. 'ode C. 65584', the state determined
3 Madera County's regional itare c,t the state's new housing
4 construction needs for the per Lod of January 1, 1991 to July 1, 1997
5 to be: 5,203 new housing unit, rncLuding 2,295 affordable to low
6 and very low income households and 1009 affordable to moderate
4
7 income households. (CT 740) Pursuant. to § 65583(c), the County's
8 housing element must identify adequate sites to accommodate these
9 regional needs. And pursuant ':o § 65588, the County was required to
10 adopt a housing element addressing these needs by no later than July
11 1, 1992.
12 County failed to adopt an updated and legally sufficient
13 Meusing element on or before July 1, 1992. draft elemen the
14 County submitted to the cal ifornia Department of Housing and
15 Community Development (hereafter "HCD") on or abou"ay 15, 1992 was
16 found out of substantial compliance by the department. (Clerk's
17 T ranscri p t [" CT "] 754 -55 Or Se pt.. em_be_r `8 _, 19 R92, the County adopted
18 only a slightly revised version of the May 15 draft housing element,
19 and,,,�d it to HCD for review on November 11 199 Also in
20 the Fall of 1992, the County ntt�red nto a contract with the State
21 Department of Health Ser %,ices ;DHS) whereby the County received
22 funding for medical services r) exchange for agreeing to waive any
23 claims for reimbursement of state mandated local programs. (CT
24 1084 -85)
25
26
28 3. All statutes cited -iro t. _,r. the Government Code unless
otherwise indicated.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROCEDURAL HISTORY
Respondents filed their petition for writ of mandate
challenging the adopted housing element on January 5, 1993,
obtaining an alternative writ- compelling the County to adopt a
revised housing element in substantial compliance with state law or
to show cause why writ shoulc:J not issue. The County demurred and
the hearings on both motion were set for February 10, 1993.
In the interim, on..February 2, 1993, HCD once again found the
element out of substantial compliance with state law. At the
February 10 hearing the trial court overruled the County's demurrer
and invited the parties to file cross- motions for summary judgment.
The hearings on the cross - motions were set for April 28, 1993.
Subsequently, the County fi!'ed an answer to respondents initial
petition.
At the hearing on April ,8 the trial court denied the County's
motion for summary judgment ind granted respondents' summary
judgment. The court issued = writ of mandate ordering the County
bring its housing element into substantial compliance with state law
and enjoining the County from approving new development in specified
areas until it adopted an adequate housing element. The court also
directed respondents to prepare a statement of decision and
judgment, and it reserved urisdiction to review the County's
compliance with the order.
On May 28, 1993, in response to some draft revisions, HCD
found, for the third time, that the County's housing element
remained legally inadequate. 'her after on June 25, respondents
filed a motion for modif cat cn of the trial court's order, which
was heard on July 16, 139 At the hearing the court granted
11
1 respondents' motion and issuect ark order that, inter alia, enjoined
2 the County from issuing build ng permits for residential
3 development, granting zoning change3, or granting subdivision map
4 approvals anywhere in the (:.()unty irp.tl the housing element was
5 brought into substantial corrplLance with the law. (Exhibit "A"
6 attached hereto.) The court r ;tayed the order until September 23,
7 1993 and set a hearing for that (late upon the representation by the
8 County that it was preparing significant revisions to the element
9 that were acceptable to HCD. )n August 16, 1993, the court executed
10 the judgment prepared by respondent& -.
11 In late August 1993, the County submitted yet another proposed
12 amendment to its housing elements to HCD for review. Prior to the
13 September 23 hearing, HCD informed the County that its proposed
14 amendment would finally briny the housing element into compliance
15 with state law. In November 5 -9?, the County adopted the state -
16 approved housing element.
17
18 ARGUMENT
19 This case must be viewed in the context of the paramount
20 importance of the housing element obligation in addressing
21 California's critical shortage of affordable housing. Housing
22 affordable to the state's low and very low income families will not
23 and cannot be built if local governments fail to affirmative plan
24 for affordable housing. In adopting the housing element obligation,
25 the Legislature declared:
26 Local and state governments have a responsibility to use the
powers vested within then to Lacilitate the improvement and
27 development of housing to make adequate provision for the
housing needs of all F = <; i � e rments of the comrunity.
28
565580(d). And t stated i,�:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
To assure that counties and cities recognize their
responsibilities in Conti- ibiat:n� to the attainment of the state
housing goal.
§65581(a)
In the instant case, the County of Madera failed to adopt a
housing element in compliance with state law until 15 months after
the statutorily mandated July 1, 1992 deadline and only after phis
action was filed. It mistakenly invokes the protection of the
Budget Act of 1992, curiously contending that the Budget Act's
failure to appropriate funds for reimbursement for the preparation
of housing elements for the 1992-1993. fiscal year somehow removed
its obligation to prepare ai• element prior to July 1992. The
County's error appears all the mere contrived and disingenuous when
its express waiver of any entitlement to receive reimbursement for
housing element preparation s taken into account. Finally, it
attempts to bootstrap illusor,; issues of material fact from proposed
revisions to the housing eleme J that were not a part of the adopted
element that respondents chat enged
Respondents first exarrine 3alifornia's housing element
obligation and the scope of appellate review of the granting of
summary judgment. They then pro ✓ide a comprehensive consideration
of the Budget Act and triable issues of fact questions.
I. CALIFORNIA'S HOUSING ELEMENT OBLIGATION
Each city and county in C:..>i 1 i forn is must "adopt a comprehensive,
long -term general plan" fo- i s physical development. § 65300. As
the Court explained in O'. Loa, e_v_, :;'Rourke (1965) 231 Cal. App. 2d
774, 782 -783, 42 Cal.Rptr. 1
the plan is, in short, Corr ;titution for all future
development .Y its, i -h., Any s_:,- division or other
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
development would nece!:7saril} bP considered in its
relation to the genera"an
It is the basic land use chat -er go%.�ruing future land use. Lesher
Communications, Inc. v. City__of_Wa.ln,ut Creek (1990) 52 Cal.3d 531,
542, 277 Cal.Rptr. 1,6. As `,:IEr Legislature has declared:
(d)ecisions involving the future growth of the state, most of
which are made and will continue to be made at the local level,
should be guided by an effective planning process, including
the local general plan, and should proceed within the framework
of officially approved statewide goals and policies directed to
land use, population growth and distribution, development, open
space, resource preservation and utilization, air and water
quality, and other related physical, social and economic
factors."
§ 65030.1
As the constitution for future development, the general plan
provides standard against which all local land use and development
decisions must be measured fo- consistency. The "combined effect"
of the State Planning and Zoni.nq Law (Gov. C. §§ 65000 et seq.) is
to:
require that cities and counties adopt a general plan for the
future development, configuration and character of the city or
county and require that future land use decisions be made in
harmony with the general plan.
Bownds v. City of Glendale (1,.30) 11 Cal.App.3d 875, 880. Indeed,
"the requirement of consistent :y is the linchpin of California's land
use and development laws; it is the principle which infused the
concept
of planned
growth +,iit.h tte
farce of law." deBottari
v. City
Council
(1985) 17
Cal.App.3d ;_2104,
1213, 217 Cal.Rptr. 790,
795.
Of
the seven
elements a genera; plan must include, the
housing
element is of "preeminent im�orl.an(re of Committee For Responsible
Planning v._City of Indian Wei;_s 1 =89) 209 Cal.App.3d 1005, 1013.
The housing element must m,A. ,-.d,_-Late provision for the housing
needs of all economic segmEr the community. 55 65580 and 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
28
65583. In enacting the hou>inci element requirement, the legislature
declared that the availabil�f cf t;)using is of "vital statewide
importance" and that:
the early attainment of decent housing and a suitable living
environment for every Caaifornia family is a priority of the
highest order.
Gov. Code 65580. See Buena Vista Gardens Apartments Assn. v. City
of San Diego Planning Dept.. 1985) 175 Cal.App.3d 289, 295, 220
Cal.Rptr. 732, 734.
Local governments such as the County which are not part of an
established regional Coalition of Governments (COG) were required to
adopt revised housing elements by Jul ,j 1, 1992. § 65588 (b) (2) The
revision must contain, inter,alia:
. . . an identification and analysis of existing and projected
housing needs and a statement of goals, policies and quantified
objectives, financial resources and scheduled programs for the
preservation, improvemen* and development of housing.
§ 65583.
The locality must submit its draft housing element to HCD for
review 45 days prior to its idoption. § 65585. HCD must then
determine whether the draft substantially complies with state law
and issue written findings. _[cA -. After adopting a housing element,
the locality must then submit t:he adopted version to HCD for review.
Id. Once again, HCD must review the element for substantial
compliance with state law and issue written findings. Id.
Failure
to adopt
an adequate housing
element renders the
general plan
inadequate
arid, ~herefore, any
land use decision is
inconsistent
per se with
an adequate general
plan. Pursuant to §§
65754 and §65755 a trial cour ° must issue an order curtailing t: ^e
development approval author i`. , cf a c° >mmunity if the court finds t: e
locality lack: an adequate t_,,- 1 E- fr.ment.
1 Upon attainment of a HC[: find-ncl of substantial compliance,
2 state law confers a rebutt <;b1? r.,resumption of validity of a
3 locality's housing element in in} legal challenge to it.-'' 5 65589.5
4
5 II. SCOPE OF APPELLATE REVIEW
6 Since the trial court's ruling on a motion for summary
7 judgment is one of law, the appellate court conducts an independent
8 review of the documents submitted in connection with the motion and
9 considers their construction and effect to determine whether triable
10 issues of material fact were raised. Garat v. City of Riverside
11 (1991) 2 Cal.App. 259, 292, CaL.Rptr.2d 504, 524.
12 The purpose of a motion for summary judgment is to establish
13 whether or not a lawsuit con!-ains triable issues of fact, if it
14 does, summary judgment can't be granted. If no material factual
15 issues exists and the only material issue presented is a question of
16 law, it is not only proper bt.it i'_ is preferred that the litigation
17 be resolved by summary disposition. Morales v. Fansher (1989) 209
18 Cal.App.3d 1581, 1584, 258 Ca;.Rptr 96, 97.
19 The County raised no i.,sue of material fact regarding the
20 effect of the Budget Act of 1942. Accordingly, the construction of
21 the Budget Act presents purely questions of law, and respondents
22 will address this issue first
23
24
4. In the instant case, the County submitted its housing
25 element to HCD for review and comment on four separate occasions
even though the law only requires one submission after which the
26 locality may adopt it "as is" with its own findings on the negative
comments by HCD. S 65585(f)(?i The County's course of conduct in
27 voluntarily engaging in the ,Amin trative review process to the
fullest extent, conclusivei,z c:lemon trates that it sought a HCD
28 finding of compliance in order ~�_o in %cke the rebuttable presumption
cf validity. -.,f i_ts, housinca r. -nt 'c)r p +.irpcses of this lawsuit.
I
i
1 III. THE BUDGET ACT OF 1992 DID NOT SUSPEND MADERA COUNTY'S
OBLIGATION TO ADOPT A LEGALLY ADEQUATE HOUSING ELEMENT
2 BY JULY 1, 1992.
3 Appellants argue that: they were excused from compliance with
4 the state housing element laws at the time that respondents filed a
5 writ of mandate. To understand why the County's performance was not
6 excused by the Budget Act of 992 -93, it is helpful to look at +the
7 state reimbursement process.
8 The State of California has required that cities and counties
9 adopt a housing element as part of their general plan since 1967.
10 1967 Cal. Stats. Ch. 1658, p. 4035, 55. In 1972, the State
11 legislated that any new requirement:, or "mandate ", imposed upon a
12 local government would be paid t'or by the State. 1972 Cal. Stats.
13 Ch. 1406 (SB 90). The requirement that localities be reimbursed for
14 new mandates was later included Ln the state constitution, but this
15 requirement does not pertain to mandates such as the housing
16 element, which were in place )efore 1975:
17 Whenever the Legislature or any state agency mandates a new
program or higher level of service on any local government, the
18 state shall provide a subvention of funds to reimburse such
local government for the costs of such program or increased
19 level of service, except: that the Legislature may, but need
not, provide such subvention of funds for the following
20 mandates: ... (c) Legislative mandates enacted prior to January
1, 1975. Cal. Const. art 13B, 56.
21
The State set up a mechanise °:o implement the "subvention ", or
22
reimbursement process, which; r its current form, is known as the
23
Commission on State Mandates See i. ;ovt. Code §17500 et seq.
24
In 1980, the housing element obligation was expanded, imposing
25
on localities "substantia:.l./ -foie detailed requirements" such as a
26
specific schedule for per ( i r-c sions, and a requirement to
27
incorporate an appropriate nzre f the regional housing neeas.
28
Legislative Counsel's Digest gal. Stats. Ch. 1143 (Chap'�er
i
1 1143 amended Article 10.6 of 7 : t le 7 cif the Government Code (§ §65580
2 - 65589.8)).
3 The 1980 housing element amendments included an increased level
4 of service for which reimbur- 3ement was required: "Chapter 1143,
5 Statutes of 1980, was determined by the Board of Control (successor
6 agency is the Commission on State Mandates) on August 29, 1981 to
7 contain a cost mandate ra_imtursabl.e under Section 17561 of the
8 Government Code for cities anc counties." Mandated Cost Manual for
9 Counties, Chapter 1143/80, Page 1 (CT 1180 -98).
10 The Commission on State Mandates ultimately determined that
11 cities and counties were entitled to reimbursement for certain
12 specific housing element activities The lack of funding in any
13 fiscal year would affect only those specified activities. But
14 Madera County was required t(:) prepare an adequate housing element
15 before the Budget Act of 1.992 --93 took effect. Because Madera
16 County's duty to prepare and a<: opt an adequate housing element arose
17 before the housing element activities were defended, the County was
18 appropriately subject to a wr_t of mandate.
19 A. The Budget Act of 1992 Did Not Affect Madera county's
Housing Element Obl:Lgations, Which Pre -dated Fiscal Year
20 1992 -93
21 The lack of funding for certain housing element activities
22 during fiscal year 1992 -93 did not. retroactively relieve Madera
23 County of its housing eleme,rt obligations. Madera County was
24 required to adopt a current. ind legally valid housing element no
25 later than July 1, 1992. Goy; Code §§ 65587, 65588(b). In order
26 to comply with this dead_intr Madera County had to gather data,
27 prepare a draft housing eLe;-- -nt nr,1cl public hearings, and submit
28 its draft to the DepartME n* Fiot{: >inq and Community Development
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(HCD) for review, all prior t(, July 1, 1992. See 5 65585(b)
least 90 days prior to adoption c its housing element
planning agency shall submit a draft element ... to t.e
department. ") Madera County's housing element obligations arose
before the 1992 -93 fiscal yeai began.
In fact, Madera County ac- ivally undertook all its reimbursable
A
housing element activities during fiscal year 1991 -92. As
demonstrated by the claims For reimbursement submitted to the
Commission on State Mandates, Madera County made a claim for
reimbursement of certain housing element activities incurred during
fiscal year 1991 -92, in anticipation of the July 1, 1992 deadline
(CT 1200 -17). The Governor,-; Budget for 1992 -93 shows that the
state had money to reimburse t-ae County during the 1991 -1992 fiscal
year. (CT 645). Madera Count} cannot now claim that lack of funds
during 1992 -1993 relieved it of a-i obligation, when money was
available during the time that t -ie cbligation was undertaken.
HCD, the agency in charge of reviewing and approving housing
elements, has issued an opinion that, in jurisdictions with a
deadline of July 1, 1992, the housing element obligation remains
intact in spite of the Budget Act of 1992 -93:
Local governments were required to complete the revision of
their elements prior to the 1992 -93 fiscal year ... Therefore,
the mandate suspension does not affect the current preparation
of any housing element due in prior years.... The mandate
suspension does not retroactively affect any locality's
responsibility to update its element according to the statutory
schedule.
(CT 576-77,11 The statutory int:.erhret�ition of the Budget Act by HCD
should be given great weight ncE ; {CD is the agency responsitie
for developing and implen� -f� t inc: C liforni.i's housing poli:-,-,
promulgating housing element -; i i . c^e l':r c-s, and r--viewing every hous:: -.g
1 element in California for with state law. See Healtn &
2 Safety Code §§ 50407 and 504 "9; Go%t. Code §§ 65584- 65539.3.
3 It is a settled principle of statutory interpretation that 'The
contemporaneous administrative construction of a statute by an
4 administrative agency charged with its enforcement and
interpretation is entitled to great weight unless it is clearly
5 erroneous or unauthorized.' Wilkinson v. Workers' Comp. Appeals
Bd (1977) 19 Cal. 3d 491, 501, 138 Cal. Rptr. 696, 564 P. 2d
6 848; see also DiGiorgio_ Fruit._.Corp. v. Dept. of Employment
(1961) 56 Cal. 2d 54, 6 -62, 13 Cal. Rptr. 663, 362 P. 2d'487.
7
The contemporaneous administr,itive construction of the Budget Act of
8
1992 -93 was that the pre- c= x.i_•tinc; housing element obligations
9
remained intact.
10
Contrary to appellant's claims, Madera County's duty to adopt
11
a valid housing element by , / 1/ 92 was not suspended at any time.
12
The effect of the Budget Act of L992 -93 was to make certain
13
reimbursable housing element ,activities optional during fiscal year
14
1992 -93. Full funding was ova. -lable for activities performed in
15
fiscal year 1991 -92, and M&Iera County in fact performed those
16
activities prior to the Bu,dcl(" Act CT 645, 1200 -17) The subsequent
17
lack of funding does not retr.:act.ive'iy bar the enforcement of a pre -
18
existing housing element obligatior
19
Because the legislature failed to provide money to reimburse
20
localities for certain expenditures in fiscal year 1992 -93, and
21
again in fiscal year 1993 -94 ~he legislature also decided to give
22
localities extra time to )prepare future housing elements. See
23
§65588(e) (Making Madera Coun+_.y's next housing element revision due
24
in 1999 rather than 1997.) and § 65588.1. In extending the
25
deadlines for future housing eleme ^ts, the legislature made clear
26
that the lack; of funding i,i c?n y a prospective effect: "The
27
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extension provided in thL s shall not limit the existing
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responsibility under sul.�,ii , ; .c r: of Section - 65588 of any
k
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jurisdiction to adopt a hou: i n{r : ,ent. in conformance with t`:is
article." §65588.1.
A clear reading of the hoisira element statutes, along with
consideration of HCD's inter;_>> etati - n of the Budget Act leads to the
conclusion that Madera County's housing element obligation was not
affected by the subsequent budget activities.
B. Even If The Court Finds That The Lack Of Funding For
Fiscal Year 1992 -93 Has Some Impact On The Pre - Existing
Housing Element Obligation, The Lack Of Funding Only
Suspends Certain Reimbursable Activities
Assuming arguendo that. the Budget Act of 1992 -93 impacted on
Madera County's duty to adopt a housing element by July 1, 1992.
Although contrary to the legi� lative intent, even if this were true,
the lack of funding would onl; suspend six specific activities which
the state has determined are eligible for reimbursement.
According to the claiming instructions issued by the Commission
on State Mandates pursuant t: i :s .authority under section 17558(b)
of the Government Code, "[c ties ind counties will be reimbursed
for costs of performing certain activities" which were not required
under pre -1975 housing elemert. law. Mandated Cost Manual, Pages 3,
4.
Specifically, a county may be reimbursed for expenses incurred
in performing the following activities: (1) documenting the
relationship between zoning and public services to available land;
(2) collection and analysis of Employment data; (3) review of "fair
share" housing data; (4) collection of data on handicapped and farm
workers; (5) energy conservation ariiysis, and; (6) documenting the
public participation proce�,,t r: .t t d Cost Manual, Page 4.
Only six specific ho_isi j i-.:- ' activities are reimbursable.
Therefore, ten the state vide reimbursement mane,.' in
1 the same fiscal year that t-h e element is due, the locality's
2 duty to perform those six activities becomes optional.
3 While appellant claims that t::e lacr: of funding suspends the entire
4 housing element obligation, the legislation instead indicates that
5 lack of funding may onl,, it fe.t (- ertain parts of a locality's
6 obligation. As cited on pages 1iii, of appellant's brief, section
7 17581 of the Government Cade prc,vides:
8 (a) No local agency shall be required to implement or give
effect to any statute or executive order, or portion
9 thereof, during an�__fiscal year if all of the following
apply:
10
(1) A statute or executive order or portion thereof, has been
11 determined by the Legislature, the Commission, or any
Court to mandate a new program or higher level or service
12 requiring reimbursement of local agencies pursuant to
Section 6 of Art.icl +; 1't (b) of the California Constitution.
13
(2) The statute or executive order, or portion thereof, has
14 been specifically identified by the Legislature in the
Budget Act for the fiscal year as being one for which
15 reimbursement is nc:,t provided for that fiscal year. Cal.
Govt. Code 517531 emphas 1_E:, added) .
16
Because only a portion of 'Ai, locality's housing element has been
17
deemed to require reimbursement, only that portion may be suspended
18 �
during a fiscal year when nc: money Ls allocated.
19
As interpreted by HCD, "the State Budget for Fiscal Year 1992-
20
1993 suspended the mandates required pursuant to Chapter 1143,"
21
meaning-that, during fiscal yea:- 11)9',! -93, localities were relieved
22
from the performance of these six specific activities. (CT 576 -77).
23
The reimbursable mandates wf->re suspended, not the entire duty to
24
prepare and adopt a housing 1e nen'.
25
C. Madera County Was Not Entitled To Reimbursement From The
26 Commission On State Mandates In Any Event
27 Finaliy, Madera Court ., its right to reimbursement for
1
28 any housing element activ t fiscal years 1991 -92 and 1992-
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93. The County cannot equir,tbl� c13im that the lack of budgetary
allocation for housing elem *!nt ac?.ivities relieved it from its
duties when Madera Countv w,_.s not Entitled to any reimbursement
monies.
In 1992, Madera County entered into a contract with the State
Department of Health Services (DHS) whereby the County would receive
A
funding for its County Medica. Services Program (CMSP). (CT 1084).
In exchange for CMSP funding, the County agreed to waive any claim
for reimbursement of certain state - mandated local programs during
fiscal years 1991 -92 and L992 -9:. (Id.) Chapter 1143/80 "Regional
Housing Needs" was listed � -s one of those programs for which
participating counties waived reimbursement. (CT 1085).
Because of Madera County's receipt of DHS funding for its CMSP
program, "no money was paid to reimburse Madera County in the Fiscal
Year 1991 -92 pursuant to Madera 3ounty's reimbursement request made
under Chapter 1143/80 (revLsod 9 >9.)." (CT 1083) . Madera County
cannot now claim it was exempt from its housing element obligations
due to lack of funds when it was nor entitled to any reimbursement
funding.
IV. THERE WERE NO TRIABLE ISSUES OF MATERIAL FACTS PRESENTED.
In reviewing the granting of summary judgment, the appellate
court employs a three -step analysis:
1. identify the issues framed by the pleadings;
2. determine whether thc, movant has established facts
sufficient to neg3t.e opponent's claim and to
support a judgment �% in -'s favor; and
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3. determine whether therE,'s any triable issues of material
fact.
Chevron U.S.A. v. Superior court (1992) 4 Cal.App.4th 544, 547, 5
Ca1.Rptr.2d 674, 677.
A. The Issues Framed By The Pleadings Were Narrow.
The first and princ.ipa. cause of action of the petition for
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writ of mandate alleges t:-iat the County failed to adopt and
implement a legally sufficient housing element. For summary
judgment purposes, the Lssue before the trial court and for the
reviewing court is whether the housing element adopted substantially
complies with state housing aw. In this regard, the County admitted
all of the material fa(:ts underlying respondents cause of
action.5 /(CT 1004 -05)
B. The Court Did Not Need To Look Beyond The Housing Element i
And HCD's Findings To Determine Whether The Housing
Element Was Legally Adequate.
Because there were no materia;_ facts in dispute as to whether
the housing element substantially complied with state law, the
question of whether a general plan element is adequate is
essentially a question of f }a Garat v. City of Riverside (1991) 2
Cal.App.4th 259, 292 -93, s Ca1.Rptr.2d 504, 524 -25; Camp v.
I
Mendocino County Board of,.--Supervisors (1981) 123 Cal.App.3d 334,
357, 362, 176 Cal.Rptr. 62C.P 635, 638; Kings County Farm Bureau v.
City of Hanford (1990) 22" 'al.App.3d 692, 270 Cal.Rptr. 650, 676
(citing Twain Harte Homeowners_ Assn. v. County of Tuolumne (1982)
138 Cal.App.3d 664, 674, 18: Ca1.Rptr. 233, 2.37; Buena Vista Garden
5. The County admitted undisputed fact numbers 1 through 5.
Undisputed fact number 6 ( tti,jt petitioners exhausted administrative
remedies) was disputed bat t Ls r,-)+_ a subject of this appeal. (CT
1005 -06) . The County furthe,i res,or.de.d with a separate statement of
additional f ict , wh ch �r =t =n det3 1 infra.
1 Apartments_ Assn. v. City of .5_7n__C_l, ego Planning Dept_ (1985) 175
2 Cal.App.3d 289, 298, 220 Cal.Rptr, '_Y2, 736; Concerned Citizens of
3 Calaveras County v. Board of- SuperV_isors (1985) 166 Cal.App.3d 90,
4 96, 212 Cal.Rptr. 273, 2 " , In the leading case of Camp v.
5 Mendocino County Board of Supervisors, the court stated, in response
6 to the County's argument that it was deprived of a trial op the
7 merits when the trial court found its general plan out of compliance
8 at a writ of mandamus hearin <a,
9 In the first place, the only substantive issue tendered in each
of the two "special proceedings" in mandamus was whether the
10 Mendocino County General Plan was valid for compliance with the
requirements of [Government Code] section 65302. That issue
11 was joined in the answers filed by the County before the three -
way hearing was conducted. Its resolution required the trial
12 court to receive the plan in evidence, to examine and interpret
it in light of the requirements of the statute, and to decide
13 a question of law without resort to extrinsic evidence. In
these circumstances, the hearing itself was the "trial" of each
14 of the special proceedings in mandamus on the merits. ... We
have already seen that the injunctive relief later ordered was
15 remedial in each proceeding and ancillary to it. The court
properly ordered it without awaiting a "trial on the merits"
16 which had already occurred
17 Camp, supra, at 123 Cal.App.'3(- 357, L76 Cal.Rptr. at 635. Thus, the
18 court was entitled to render a decision on the adequacy of the
19 housing element based on the element itself, interpreted in light of
20 the statutes, case law, and BCD's advisory findings.
21
C.- A Material Fact Must Relate To A Claim Or Defense
22 In the Pleadings And Is Essential To the Judgment.
23 The presence or absence E triable issues of fact is determined
24 by scrutiny of supporting affidavits of the moving party. Not every
25 disputed fact precludes a summary j.idgment. The disputed fact :rust
26 be material as to the part,.c,1a4 claim or defense at issue in the
27 pleadings and is essential : the jdgment. See Pettus v. Stan and
28 Cabinet Works (1967) 249 + -'a�i r,4, 66, 57 Cal.Rptr. 207, 210,
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Burton v. Security Pacific National Bank (1988) 197 Cal.App.3d 972,
976, 243 Cal.Rptr. 277, 279, ro determine what facts are essential
to the judgment, a reviewing court must examine the substantive law
regarding the various causes of action or defenses pleaded. Joseph
E. DiLoreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 156, 1
Cal.Rptr.2d 636, 640. Since a :summary judgment motion functions to
"go behind" the pleadings to flesh out all triable issues of fact,
an opposing party cannot seek tc avoid a motion for summary judgment
by raising a triable issue of fact that was not pleaded and the
moving party is not required to address it. Id. at 159, at 642;
Nakashima, (1991) , 231 Cal.App.3d 367, 382, 282 Cal.Rptr. 508, 516.
D. The County's Proffered "Disputed" Material Facts
Were Questions of Law or Were Immaterial.
Appellant's "Statement of Undisputed and Disputed Facts in
Opposition to Motion for Summery Judgment" presented five
"additional material facts 7 dispute." However, they were either
not facts, immaterial or not ir dispute.` -"(CT 1224 -25)
i
Disputed fact number posits that the obligation to comply !
with Gov. Code § 65580 was suspended is a legal conclusion to be
resolved by the court in the first instance as explained supra.
Disputed fact number o asserts that the County revised its
housing-element to respond t:) the HCD requirements which relies on
the Leonard Garoupa declaration is immaterial. Paragraph 4 states
that the County's planning Department "prepared" revisions to the
housing element rejected by HCD, 'he disputed contention that in
April, 1993, three months after the Petition for Writ of Mandate was
6. Respondents disputed th,�:;e contentions in their Reply
Memorandum of Points and Authoriti {_,s in Support of Cross- Motion for
Summary Judgment, and objected to them on the ground that they were
inadmissible due to lack )f * )11rdat . cn and irrelevance. I CT 1224-25'j
I filed, revisions :,sere preparel to respond to HCD's criticisms is not
2 a relevant or material fact Phi; fact, even if true, is simply
3 irrelevant to whether the - 'OLnt1 S housing element, which was
4 adopted by the Board of Supervisors on September 8, 1992 and which
5 was in effect at the time of t1he summary judgment hearing, complied
6 with state law. The proposed revisions attached to Leonard
A
7 Garoupa's declaration were subject. to further revisions based on III
8 future public input, local agencies' comments, planning commission
9 recommendations and board of supervisors' approval and adoption as II',
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10 per Government Code Sections 65103, 65351 and 65356, respectively.
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11 Until all of those steps were taken, the unofficial proposed
12 revisions of the county planning department remained exactly that.2r
13 To the extent that the Count,, sought to introduce the revisions as
14 an affirmative defense, it mist be pleaded which it was not.
15 Disputed material fact (,.umber is altogether irrelevant. Even
16 if true, the number of low an: moderate income subdivisions approved
17 from 1983 through 1993 is merel} background information that has no
18 bearing on the legal adequac, of the adopted housing element which
19 is prospective in its effect.
20 Disputed facts numbers and 5 refers to an agreement between
21 the City and County of Madera for the provision of sewer services
22 and the assertion that the same car accommodate 1,860 residences in
23 Parksdale. These facts, ever- if true, do not render the housing
24 element valid. They were not included in the adopted housing
25
26
27 7. In any event, they pi p ose,-1 r_-evisions to the housing element
were subsequently deternin, ,.o .)e legally inadequate by HCD.
28 Indeed, the state's third stet noncompliance was much more
pointed in its criti •is �)
1
1
1 element and therefore, the ;.,,,r,E ot..ections that apply to dispu --ed
2 fact number 2 applies here.
3
4 V. THERE BEING NO TRIABLE ISSUES OF FACT, SUMMARY JUDGMENT WAS
APPROPRIATE BECAUSE RESPONDENTS WERE ENTITLED TO JUDGMENT AS A
5 MATTER OF LAW.
6 A. Government Code § 65580 Et Seq. Should Be Liberally
Construed To Achieve Its Low Income Housing Purpose.
7
To facilitate the foregoing low and moderate income housing
8
purposes of 5565580, et sec . , the court should liberally construe
9
the statute and interpret it in a manner that discourages attempted
10
evasions. Westinghouse Electric Corp. v. Pacific Gas & Electric Co.
11
(1964) 326 F.2d 575, 579. I' 1s the policy of the law to liberally
12
construe remedial statutes designed to protect persons within their
13
purview. Kaslabage v. Wes-- Kern _County Water District (1978)
14
84Cal.App.3d 529, 538, 148 Ca— Rptr, 729, 734. Williams v. Mariposa
15
County United School District (1978) 82 Cal. *App.3d 843, 147
16
Cal.Rptr. 452, 457. Remedia statutes must be liberally construed
17
to advance their clear purposes. Fitch v. Pacific Fidelity Life
18
Ins. Co. (1975) 54 Cal.App.30 140, 148 126 Ca1.Rptr. 445, 454.
19
B. The County Had A Clear Duty To Adopt A Housing Element
20 That Substantially Complies With State Housing Laws.
21 The housing element =,tat.utes set forth a mandatory and
22 comprehensive obligation th,At all localities must follow. See
23 §§ 65580(a) & (b) and 65581( -) & (t). Section 65583, which details
24 the contents of housing - Iement�, is clear, affirmative and
25 mandatory. It provides that the housing element shall, among otter
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26 things, identify adequate hc,si!r(j E: tes and make adequate provi =:on
27 for all economic seglr,ents o" t _ -) lnity. the statute then sta-es
28
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that "the element shal_1 c )nt i ,3_11 of the following", arid lists the
contents for each component Id..
As the court declared i�-i Camp v. Mendocino County Board of
Supervisors, supra, 123 C'a l -%pf . 3d 334:
If the plan adopted for it does not reflect substantial
compliance with [all of the requirements of state law), the
Board and other responsible agencies of the County have failed
in the "performance of in act which the law specially enjcfins."
Id. at 349. In this regard, the court defined "substantial
compliance" as:
" 'actual compliance in respect to the substance essential to
every reasonable objective of the statute,' as distinguished
from 'mere technical imperfections of form. "'
Id. at 348.1'
Thus, a valid housing element must substantially comply with
each and every provision of § 65583. Localities are not free to
pick and choose the requirements that they will satisfy.
C. HCD Twice Found that the County's Housing Element Does Not
Substantially Comply with State Law.
The initial draft housing element was prepared and submitted by
the County to HCD on or about May J.5, 1992. Upon a careful review,
HCD found the draft document y_o be deficient, and specified the
areas that needed expansion ind correction. Its letter dated June
29, 1992, commented:
In particular, the element should include definitions of
the various residential zoning categories and describe
their relationship to land use categories in the Land Use
element; should demonstrate that the County has adequate
and suitable sites to accommodate the County's share of
the regional housing need by income level; and should
establish quantified rbjectives for the development,
8. Moreover, when ena:ting the statutes setting forth the
procedure for trial court -ev,ew of housing elements, the
legislature declared its .nt� O than "substantial compliance" shculd
be given the same meanie ,_; a_: g i ;en :)y the Camp court. Stats. 1 34,
C. 1009, C� 44 (F,E55S "'` ,: i t =''.4, c. 1039, 5 12
(565754).
1 rehabilitation and conserva*_ion of housing over the
planning period.
2
(CT 754 -55)
3
On September 8, 1992, the County adopted the housing element
4
challenged in this action. Upon review, HCD found the updated
5
housing element to be inadequate and identified many of the same
6 ,
deficiencies that were in need of amplification and correction in
7
the original draft. Most sianificantly, HCD pointed to its failure
8
to inventory suitable sites lot new construction.9'
9
The element . . . still needs certain revisions to bring
10 it into compliance with State housing element law (Article
10.6 of the Government Code). In particular, the element
11 should demonstrate that the County has adequate and
suitable sites to accommodate the County's share of the
12 regional. housing need by income level.
13
(CT 765)
14
D. HCD's Administrative Findings Of Noncompliance Are
15 Entitled To Great Weight,,
16 Administrative const.ruc +i.on of a statute, particularly when it
17 originates with those charged with implementation of the statutory
18 machinery, is entitled to grea, weight. Gay Law Students Assn. v.
19 Pacific Tel. & Tel. Co. ( L971 -+) 24 Cal.3d 458, 491, 156 Cal.Rptr. 14,
20 34; DeGiorgio Fruit Corp. v_.___ qR .._of Employment (1961) 56 Cal.2d
21 54, 61 -62, 13 Cal.Rptr. 663,567 DeYoung v. City of San Diego (1983)
22 147 Cal.App.3d 11, 18, 194 'i..Rptr. 722, 726.
23
24
25
9. It should be noted that in reviewing the further revisions
26 to the housing element sutmitted on April 9, 1993, HCD again
determined it to be legally inadequate for identical reasons, to
27 wit: inadequate assessment o1 suitable sites and housing at risk of
conversion, and inadequate f:; -;gramr action to support adequate sites
28 and to promote fair hour:ncrj
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This is particularly rup-� when the legislature and other
interested parties have .c.7jcg accl.iiesced in the administrative
interpretation. Lute v. Governing_ Board (1988) 202 Cal.App.3d
1177,1183, 249 Cal.Rptr. 16: 164; Anderson v. San Francisco Rent
Stabilization & Arbitration (.'.987) 192 Cal.App.3d 1336, 1343,
237 Cal.Rptr. 894, 898. The legislature is presumed to be aware of
• i
a long- standing administrativ=_ interpretation and /or practice; if it
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makes no attempt to modify the administrative agency's
interpretation of a statute, there is strong indication that the
administrative practice is c(::)nsistent with legislative intent. Napa
Valley Educator's Assn. v. Napa Valley Unified School Dist. (1987)
194 Cal.App.3d 243, 252, 20) 'a1.Rptr. 395, 400; Horn v. Swoap
(1974) 41 Cal.App.3d 375, 38� 116 Cal.Rptr. 113, 117. "Under theses
circumstances, the administrate %e practice will be upheld `unless it
is clearly erroneous or unauthorized'." Steelgard. Inc. v. Jannsen
(1985) 171 Cal.App.3d 79 88, ?17 Cal.Rptr. 152, 159 (italics in
original) .
HCD is the principal state administrative agency for housing.
It has the primary responsibility for developing and implementing
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housing policies. Health & Safety Code § 50152. Respecting housing
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elements, the agency is -authorized to promulgate guidelines
interpreting §§ 65580 et seq., ahi(-h the courts should consider in
applying the statutes. Secti)n 565585(a) ; Camp, supra, 123 Cal.App.
334, 351, 176 Cal.Rptr. 620 631.
To the extent that HCD's determinations are reasonably support-
ed by the record, this court s ,)bl.:..jed to accord great deference to
the agency's technical sr:..1' ind expertise, administrative
interpretation of statutory req)ir- enents and administrative review
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findings. See, Housing Development Co. v. Hoschler (1978) 46
Cal.App.3d 379, 386, 149 Cal.,F.ptr 400, 404; Thorton v. Carlson
(1992) 4 Cal.App.4th 1249, 1258, 6 Cal.Rptr. 375, 380; Banning
Teachers Assoc., CTA /NEA v. Public Employment Relation Bd. (1988) 46
Cal.3d 1262, 1269; Mission community Hospital v. Kizer (1993) 13
Cal.App.4th 1683, 1691, 17 (al .Rptr.2d 303, 309.
E. The County's Housing Element Did Not Substantially Comply
With Gov. Code 5 65580 Et. Seq. As A Matter Of Law.
Gov. Code § 65583 provides that a housing element must consist
of three major components: An analysis of needs, resources and
constraints (§65583(a)); goa:.s, policies and quantified objectives
in correlation to the identif Led needs ( §65583 (b) ) ; and a program of
actions ( §65583(c)). The thrust of HCD's criticism of the County's
housing needs analysis is -hat, it ignores two key statutorily
mandated factors. It does nit quantify and examine: (1) an
inventory of developable J.ind and its inter - relationship with
zoning, public facilities and services and (2) assisted housing at
risk of conversion. As a result of these omissions and the
inadequacy of information provided in the needs assessment portion
of the document, there was no analytical basis for the program of
actions' section of the housing element as mandated by Gov. Code
§ 65583(c).
1. The Housing Element Failed to Adequately Identify
Suitable Sites and to Set Forth a Sufficient Program
of Actions for Housing Development.
The fundamental leria 1 inadequacy of the housing element is
its failure to identify adegl.ato� s:..tes for low- and very -low income
housing as required
by Giver n -if�nt_.
-_ )de §§
65583(a) (1)
and (c) �1) .
The land
inventory
of "su.taole
:;0 :es"
required by
(a) (1) is
critical
to analyze
the resi enl.ia.
joldinq
capacity of
a community
1 and indicates both the problr,ms and possibilities for new housing.
2 Thus, the inventory must indicate the size, general plan
3 designation, zoning, housing types possible, development status, and
4 availability of key public facilities and services (water, sewer,
5 streets, police, fire, schools, employment, transportation, etc.)
6 In rejecting its revised lousing element, HCD advised Madera
7 County as follows:
8 [t]he element should also identify the vacant parcels by
zoning designation, include the acre unit capacity of the
9 vacant land for each zoning designation, and the total
unit facility capacity available or projected to be
10 available during the planning period. For example, La
Vina and Parkside (sic]"a areas have, respectively, 4 and
11 40 acres designated multifamily; however, the element does
not describe the amount of vacant multifamily land,
12 described whether any of these sites are zoned up to 17
units per acre, or discuss the sewer and water capacities
13 available. Without this information, it is not clear
whether sites exist to accommodate the County's share of
14 the regional housing need for lower - income households.
The above analysis should concentrate on those areas where
15 there is a need for housing for lower - income households.
For example, according to element, while there is sewer
16 and water in the resort/ retirement Oakhurst area, there
are few employment opportunities there and minimal need
17 for housing for lower - income households, most of whom are
employed. on the valley f1cor.
18
(CT 767)
19
i) Insufficient Number of Suitable
20 Sites Were Identified.
21 The housing element claims that there are 5,230 plus vacant
22 subdivision lots. However, it concedes that "few are available" for
23 affordable housing development.. (CT 224, 1 3) The first and
24 foremost reason is that "(djue to the rural nature of Madera County
25 and the low density of development. many subdivision lots and all
26 other potential residentia: sites do not have community sewer or
27 water services." (CT 10 , 311-12) Indeed, the docu;-,ent
28 -- _ - - -- _ — - - -- - - -- - - -- -- -- - -- - — — -- - --
10. The correct na:ie l ar-k:;dale.
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admits that but for the urb in r ir; is o(_ the Cities of Madera .r: 1
Chowchilla, it is virtuall °y itupossihle for developers to buE
affordable housing anywhere -1se. Cl' 228, � 7; 238, � 10) Anot -,er
reason is the land use Fontro s ( P- ptoyed by Madera County. :is
zoning ordinance requires minimum 1( >t sizes of 1 acre throughout the
County excepting central Oakhurst, Bass Lake and the urban frig7e of
the City of Madera. However, *?very those areas that are zoned for
higher density with minimum lot size reduced from 10,000 to 6,000
square feet do not support the development of affordable housing
because the land costs in those "urban" areas are much higher. (CT
224, 1 4; 307 -08) Yet anoth( =r reason is that available parcels are
scattered, noncontiguous and under Jifferent ownerships rendering it
difficult to assemble land for large -scale housing tract develop-
ment. Finally, the lack of [:aublic services and limited employment
opportunities in the rural areas makes them unsuitable as potential
sites for affordable hous.in,i (t ": 109; 308, 1 2,)
ii) Housing Element on Its Face Showed
that There Were Insufficient Suitable
sites.
The housing element co-itends that there are a total of 644
acres available for housing
dere1opnient. (Cl' 217. 1 8) The County
confuses land availabilit;
Frith suitable sites for housing
development. A review of the
un._t capacity of sites as listed in the
revised housing element dis,:loses
as follows:
Oakhurst (250 acres)
- There was no information on water
services. The present
sewer plant operates with " moderate i
problems." The treatment-_ plant r,,ust be upgraded to accommodate
increase capacity i .-i t,
e ' utt..i ,, .
Raymond ( 50 acres) - l c
� .* ior, or, sewer services repor`.e:? .
L,a V i na ( 4 acres) - E;.;j,
it c n f - - pt i c tanks and seepage _ -.: is
is required for fut.-Irf
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North Fork (30 acres) - Sewer plant is close to capacity.
Future growth requires additional expansion of plant. No
information reported on water service.
Ripperdan (6 acres) - Minor problems with seepage pits
presently exist. Plans =ire underway to increase capacity of
seepage pits.
Parksdale (40 acres) - No problem with water service reported
but there is no information on whether there is sufficient
capacity to accommodate the 53 vacant parcels in the futurg. No
information reported on ±.he availability of sewer service.
Fairmead (7 acres) - Buildout of area requires additional
water services. No information reported on sewer service.
Trigo (30 acres), Price ',6 acres), and Ahwanee (5 acres) - No
community water or sewer services available.
City of Chowchilla(Sphere of Influence) (30 acres) - Community
water and sewer services are available at a 50% surcharge.
(However, the fact that Chowchilla is willing to extend
services only indicates availability of services.) No
information is provided indicating that the water mains or
sewer lines are available to access the services.
City of Madera(Sphere of Influence) (186 acres) - The County
states that community water and sewer services are available.
However, the housing element failed to identify any policy or
agreement with the City of Madera to furnish the services,
information which HCD specifically requested in its initial
letter of noncompliance )n ,:Tune 29, 1992.11 (CT 757)
The proffered figures ar9 even more suspect since the housing
element also fails to identif, speci.f.ic parcels in the area by area
description; fails to disclos,-= streets and roads; fails to examine
whether the inventoried sites for affordable housing are located
near employment, transport atirn and other public services; and fails
to conduct a comparative analysis of developed density and present
zoning designations of the v,irlous zoning designations of land in
Madera County, generally, ano tre sites that have been inventoried
for housing development, spe,.xtic,3ly.
11. Indeed, not unt.1 t: fie -Npr l 9, 1993 draft housing element ;
revisions is there any inciiN�at,cn c. an agreement between the City
and County of Madera and t t en it was on! y for the provision of
sewer services for- r_},p
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Thus; based on what ovided, it was impossible to
determine whether there wei an,, ;.;itable sites for affordable
housing. The housing element was s :-ply devoid of any supporting
information as to how the Count,✓ arrived at the figures of 644 acres
and 5230 lots, respectively. Whit obvious from the information
provided is that the housi.nq -dement lacked the clear and complete
land inventory necessary to determine, ghat programs the County needs
to make adequate provision for t.t�e housing needs of its low and very
low income residents.
iii. Proposed Program of Actions to Identify
Suitable Sites Was Inadequate.
Section 65583(c) (1) requires the housing program to make
available specific sites with appropriate zoning and infrastructure
to facilitate the development of multifamily rental housing,
manufactured housing and emergency shelters sufficient to meet the
low and very low income housliq production needs identified in the
needs analysis of the housing elemer,t. Unless a sufficient number
of properly zoned sites are a,;aiLable and served by infrastructure,
the community cannot provide rousinq opportunities for all economic
segments.
Since the housing element revealed that there were not enough
sites, additional locations snould be made available through
annexation, changes in land use, density increases, and provision
of needed infrastructure. 'he County must also use its public
powers to make these sites av- ilible and to provide incentives when
needed to promote development of hc�.ising for all income groups.
r
Accordincgly, HCD admen, r :�,ied it ire order to comply with state
housing element law it she 1 i 3 lop programs which serve to
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identify an adequate numbc-r c,f s. .unable sites for affordable
housing. (CT 762 -64) Otherwise, HCD instructed,
(i]f the revised inventory does not demonstrate adequate
sites to accommodate the new construction need for all
income groups, the element, pursuant to the recent
amendment, should identify sites that permit owner -occu-
pied and rental multi fair i 1 }.• uses by right.
(CT 764)
Finally, inasmuch as the county concedes that the Cities of
Chowchilla and Madera play a critical role in ensuring community
services for practically all of the vacant sites inventoried, the
housing element had to set forth policies and programs to establish
a working relationship with tt ose localities to secure the requisite
water and sewer services for the development of affordable housing.
2. The Needs Assessment for Assisted Housing at Risk of
Conversion Was Legally Inadequate, and No Program of
Action Was Proposed.
The housing element's assessment of needs of assisted housing
at risk of conversion reflect;; facial noncompliance with state law.
Section 65583(a)(8) sets fort-i a step -by -step analysis that must be
undertaken by the County .n ._s preparation of this analysis in the
housing element, to wit: c:cst estimates of replacement housing,
identification of private nonprofit with management capability, and
assessment of available federal., state and local financing. Yet the
analysis in the housing element merely states that the County was
advised by the Farmer's H()ITe Administration that no government
assisted housing was at risk of conversion to market rate rent.
(CT 239)
HCD's letter of Februar, 2 1533 stated that:
The element now identif,.es on_ Farmer's Home project, Valley
Oaks, at risk of conversion. - !though Farmer's Home Adminis-
tration staff has stated tr.at -�o notice of conversion has been
recei,.-ed fcr Val ley ~?nts, it may still be eligible
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to convert to market rate dur: n,3 the planning period unless the
project has received an FmHA ;Farmer's Home Administration]
loan subsequent to 1980. Therefore, the element should address
all the statutory requirements. Please reference pages 15 and
16 of our technical assistance paper, Housing Element Analysis.
The element should include analysis of any other units, as
described in the statute, that might be eligible to convert to
market rate. If there are no such units the element should
describe analysis used to derive this conclusion. For example,
according to the California Debt Advisory Committee reporr on
bond issues, there are no bond financed units in the
unincorporated County of Mader,9i.
(CT 768)
Section 65583(c)(6) directs the County to utilize its authority
and resources to develop an action program to prevent government-
assisted housing development from converting to fair market rental
housing. As described earlier, the housing element's needs
assessment was flawed in the first instance, i.e., it wrongly
assumed that no housing devel>pment is at risk. Thus, the housing
element wrongly failed to propose a program action to mitigate the
possibility of an impending conversion of the County's assisted
housing.
In examining the language of the housing element, the statutory
requirements, and HCD'S comment:,, 3- is clear that , on its face,
the housing element falls tar short of meeting the statutory
mandates.
3. The Housing Element Violates § 65583(c) in That the
Housing Element Fails to Set Forth a Sufficient
Equal Housing opportunities Program.
Section 65583(c)(5) requires tfat the housing element include
a program of action to "[promote housing opportunities for all
persons regardless of race, rf :�,a.gion, sex, marital status, ancestry,
national origin, or color-."{ The 'cjuntyls implementing measure,
1 program 7.0, states that the c:oun ±-y will provide information and
2 referrals on housing discrimination complaints. (CT 21)
3 In its June 29, 1992 comments., HCD found that the program did
4 not substantially comply wits state law. It opined that "[a] fair
5 housing program should in -lode an information dissemination
6 component to educate the public concerning the services provided.
7 Program 7.0, which is currently in place, should be expanded to
8 include actions the County will take to educate the public and to
9 publicize the referral serv..ce provided." HCD suggested ways in
10 which this dissemination component could be achieved. ( CT 761 ) HCD
11 reiterated this comment in its February 2, 1993 letter. (CT 768)
12 The County's barebone program to provide information about
13 discrimination does not contain a plan to educate the public about
14 fair housing laws or to inform them that this information and
15 referral service exists. Further, it does absolutely nothing to
16 affirmatively promote equal iousinci opportunities, as the statute
17 requires. Its program merely puts the burden of promoting fair
18 housing and eliminating discrimination on other agencies and
19 individuals, and as such , does not comply with state law.(CT 155)
20 Information dissemination and referral service do not increase
21 opportunities for housing fc::,r 3isadvantaged persons or otherwise
22 eliminate discrimination. HCI) thus further provided the County with
23 instructions on how to remedy this deficit in its housing element.
24 (CT 769)
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I
I VI. PETITIONERS WERE ENTITLED TO INJUNCTIVE RELIEF ONCE THE COURT
DETERMINED THAT THE HOUSING ELEMENT WAS LEGALLY INADEQUATE
2
A. Injunctive Relief Must be Ordered Once a Housing Element
3 is Found Inadequate
4 Once the court found *he County's element to be legally
5 inadequate, it was required to order the relief set forth in
6 Government Code Sections § 65754 and 65755. Those sections required
7 the court to order the County .o bring its housing element into
8 compliance and refrain from approving developments that would
9 prevent the County from adopting an adequate housing element. See,
10 Committee for Responsible PlanniDq _v. City of Indian Wells (1989)
11 209 Cal.App.3d 1005, 1013, 21)" Cal.Rptr. 635, 639.
12 To hold otherwise would render parts of the statutory scheme
13 surplusage. See, DeYoung v_._City of San Diego (1983) 147 Cal.App.3d
14 11, 18, 194 Cal.Rptr. 722, 6. It the legislature had intended
15 that local governments be excused from the clear injunctive remedies
16 it created because of good faith efforts to comply with the law, it
17 would not have included provisions lirecting localities to submit
18 post -order revisions to HCD )' 65754) or directing courts to order
19 injunctive relief until the local ities reach compliance (§
20 65755(a)). The legislative scheme c.i.early contemplates that cities
21 and counties will. continue to revise their housing elements after a
22 court has found them out of c�:mp.iance, and after injunctive relief
23 has been ordered.
24 Moreover, this interpretation is required to effectuate the
25 legislative purpose of housing Element law. A locality's general
26 plan is the constitutio�i , -,j.. all future development in that
27 jurisdiction. O'Loane v. D'J irr_e, :3upra, 231 Cal.App.2d 774, 782-
28 + 83, 42 Cal.Rptr. 283, 28c. 1n:e zoning and other land use
! decisions must be consist, i i* 1 the general plan, when a
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locality's plan is invalid, virtually all of its land use actions
will be invalid when taken. See, e.g., Cal. Gov. Code 5 65860(x)
(zoning must be consistent. with plan); Sierra Club v. Board of
Supervisors (1981) 126 Cal.App.3d f98, 704, 179 Cal.Rptr. 261, 264
(same); Cal. Health & Saf_etti, Code 4 33324 (redevelopment plan must
be consistent with general plan); City of Carmel -by- the -S!2a v.
Board of Supervisors (1982) 137 Cal.App.3d 964, 187 Cal.Rptr. 379
(use permit void when plan inadequate); Kings County Farm Bureau v.
City of Hanford (1990) 221 Cal.App.3d 692 270 Cal.Rptr. 650, as
modified on denial of rehearing, 222 Cal.App.3d 516a (1990)
(building permit invalid) ; Save El Assoc. v. Days (1977) 74
Cal.App.3d 64 67, 141 Cal.Rptr. 282,284 (subdivision approval);
Guardians of Turlock's Integ ity_v. Turlock City Council (1983) 149
Cal.App.3d 584, 593 197 Cal.Rptr. 303, 308 (environmental impact
report). Thus, in ordering njanctive relief, the court was wisely
preventing the County from rntking land use decisions which would be
void, and which would subject t."Zose later decisions to legal
challenge.
B. Injunctive Relief Was Necessary and Appropriate in This
Case
The County argues that. injunctive relief was inappropriate
since, at the time of the hearing, it was trying to comply with
housing element law. Appellant's opening Brief (First Amended) at
30 -31. It invokes the prim: .-iple that a court should not order a
writ of mandate if, at the "'_imE" of the hearing, the respondent has
actually complied with the ;.jw or 4hen the remedy would be useless.
Bruce v. Gregory (1967) 6-5 <i1 2.3 �,E�6, 670, 56 Cal.Rptr. 265, 263.
Since t;le housing elerr nt di(3 not comply with the law at the
time of the hearing, the r- i i.(�f - quested by the respondents had
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clearly not become moot. Moreover, this case is not like Bruce,
where the respondent's actual compliance with the law after the
petition and answer werE' filet made only conditional injunctive
relief necessary.
Here, injunctive relief das necessary to ensure that the County
acted expeditiously to piar, for the development of affordable
housing. Since the court determined at the hearing that the
fundamental deficiency of the County's housing element was its
failure to identify sufficient appropriate multifamily sites with
the water and sewer capacity to meet: the County's assigned share of
the affordable housing need, the court crafted the order to enjoin
development at two sites that were :identified in the housing element
as suitable for affordable housi..ng until the County could
demonstrate that sufficient sites were available to accommodate that
need. (CT 1421 -26)
Moreover, despite As protestations, the County's actions
display why the court order was necessary. The County did not
actually bring its housing element up to a standard meeting HCD's
approval until approximately September, 1993, four months after the
summary judgment hearing awId just: weeks before a modified order
granting countywide injunctivE relief was to go into effect.
Without the threat of broacer injunctive relief, it could have
delayed even longer with
1 CONCLUSION
2 The judgment of the tri +1 :our- should be affirmed. There are
3 no triable issues of fact pr esente i since the County's proffered
4 triable issues of fact are ii- elevant and immaterial, and therefore
5 should be duly ignored by the court. Further, the Budget Act of 1992
6 is inapplicable in the Lnst311t case since the County's housing
A
7 element obligations arose prior to fiscal year 1992 -93, and it
8 otherwise waived any legal laim for reimbursement for mandated
9 activities by participating in the County Health Services Fund.
10 Still further, the County admitted X311 material facts constituting
11 the requisite elements of the cause of action set forth in the
12 petition for writ of mandate which supported a judgment in favor of
13 petitioners as a matter of law -
14 In the final analysis, t-he County got exactly what it wanted
15 all along, to wit: a H( ".:)- approved housing element mooting
16 petitioners' lawsuit and i °vok:inq a rebuttable presumption of
17 validity to any future leq,il challenge. Unfortunately, it was
18 achieved at the expense of lawsi -it and it. would not have been
19 possible but for the guidance, ind idicious handling of the matter
20 by the trial court.
21 DATED: August 30, 1994 CALIFORNIA RURAL LEGAL ASSISTANCE
22 ;rx
23 By:
BALDWIN S. MOY
24 Attorneys for Responden s
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UA1,1)WIt4 t;I)Y
CAILIFO"P14'1 i i- ',1 :,t'.Gi',L AS,. i
L2
Fla S; t. r' ?In I t E vc -nuc,
Madera, Ca 6ic-
(209) 674
MICHAEL RAWSON
SUSAN SAYLOR
HOUSING ELEMENT ENFORCEMENT PROJECT
OF THE LEGAL AID SOCIETY OF A1,AMEDA COUNTY
1440 Broadway, Suite 700
Oakland, California 94612
(510) 451 -9261
Attorneys for Petitioners
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUN -Y JF MADERA
TANYA HARRIS, MARIA HERNANDEZ, )
TOBIAS HERNANDEZ, TOMAS SALGADO, }
MARTINIANO CONTRERAS MELCHOR, and }
J. SANTANA CONTRERAS, }
Petitioners,
VS.
COUNTY OF MADERA,
ALFRED GINSBURG IN HIS OFFICIAL,
CAPACITY AS CHAIRPERSON OF TH'
MADERA COUNTY BOARD OF
SUPERVISORS; RICK JENSEN, GAI_,
HANHART- MCINTYRE, JESS LOPEZ,
and HARRY BAKER, IN THEIR 1
OFFICIAL CAPACITIES AS THE;
MADERA BOARD OF SUPERVISORS, end j
DOES 1 -20, INCLUSIVE,
Respondents.
p(MIlIT A
No. 49063
(•-------� �
MODIFICATION OF
ORDER
a
[let it I orlf'r
L
r I f o r I -, this 0 u 1 1 , the i1C)1l01_,0j, M,il
3 Thomas, Judge presid i nq , -it an?]
4 Susan Saylor appeared as at t rn y ()r petitioners and Douglas W
5 Nelson appeared as attorney :)r cei-pondents.
6 After full considerat.i n )f t,it! evidence, and the legal
7 authorities submitted by coutse—, ci; well as counsel's oral
8 argument, the Court finds cjo d cause appearing therefor.
9 IT IS ORDERED that respondents:
10 1. Prepare and adopt, within 120 days of the date of this
11 hearing, July 16, 1993, a lecalLy sifficient revised housing
12 element that actually and suhst,intially complies with the
13 requirements of state law a�. pr,)vided in Gov. Code § 65 et s1
14 IT IS FURTHER ORDERED t t a t efl,e(_-tive September 'j,V, 93 93
15 respondents shall:
16 2. Refrain from issuirig building permits for, otherwise
17 approving any construction (_,i deveiopment except housing units
18 affordable to low-income an(-.i ,Dw-income households as defined
19 in Gov. Code 5 65589.5(h) 4 and Health & Safety Code § 50079.5,
20 and except as provided in Gc . --ode § 65755(b), until the County
21 adapts a housing element, which meets the requirements of state
22 law, and which comply in ful with the criteria set forth in Gov.
23 Code S 65583 et seg.; and
24 3. Refrain from granting zoning changes or variances, or
25 subdivision map approval, except as provided in Gov. C6d*_ -,S-
26 65755(b), and except as to housing units affordable to low-income
27 i� and very-low income households as defined in Government Code
28 1
65589.5(h) (2) and Healti cif,- ,ty '-':)de 5 50079.5.
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For r,f till s Order, t h(' iii -11,.
I
I-'lement steal i },c> found ..t 1 ly comply with -,—I iiih,
Code �; 6558o, Ott r rl. unl t rent of IIousinca
Community Development determir, t.t c- f.ler+ent so Complies after
performing the review describ-I ;n (,-,4,vcrnment Code § 65585.
The Court reserves juri,s,iict <)r to modify, amend, or dissolve
this Order upon application b, o thca party.
DATED:
APPROVED AS TO FORM:
DATED:
ITUDG OF THE SUPERIOR COURT
MARK E. THOTMAS, Jam.
+ -OUNTY OF MADERA
DOUGLAS W. NELSON -
Deputy County Counsel
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MAILING LIST
Office of the Clerk
COURT OF APPEAL, FIFTH APPE1,11ATE DISTRICT
2525 Capitol Street
Fresno, CA 93721
SUPREME COURT OF THE STATE OF CALIFORNIA
303 -2nd Street, South Tower
San Francisco, CA 94107 -13'
THE HONORABLE MARK THOMAS
1439 Mercer Street
San Jose, CA 95125
JEFFREY L. KUHN, County Counsel
DOUGLAS W. NELSON, Assistant
COUNTY OF MADERA
Madera County Government Center
209 West Yosemite Avenue
Madera, California 93637
To: Michael G. Colantuono, Esq.
Richards, Watson & Gershon
38th Floor
333 South_Hope Street
Los Angeles, California 90071 - 1469
Telecopier• (213) 626 -0078
Re: Harris v. Counter of Madera, Fifth District Court
of Appeal, Case No. F020495 -- Re
Support quest for Amicus
Dear Mr. Colantuono:
Please name the City /Town of '/C
t
in
he letter brief joining the amicus brief of t e County of Santa
Cruz in this case.
(Signature)
(Da e)
(Name)
(Title)'
(City /Tow�
(Address) f_
(City /State /Zip)
(Telephone Number)
00652