Reznitskiy v. County of Marin ( 2022 )

Filed 6/15/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ALEKSANDR REZNITSKIY et al.,
Plaintiffs and Appellants,
A161813
v.
COUNTY OF MARIN et al., (Marin County
Super. Ct. No. CIV1903573)
Defendants and Respondents.
The Housing Accountability Act (HAA) (Gov. Code, § 65589.5)1 was
enacted 40 years ago as part of broad legislative efforts to address
California’s housing crisis. The statute aims “to significantly increase the
approval and construction of new housing for all economic segments of
California’s communities by meaningfully and effectively curbing the
capability of local governments to deny, reduce the density for, or render
infeasible housing development projects and emergency shelters.” (§ 65589.5,
subd. (a)(2)(K).) As one way to encourage housing construction, the HAA
bars local agencies from denying any proposed “housing development project”
unless the denial is based on objective criteria or the agency finds that the
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts II.C. and II.D.
All further statutory references are to the Government Code unless
1
otherwise noted.
1
project would adversely impact public health or safety. (§ 65589.5,
subd. (j)(1).)
Aleksandr Reznitskiy and Cecily Rogers (plaintiffs) appeal from the
denial of their petition for a writ of administrative mandamus involving their
application to build a nearly 4,000-square-foot single-family home on a
hillside lot in San Anselmo (the project). After concluding that the project
was not subject to the HAA, respondents Marin County and the County of
Marin Board of Supervisors (collectively, the County) denied plaintiffs’
application on several bases, including that the home was outsized compared
to the surrounding neighborhood. Plaintiffs claim that their planned home
qualifies as a “housing development project” under the HAA and that the
County improperly rejected it based on subjective criteria. They also claim
that the County is equitably estopped from arguing that the HAA does not
apply and that, in any case, insufficient evidence supports the County’s
decision.
We conclude that the County lawfully rejected plaintiffs’ application.
In the published portion of this opinion, we address a longstanding question
the Legislature has deliberately left unresolved and hold that the HAA does
not apply to a project to build an individual single-family home. In the
remaining portion of the opinion, we reject plaintiffs’ equitable-estoppel and
insufficient-evidence claims. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In 2016, plaintiffs applied to build a single-family home and accessory
dwelling unit (ADU) totaling 5,145 square feet on a 1.76-acre lot they own in
San Anselmo. The lot is “heavily wooded” and slopes “steeply” upward from a
creek. It has no vehicular access, and the project included a driveway that
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bridged the creek, a “concrete parking deck with an emergency access/
turnaround area,” and a temporary access road to enable construction of the
house and driveway. Plaintiffs also sought a tree-removal permit because the
project proposed removing “[a]pproximately 19 trees . . . classified as either
‘protected’ or ‘heritage’ per the Marin County Development Code.”
After receiving preliminary comments from the planning division of the
County’s Community Development Agency (Agency), plaintiffs revised the
project to remove the ADU and reduce the house’s floor plan to 3,872 square
feet. In February 2019, the planning division issued an administrative
decision approving the project and granting the tree-removal permit. The
decision found that as redesigned, the project was compatible with the
surrounding neighborhood and consistent with the Marin Countywide Plan
and the Marin County Code’s mandatory findings for design review.
The following month, neighbors appealed the planning division’s
decision to the Marin County Planning Commission (Commission). They
argued that the size of the project rendered it incompatible with the
neighborhood, and they provided a survey showing that “[t]he average size of
the nearest 25 residences [was] 1,544 square feet,” significantly smaller than
plaintiffs’ proposed house. The neighbors also argued that the creek would be
negatively affected, questioned the need for a large bridge, and urged that
fewer trees be removed.
Before the Commission hearing on the appeal in May 2019, the
planning division prepared a report recommending that its administrative
decision be upheld. At the hearing, an array of evidence was considered,
including the staff report, project plans, testimony by Reznitskiy, and written
and oral opposition from the public. After several commissioners expressed
3
concern about the project’s scale and environmental impacts, the Commission
unanimously voted to grant the neighbors’ appeal and deny the project.
Plaintiffs appealed the Commission’s decision to the County of Marin
Board of Supervisors (Board). Among other arguments, plaintiffs claimed
that “further downsizing” of the project was unnecessary and that the
project’s denial violated the HAA. The Agency submitted a letter to the
Board recommending that the project’s denial be upheld, now agreeing that
the project was outsized for the neighborhood and would unduly impact the
creek and environment. The letter contended that the HAA applied only to
“large-scale housing projects such as mixed-use, multiple residential unit
projects, transitional and supportive housing,” and the project “[did] not
qualify as [such] a higher density residential project.”
In August 2019, the Board heard plaintiffs’ administrative appeal.
Additional evidence was presented, including the testimony of two of
plaintiffs’ civil engineers and further testimony by neighbors opposed to the
project. One Board supervisor observed that although plaintiffs had “a right
to develop” the property, the project was “not ready for prime time yet” and
“need[ed] to be scaled down and the design refined.” The Board then
unanimously voted to uphold the Commission’s decision denying the project.
The Board also issued a resolution summarizing its reasons for denying
plaintiffs’ appeal. As relevant here, the resolution affirmed that the proposed
residence was oversized and concluded that the HAA did not apply to the
project.
The following month, plaintiffs filed a petition for a writ of
administrative mandamus in the trial court to challenge the County’s denial
of the project. They claimed that the project constituted a “housing
development project” under the HAA and “complie[d] with all applicable
4
objective general plan and zoning standards and criteria, including design
review standards, in effect at the time of the Project application” under
section 65589.5, subdivision (j)(1). Alternatively, plaintiffs argued that even
if the HAA did not apply, the County’s findings were not supported by
substantial evidence. In December 2020, the trial court rejected these
arguments and denied the petition.2
II.
DISCUSSION
A. General Legal Standards
1. Standards of review in administrative writ proceedings
In their petition for a writ of administrative mandamus, plaintiffs
claimed the County prejudicially abused its discretion in denying their
application to build the project. Under Code of Civil Procedure
section 1094.5, subdivision (b), “[a]buse of discretion is established if the
[agency] has not proceeded in the manner required by law, the order or
decision is not supported by the findings, or the findings are not supported by
the evidence.”
In an administrative writ proceeding that, like this one, does not
involve a fundamental vested right, the trial court reviews the agency’s
factual findings for substantial evidence and its legal conclusions de novo.
(Code Civ. Proc., § 1094.5, subd. (c); Schafer v. City of Los Angeles (2015)
237 Cal.App.4th 1250, 1260–1261 (Schafer).) “An appellate court in a case
not involving a fundamental vested right reviews the agency’s decision,
2 The trial court did not enter a separate judgment, but an order
denying a petition for a writ of administrative mandamus is appealable if it
“effectively disposes of the action because no issues remain to be determined.”
(JKH Enterprises, Inc. v. Department of Industrial Relations (2006)
142 Cal.App.4th 1046, 1056.)
5
rather than the trial court’s decision, applying the same standard of review
applicable in the trial court.” (Schafer, at p. 1261.)
2. The HAA
The HAA is part of the Housing Element Law (§ 65580 et seq.), “which
‘set[s] forth in considerable detail a municipality’s obligations to analyze and
quantify the . . . locality’s share of the regional housing need . . . and to adopt
and to submit to California’s Department of Housing and Community
Development [(Department)] a multiyear schedule of actions the local
government is undertaking to meet these needs.’ ” (California Renters Legal
Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820,
834 (CaRLA).) In 1982, the Legislature enacted the HAA, “colloquially
known as the ‘Anti-NIMBY’ (Not-In-My-Back-Yard) law,” to address the
dearth of housing in the state. (Id. at pp. 834–835.) Under section 65589.5,
subdivision (j) (section 65589.5(j))—the provision that plaintiffs contend
applies to the project—“[w]hen a proposed housing development project
complies with applicable, objective general plan, zoning, and subdivision
standards and criteria, including design review standards, in effect at the
time the application was deemed complete,” the local agency cannot
“disapprove the project or . . . impose a condition that the project be
developed at a lower density” unless it finds that (1) the project “would have a
specific, adverse impact upon the public health or safety unless the project is
disapproved or approved upon the condition that the project be developed at a
lower density” and (2) “[t]here is no feasible method to satisfactorily mitigate
or avoid [that] adverse impact, other than disapproval of the housing
development project or the approval of the project upon the condition that it
be developed at a lower density.” (§ 65589.5(j)(1).) A project must be
“deemed consistent, compliant, and in conformity with” applicable standards
6
and criteria “if there is substantial evidence that would allow a reasonable
person to [so] conclude.” (§ 65589.5, subd. (f)(4).)
Since enacting the HAA, the Legislature “has amended the statute
repeatedly in an increasing effort to compel local governments to approve
more housing.” (CaRLA, supra, 68 Cal.App.5th at p. 835.) Of relevance here,
in 1999 the Legislature amended section 65589.5(j) “to narrow the kinds of
policies that could be invoked to defeat an application, adding the italicized
words: ‘When a proposed housing development project complies with
applicable, objective general plan and zoning standards and criteria,’ the
project cannot be denied or reduced in density without the specified health
and safety findings.” (CaRLA, at p. 835.) Thus, under section 65589.5(j) an
agency cannot “use what might be called a ‘subjective’ development ‘policy’
(for example, ‘suitability’)” to avoid making the findings otherwise required to
disapprove a housing development project. (Honchariw v. County of
Stanislaus (2011) 200 Cal.App.4th 1066, 1076–1077 (Honchariw I).)
In 2017, the Legislature made relevant “detailed findings” when it
again amended the HAA. (CaRLA, supra, 68 Cal.App.5th at p. 836.) It found
that “California has a housing supply and affordability crisis of historic
proportions” in which “the absence of meaningful and effective policy reforms
to significantly enhance the approval and supply of housing affordable to
Californians of all income levels is a key factor.” (§ 65589.5, subd. (a)(2)(A)–
(B); Stats. 2017, ch. 378, § 1.5.) It also found that this crisis had worsened
“despite the fact that, for decades, the Legislature has enacted numerous
statutes intended to significantly increase the approval, development, and
affordability of housing for all income levels, including this section,” and that
the legislative intent “to significantly increase the approval and construction
of new housing for all economic segments of California’s communities . . . has
7
not been fulfilled.” (§ 65589.5, subd. (a)(2)(J)–(K); Stats. 2017, ch. 378, § 1.5.)
And finally, it added the following “interpretative gloss” to the statute: “ ‘It is
the policy of the state that [the HAA] should be interpreted and implemented
in a manner to afford the fullest possible weight to the interest of, and the
approval and provision of, housing.’ (§ 65589.5, subd. (a)(2)(L); Stats. 2017,
ch. 378, § 1.5.)” (CaRLA, at p. 836.)
B. A Project To Build One Single-family Home Is Not a “Housing
Development Project” Under the HAA.
The main issue we must resolve is whether plaintiffs’ proposal to build
a single-family home qualified as a “housing development project” and could
not be denied unless the County complied with section 65589.5(j).3 We
independently review issues of statutory interpretation. (California Building
Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032,
1041.) “Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.] We
consider first the words of a statute, as the most reliable indicator of
legislative intent.’ ” (Ibid.) “We give the words their usual and ordinary
meaning [citation], while construing them in light of the statute as a whole
and the statute’s purpose [citation]. . . . ‘If there is no ambiguity in the
language, we presume the Legislature meant what it said and the plain
meaning of the statute governs.’ ” (Pineda v. Willams-Sonoma Stores, Inc.
(2011) 51 Cal.4th 524, 529–530.)
If, however, “the statute’s language is ambiguous or susceptible of more
than one reasonable interpretation,” we “ ‘ “may examine the context in
which the language appears, adopting the construction that best harmonizes
3 Californians for Homeownership, The California Association of
Realtors®, Building Industry–Bay Area, and YIMBY Law were granted leave
to file a brief as amici curiae in support of plaintiffs on this question.
8
the statute internally and with related statutes.” ’ ” (Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1103; People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 192–193; see Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735.) We may also “ ‘ “look to a variety of extrinsic aids,
including the ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, [and] contemporaneous administrative
construction.” ’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 94.) Our focus is
“on the Legislature’s intent when it enacted the statute,” not on “hypothetical
postenactment legislative intent.” (In re Pedro T. (1994) 8 Cal.4th 1041,
1047–1048.)
Subdivision (h) of the HAA provides that “for the purposes of this
section . . . , [¶] . . . [¶] (2) ‘Housing development project’ means a use
consisting of any of the following: [¶] (A) Residential units only. [¶]
(B) Mixed-use developments consisting of residential and nonresidential uses
with at least two-thirds of the square footage designated for residential use.
[¶] (C) Transitional housing or supportive housing.” There is little caselaw
interpreting this statutory definition. In Honchariw I, the Fifth District
Court of Appeal addressed whether a project to build “a single-family
dwelling to ultimately be constructed on each of . . . eight proposed lots” was
a “proposed housing development project” under section 65589.5(j).
(Honchariw I, supra, 200 Cal.App.4th at pp. 1072, 1074.) Honchariw I’s
primary holding was that although other subdivisions of section 65589.5
address affordable housing, subdivision (j) “is not limited to affordable
housing development projects.” (Honchariw I, at pp. 1075, 1077; accord
North Pacifica, LLC v. City of Pacifica (N.D.Cal. 2002) 234 F.Supp.2d 1053,
1057.) The Court of Appeal also stated in passing that since the project
contemplated eight single-family homes, its “anticipated use [was] . . .
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‘[r]esidential units only’ (§ 65589.5, subd. (h)(2)(A)), and the proposed project
[was] therefore a ‘proposed housing development project’ within the meaning
of section 65589.5(j).” (Honchariw I, at p. 1074.) But no decision has
addressed whether a project to build a single residential unit qualifies as a
“housing development project.”
In considering the question, we begin by observing that the statutory
definition is imprecise because it does not describe what a “housing
development project” is. The provision does not explicitly define the words
“housing,” “development,” or “project,” either individually or collectively. (See
§ 65589.5, subd. (h)(2).) Rather, the provision states that the term “means a
use” consisting of one of three types, thus focusing only on the purpose a
project must have to be subject to subdivision (j)’s stricter requirements for
disapproval. (§ 65589.5, subd. (h)(2); Honchariw I, supra, 200 Cal.App.4th at
p. 1074.)
The reason for this focus is explained by the legislative history of
Senate Bill No. 619 (2003–2004 Reg. Sess.) (Senate Bill No. 619), which
added the definition of “housing development project” to the HAA. 4 This part
of the bill was described as “[e]xtend[ing] protections of the anti-NIMBY act
to mixed-use housing developments.” (Sen. Rules Com., Off. of Sen. Floor
4 As originally enacted, the statutory definition provided that “housing
development project” meant “a use consisting of either of the following: [¶]
(A) Residential units only. [¶] (B) Mixed-use developments consisting of
residential and nonresidential uses in which nonresidential uses are limited
to neighborhood commercial uses and to the first floor of buildings that are
two or more stories. As used in this paragraph, ‘neighborhood commercial’
means small-scale general or specialty stores that furnish goods and services
primarily to residents of the neighborhood.” (Stats. 2003, ch. 793, § 3.) The
definition was subsequently amended to add “transitional housing or
supportive housing” as a qualifying use (Stats. 2007, ch. 633, § 4) and to
change the description of a mixed-use development (Stats. 2017, ch. 368, § 1).
10
Analyses, 3d reading analysis of Sen. Bill No. 619, as amended May 27, 2003,
p. 3.)5 While at the time the HAA prevented an agency “from disapproving
an affordable housing development” without making certain findings, the bill
“provide[d] that, in addition to residential-only developments, the protections
of the [HAA would] apply to mixed-use residential developments in which
neighborhood-serving commercial uses occupy the first floor of a building that
is at least two stories.” (Sen. Housing & Community Development Com.,
Rep. on Sen. Bill No. 619, Apr. 4, 2003, p. 3.) Thus, it is apparent that the
purpose of adding the definition was to clarify that mixed-use developments
are subject to the HAA, not to define comprehensively the term “housing
development project.”
This matters because unless we know the full meaning of “housing
development project,” it is difficult to evaluate the parties’ central dispute:
whether the plural term “residential units” includes the singular “residential
unit.” The County claims that we “need look no further than the plain text”
of section 65589.5, subdivision (h)(2)(A), “which uses the words ‘residential
units,’ in the plural form,” to conclude that an individual single-family house
is excluded. This argument has some force, as the ordinary meaning of
“residential units” is more than one residential unit. (See, e.g., People v.
Rodriguez (2012) 55 Cal.4th 1125, 1132 [plain meaning of “criminal conduct
by members” of a gang requires at least two members participate].)
But as plaintiffs observe, if “residential units” is strictly construed to
mean the plural only, it is not apparent why “mixed-use developments” under
5 The trial court took judicial notice of two other committee analyses of
Senate Bill No. 619, which plaintiffs rely on and we discuss further below.
On our own motion, we take judicial notice of the additional legislative
materials cited in this paragraph and below. (See Evid. Code, §§ 452,
subd. (c), 459.)
11
subdivision (h)(2)(B) of section 65589.5 should not also be so construed. Yet if
“[m]ixed-use developments” included the plural only, then we would be left
with the absurd result that a single mixed-use development project would not
qualify as a housing development project.6 Although the County dismisses
plaintiffs’ argument as overly technical, we conclude that the use of the
plural, standing alone, does not establish that only the plural was intended.
(See, e.g., Bay Guardian Co. v. New Times Media LLC (2010)
187 Cal.App.4th 438, 460–461 [rejecting “literal reading” of plural that would
result in “illogical and meaningless consequences”].)
The Department has interpreted the HAA not to “apply to applications
for individual single-family residences,” reasoning that “[b]ecause the term
‘units’ is plural, a development has to consist of more than one unit to qualify
under the [statute].” (Cal. Dept. of Housing and Community Development,
HAA Technical Assistance Advisory memorandum, Sept. 15, 2020, p. 19,
available at
(last visited June 14, 2022).) Plaintiffs argue that we should not defer to this
interpretation, and the County does not argue otherwise. Since we do not
find the HAA’s use of the plural “units” to be definitive, we give little weight
6 While we agree with plaintiffs on this point, we do not agree that
excluding an individual single-family home from the HAA would also “create
an absurd inconsistency” in light of the provision for mixed-use
developments. Plaintiffs posit that a three-story building composed of
“ground-floor retail and a single residential unit on the second and third
floors” would qualify as a “housing development project” even though a stand-
alone single residential unit would not. But this might encourage inclusion of
a residential unit that would not otherwise have been built in a more
commercial area. In any case, we suspect that projects to construct a single
residential unit at least double the size of an accompanying nonresidential
use are not common.
12
to the Department’s interpretation in our de novo review of the statute’s
meaning. (See Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 7–8.)
Although we agree with plaintiffs that the use of the plural “units” does
not establish that only the plural was intended, we are unconvinced that
section 13, which provides that “[t]he singular number includes the plural,
and the plural the singular,” necessarily controls. “Section 13 is subject to
the usual qualification that the definitions given in such preliminary sections
govern the construction of the Government Code ‘[unless] the provision or the
context otherwise requires . . . .’ (§ 5.) Preliminary definitions are superseded
when they obviously conflict with the Legislature’s subsequent use of the
term in a different statute in a different context.” (Price v. Tennant
Community Services Dist. (1987) 194 Cal.App.3d 491, 499, italics added; see
People v. Rodriguez, supra, 55 Cal.4th at pp. 1132–1133 [considering similar
provision under the Penal Code].) In short, we cannot resolve whether a
single house qualifies as a “housing development project” based merely on the
HAA’s reference to “residential units.”
We therefore turn to the broader meaning of “housing development
project.” The HAA falls under chapter 3 of the Planning and Zoning Law
(§ 65000 et seq.). Although the words “housing,” “development,” and “project”
are not individually defined in this chapter, “the terms development,
project[,] and development project are defined in another chapter of the
Planning and Zoning Law,” chapter 4.5, “relating to the review and approval
of development projects.” (Chandis Securities Co. v. City of Dana Point
(1996) 52 Cal.App.4th 475, 485–486 (Chandis).)
In Chandis, the Fourth District Court of Appeal addressed whether a
city’s proposed “adoption of a specific plan and a general plan amendment
13
relating to [the] plaintiffs’ property” that would have “allow[ed] development
of the land” qualified as a “housing development project” under the HAA
when that term was not yet statutorily defined. (Chandis, supra,
52 Cal.App.4th at pp. 479, 485–486.) Chandis determined it was appropriate
to consult the definitions in chapter 4.5 because “identical words . . . in
different statutes relating to the same subject matter are construed as having
the same meaning.” (Id. at pp. 485–486.) Then as now, those definitions
consist of the following: “ ‘ “Development[”] means . . . the placement or
erection of any solid material or structure; . . . grading, removing, dredging,
mining, or extraction of any materials; change in the density or intensity of
use of land . . . .’ (§ 65927.) ‘ “Project” means any activity involving the
issuance to a person of a lease, permit, license, certificate, or other
entitlement for use by one or more public agencies.’ (§ 65931.)
‘ “Development project” means any project undertaken for the purpose of
development . . . .’ (§ 65928.) It includes ‘a project involving the issuance of a
permit for construction or reconstruction . . . .’ (Ibid.)” (Chandis, at pp. 485–
486.) Chandis concluded that these definitions “apply when a local planning
agency is considering a specific construction proposal” and “would not include
the disapproval or conditional approval of a specific plan.” (Id. at p. 486.)
Still, these statutes do not resolve the meaning of the unhyphenated
phrase “housing development project.” As their broad definitions suggest, the
phrase could use development as a verbal adjective and mean a project to
develop housing (a housing “development project”). On the other hand, the
phrase could use development as a concrete noun and mean a project to build
a housing development (a “housing-development” project), a concept these
statutes do not define. Under the first interpretation, a project to build a
single home would seemingly qualify as a housing development project,
14
because it is a “project undertaken for the purpose of development” (§ 65928)
and the development activity consists of constructing housing. Under the
second interpretation, the same project would seemingly not qualify as a
housing development project, since an individual single-family home is not a
“housing development,” a term that generally refers to a group of housing
units.7 (See, e.g., Oxford English Dictionary Online
(as of June 14, 2022)
[“the action or process of planning and building a group of houses and
associated services on a site; (concrete) the result of this, a housing estate”];
Merriam-Webster Dict. Online (as of June 14, 2022) [“a
group of individual dwellings or apartment houses typically of similar design
that are usually built and sold or leased by one management”].) We accept
that some of the definitional statutes in the Planning and Zoning Law
arguably support the first interpretation. But, as we now explain, the HAA’s
statutory context as a whole, legislative history, and purpose weigh more in
favor of the second interpretation.
Since the definition of “housing development project” is ambiguous, we
turn to the more specific statutory context in which it appears. (See Murphy
v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1103.) Other parts
of the HAA use “development” as a concrete noun when referring to housing
development projects, suggesting that the phrase means a project to
construct a housing development, not a project to develop housing.
Section 65589.5(j)(2)(A) provides that “[i]f the local agency considers a
7Since we need decide only whether a project consisting of one
residential unit qualifies as a “housing development project,” we express no
opinion whether that term contemplates a minimum number of units that is
greater than two.
15
proposed housing development project to be inconsistent, not in compliance,
or not in conformity with an applicable . . . provision . . . , it shall provide the
applicant with . . . an explanation of the reason or reasons it considers the
housing development to be inconsistent, not in compliance, or not in
conformity.” (Italics added.) Subdivision (k), which addresses litigation to
enforce the HAA, provides that a “court may issue an order or judgment
directing the local agency to approve the housing development project or
emergency shelter if the court finds that the local agency acted in bad faith
when it disapproved or conditionally approved the housing development or
emergency shelter in violation of this section.”8 (§ 65589.5, subd. (k)(1)(A)(ii),
italics added.) Other examples are found in subdivision (l), addressing
increased fines for failing to comply with a court’s order, and subdivision (o),
addressing the ordinances, policies, and standards that apply to a housing
development project depending on when a preliminary application is
submitted.
Section 65582.1, which is also part of the Housing Element Law,
further supports the interpretation that “housing development project”
means a project to construct a housing development. Section 65582.1 sets
8 In Honchariw v. County of Stanislaus (2013) 218 Cal.App.4th 1019(Honchariw II), the Fifth District held that a developer was not entitled to
attorney’s fees under former section 65589.5, subdivision (k), which provided
that such fees be awarded to a prevailing party “who proposed the housing
development.” (Former § 65589.5, subd. (k); Honchariw II, at p. 1023.) After
observing that Honchariw I’s interpretation of “housing development project”
was not binding because of the “slight difference in language,” Honchariw II
concluded that in context “housing development” included only affordable
housing. (Honchariw II, at pp. 1023–1024.) Subdivision (k) has since been
amended to apply to litigation involving all housing development projects, not
just those to build affordable housing, and the language Honchariw II
addressed has been removed. (See § 65589.5, subd. (k)(1)(A)(i)(II).)
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forth the finding that the Legislature “has provided reforms and incentives to
facilitate and expedite the construction of affordable housing” and lists the
provisions containing those reforms and incentives. One of the provisions
listed is the HAA, which is described as “Restrictions on disapproval of
housing developments (Section 65589.5).” (§ 65582.1, subd. (c), italics added.)
Section 65582.1 was added in 2006 (Stats. 2006, ch. 888, § 4), a few years
after the definition of “housing development project” was added to the HAA,
and has always described the HAA as pertaining to “housing developments.” 9
The legislative history of Senate Bill No. 2011 (1981–1982 Reg. Sess.)
(Senate Bill No. 2011), which enacted the HAA, also supports the conclusion
that “housing development project” refers to a project to build a housing
development.10 Committee reports uniformly described the bill as pertaining
to “housing developments.” For example, under the heading “Housing
developments,” a staff analysis stated the bill would “shift[] the burden of
proof onto the county or city if it approves a housing development at less than
the maximum permitted density, or if it disapproves a housing development
which conforms to local planning, zoning, and development policies.” (Sen.
Local Government Com., Analysis of Sen. Bill No. 2011, May 3, 1982, p. 1.)
Likewise, a legislative analyst report stated the bill would “specif[y] the bases
9 Although not indicative of legislative intent, decisions interpreting the
HAA have also described it as involving housing developments. (E.g.,
CaRLA, supra, 68 Cal.App.5th at p. 835 [HAA governs disapproval of “a
proposed housing development”]; Kalnel Gardens, LLC v. City of Los Angeles
(2016) 3 Cal.App.5th 927, 938 [HAA “was designed to limit the ability of local
governments to reject or render infeasible housing developments based on
their density”]; Chandis, supra, 52 Cal.App.4th at p. 485 [before Honchariw I,
describing the HAA as “concern[ing] affordable housing developments”].)
10On our own motion, we take judicial notice of the legislative
materials pertaining to Senate Bill No. 2011 that are cited below. (See Evid.
Code, §§ 452, subd. (c), 459.)
17
on which a local agency may decide to disapprove, or conditionally approve, a
proposed housing development” and require “disapprovals . . . [to] be based on
[a] written finding[] by the local agency . . . that the development would have
an adverse impact on public health or safety.” (Legislative Analyst, Analysis
of Sen. Bill No. 2011, as amended Aug. 2, 1982, pp. 1–2.) Other legislative
materials contain similar language. (E.g., Assembly 3d reading analysis,
Sen. Bill No. 2011, as amended Aug. 17, 1982, p. 1 [bill “[r]equires a local
agency to base its approval or disapproval of a proposed housing development
on written findings, as specified”]; Sen. Republican Caucus, analysis of Sen.
Bill No. 2011, Aug. 23, 1982, p. 2 [“If a proposed housing development that
was originally disapproved must now be approved as a result of this measure,
the locality would experience increased costs for public services”].)
The legislative history of Senate Bill No. 2011 also highlights that the
HAA encourages more housing by limiting a local agency’s ability to approve
lower-density projects—a scenario that would never apply to a single-unit
project. The HAA, both as originally enacted and today, restricts agencies’
ability to approve projects “upon the condition that the project be developed
at a lower density.” (Stats. 1982, ch. 1438, § 2; § 65589.5(j)(1).) As one
committee report explained, “The cost of housing reflects several factors
including, of course, the cost of land and the installation of infrastructure to
service the unit. The greater the number of units which may be constructed
on a given parcel, the lower the unit’s proportionate share of the land and
infrastructure costs will be. The provisions of Section 65589.5 would
discourage reducing the density of a proposed development which meets the
zoning and planning policies in effect.” (Assem. Com. on Housing &
Community Development, Analysis of Sen. Bill No. 2011, as amended May
19, 1982, p. 1.) This goal further suggests that the term “housing
18
development project” was meant to cover projects to construct housing
developments, not projects to build one unit of housing.
Subsequent legislative activity regarding the HAA is consistent with
this conclusion, contrary to plaintiffs’ claim otherwise. Plaintiffs direct us to
a Senate committee report on Senate Bill No. 619 that described the bill as
defining “housing development project” to mean “residential housing or
mixed-use developments.” (Sen. Com. on Natural Resources and Wildlife,
Analysis of Sen. Bill No. 619, Apr. 21, 2003, p. 3.) Plaintiffs also point out
that another Senate committee report described the bill as “provid[ing] that,
in addition to residential-only developments, the protections of the anti-
NIMBY act apply to mixed-use residential developments in which
neighborhood-servicing commercial uses occupy the first floor of a building
that is at least two stories.” (Sen. Rules Com., Off. Of Sen. Floor Analyses,
Unfinished Business analysis of Sen. Bill No. 619, as amended August 25,
2003, p. 3.) According to plaintiffs, these reports show that “[t]he Legislature
did not suggest that the ‘residential housing’ meant by a housing
development project under the HAA is subject to a minimum number of units.
Rather, it referred generally to residential developments, alongside mixed-
use developments.”
To the extent these portions of the Senate committee reports are
revealing, they do not advance plaintiffs’ position. Rather, the reports
repeatedly use development as a concrete noun, which supports the
interpretation of “residential units” to mean more than one unit. Instances of
this usage also appear in other portions of the legislative history of Senate
Bill No. 619. (See, e.g., Sen. Com. on Housing & Community Development,
Analysis of Sen. Bill No. 619, as amended Apr. 1, 2003, p. 3 [the bill “provides
that, in addition to residential-only developments, the protections of the
19
[HAA] apply to mixed-use residential developments”].) And although the
phrase “residential housing or mixed-use developments” could be interpreted
to refer to “residential housing,” a term whose ordinary meaning would
include an individual single-family home, the phrase could also be read so
that “residential housing” modifies “developments,” constituting another use
of “development” as a concrete noun.
For its part, the County points out that a few years ago, the Legislature
proposed but ultimately rejected “a revision to the HAA that would have
broadened the definition of housing development project in exactly the way
that [plaintiffs] argue was already in place in the existing law.” A
June 13, 2019 Assembly amendment to Senate Bill No. 592 (2019–2020 Reg.
Sess.) (Senate Bill No. 592) would have provided that “housing development
project” under the HAA “may solely be, or may include, a single unit,
including an accessory dwelling unit as defined in Section 65852.2” and “may
solely be, or may include, the addition of one or more bedrooms to an existing
residential unit.”11 The accompanying Legislative Counsel’s Digest noted
that the bill “would define a housing development project for purposes of [the
HAA] to also include a single unit, including an accessory dwelling unit, or
the addition of one or more bedrooms to an existing residential unit.”
The County claims that “[t]his proposed amendment shows that the
existing law did not cover single-family homes, because if it did, there would
have been no reason to propose such an amendment.” But as the County also
admits, our state Supreme Court has “repeatedly observed that the
11 The trial court took judicial notice of the June 13, 2019 amendment
to Senate Bill No. 592. On our own motion, we take judicial notice of further
legislative history of the bill cited below. (See Evid. Code, §§ 452, subd. (c),
459.) As ultimately passed, Senate Bill No. 592 addressed matters unrelated
to the HAA. (Stats. 2020, ch. 230.)
20
Legislature’s failure to enact a proposed amendment to an existing statutory
scheme offers only limited guidance, if any, concerning the Legislature’s
original intent.” (Martin v. Szeto (2004) 32 Cal.4th 445, 451.) This is because
“ ‘[t]he unpassed bills of later legislative sessions evoke conflicting inferences.
Some legislators might propose them to replace an existing prohibition;
others to clarify an existing permission. A third group of legislators might
oppose them to preserve an existing prohibition, and a fourth because there
was no need to clarify an existing permission.’ ” (Marina Point, Ltd. v.
Wolfson (1982) 30 Cal.3d 721, 735, fn. 7.)
Here, the unpassed bill’s import is further clouded because the
amended definition of “housing development project” was only one of several
ways the bill would have changed the HAA. The other changes would have
included extending the HAA “to any land use decision by a local agency” and
providing that “a general plan, zoning[,] or subdivision standard or criterion
is not ‘applicable’ if its applicability to a housing development project is
discretionary or if the project could be approved without the standard or
criterion being met.” (Assem. Com. on Housing & Community Development,
Analysis of Sen. Bill No. 592, as amended June 13, 2019, p. 1.) Moreover,
even the amended definition itself had several aspects, providing not just
that single units but also ADUs and added bedrooms were covered. Under
these circumstances, we cannot parse out the significance of the proposal and
rejection of adding “a single unit” to the definition of “housing development
project.”
Even if we could otherwise interpret the failed amendment to
demonstrate the Legislature’s collective belief that the HAA either does or
does not include a single residential unit, there is a third possibility that
subsequent legislative events suggest: There is currently no legislative
21
agreement on this issue, leaving it all the more necessary for us to
concentrate on the intent when the law was enacted. Recently, Senate Bill
No. 8 (2021–2022 Reg. Sess.) (Senate Bill No. 8) amended the definition of
“housing development project” in section 65905.5.12 That statute, which is
also part of the Planning and Zoning Law, limits the number of hearings that
may be held on “a proposed housing development project [that] complies with
the applicable, objective general plan and zoning standards in effect at the
time an application is deemed complete.” (§ 65905.5, subd. (a).) Originally,
section 65905.5, which was enacted in 2019, provided that “ ‘[h]ousing
development project’ has the same meaning as defined in paragraph (2) of
subdivision (h) of Section 65589.5,” that is, as under the HAA. (Former
§ 65905.5, subd. (b)(3); Stats. 2019, ch. 654, §§ 1, 4.) Senate Bill No. 8 added
to section 65905.5’s definition so that it now provides not only that the phrase
means the same thing it does under the HAA but also that “ ‘[h]ousing
development project’ includes a proposal to construct a single dwelling unit.
This subparagraph shall not affect the interpretation of the scope of
paragraph (2) of subdivision (h) of Section 65589.5,” i.e., the HAA’s definition
of the phrase. (§ 65905.5, subd. (b)(3), italics added; Stats. 2021, ch. 161, § 2.)
The bill also added subdivision (f), which provides that these additions to the
statutory definition “do not constitute a change in, but are declaratory of,
existing law.” (§ 65905.5, subd. (f); Stats. 2021, ch. 161, § 2.)
The italicized portion of the amended definition of “housing
development project” demonstrates the Legislature’s reluctance to take a
12 At our request, the parties submitted supplemental briefing on what
effect, if any, Senate Bill No. 8 had on the interpretation of the phrase
“housing development project” under the HAA. We granted plaintiffs’
accompanying request for judicial notice of legislative materials related to
Senate Bill No. 8.
22
position on the same phrase’s meaning under the HAA, even though it
renders section 65905.5 internally inconsistent. “Housing development
project” under that provision still “has the same meaning” as it does under
the HAA, and Senate Bill No. 8’s amendments to the statutory definition “do
not constitute a change in, but are declaratory of, existing law.” (§ 65905.5,
subds. (b)(3)(A), (f).) It would thus follow that the new declaration that the
term “includes a proposal to construct a single dwelling unit” (§ 65905.5,
subd. (b)(3)(C)) applies equally to the term’s definition under the HAA, since
the two statutory definitions are equivalent and the amendment to
section 65905.5’s definition did not change existing law. Yet simultaneously,
the new declaration cannot be used to interpret the term under the HAA.
A Senate Committee report on Senate Bill No. 8 frankly acknowledged
these contradictions in section 65905.5’s amended definition of “housing
development project” and tied them to legislative inaction to address the
same phrase’s definition under the HAA. (Sen. Com. on Governance and
Finance, Analysis of Sen. Bill No. 8, Mar. 25, 2021, pp. 3–4.) The report
stated,
“Debate rages in planning circles over whether the HAA
applies to single unit projects or just to multi-family projects . . . .
Some developers argue that the HAA applies to all housing
projects, while, in an unusual alliance, local governments and the
[Department] agree that it only applies to developments of two
units or more. SB 8 muddies the waters further:
“On the one hand, SB 8 amends the definition of housing
development project in some parts of the bill to include . . . single
unit developments, but specifically does not amend the definition
in the HAA, even though the bill makes other changes to the
HAA.
“On the other hand, SB 8 says that the changes it makes to
the definition of housing development project are declaratory of
23
existing law, which developers might point to in arguing that the
HAA’s definition should be read broadly.
“What is clear from SB 8 is that housing projects of any size
. . . can benefit from the Housing Crisis Act’s protections . . . .
The scope of the HAA is a much bigger conversation than the
issues raised in SB 8, but legislation providing clarity on the
definition of housing development project under the HAA may be
beneficial down the line.” (Ibid.)
Given this clear legislative intent not to decide whether “housing
development project” under the HAA includes a single residential unit, we
will not rely on section 65905.5’s amended definition to construe the phrase’s
meaning. As plaintiffs point out, even if Senate Bill No. 8 had been intended
to clarify the HAA definition, “a legislative declaration of an existing statute’s
meaning is neither binding nor conclusive in construing the statute. . . .
Indeed, there is little logic and some incongruity in the notion that one
Legislature may speak authoritatively on the intent of an earlier
Legislature’s enactment when a gulf of decades separates the two bodies.”
(Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.)
Instead, considering the statutory definition in context and legislative
statements made both when the HAA was originally enacted and when the
definition was passed into law, we conclude that it is more reasonable to
interpret “housing development project” not to include a project to build an
individual single-family home. (See People v. Cornett (2012) 53 Cal.4th 1261,
1271 [“ ‘[i]f a statute is amenable to two alternative interpretations, the one
that leads to the more reasonable result will be followed’ ”].)
Finally, we address plaintiffs’ argument that “[i]n order to effectuate
the purpose and intent of the HAA, its definition of ‘housing development
project’ should be interpreted liberally to include individual single-family
homes.” As previously noted, the HAA is to be interpreted so as “to afford the
24
fullest possible weight to the interest of, and the approval and provision of,
housing.” (§ 65589.5, subd. (a)(2)(L).) Such rules of liberal construction do
not, however, allow us to ignore the statutory language or construe it “ ‘to
accomplish a purpose that does not appear on the face of the statute or from
its legislative history.’ ” (Chester v. State of California (1994) 21 Cal.App.4th
1002, 1008; Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 842; see, e.g., Leber v. DKD of Davis,
Inc. (2015) 237 Cal.App.4th 402, 410; Hoitt v. Department of Rehabilitation
(2012) 207 Cal.App.4th 513, 526.) The HAA’s purpose of encouraging more
housing does not compel us to interpret the statute to encompass as many
projects as possible, without regard to other indications that a project must
have at least two residential units to qualify as a “housing development
project” under section 65589.5, subdivision (h)(2)(A).
In any case, we do not agree with plaintiffs that the policy of
interpreting the HAA “to afford the fullest possible weight” to providing more
housing necessarily means the statute should be construed to apply to
individual single-family homes. If a project must include at least two units to
benefit from the HAA’s easier approval process, potential builders have more
incentive to construct more than one unit. Thus, plaintiffs are incorrect that
interpreting the HAA to be inapplicable to a project to construct one single-
family home will “hav[e] the dire effect of excluding any district zoned solely
for single-family homes from the HAA.” (Emphasis omitted.) While some
might choose not to build a single residence because the project is not covered
by the HAA, many others might choose to build multiple single-family homes,
and build them more densely.13
In fact, the Legislature recently enacted a new law that further
13
encourages denser development in areas zoned for single-family homes.
25
Plaintiffs also unduly emphasize that the HAA is intended “to
significantly increase the approval and construction of new housing for all
economic segments of California’s communities.” (§ 65589.5, subd. (a)(2)(K).)
Housing for more affluent people may not be categorically excluded from the
HAA, but many of the Legislature’s other statutory findings convey
particular concern about the lack of affordable housing. For example, the
housing crisis is characterized as “hurting millions of Californians, robbing
future generations of the chance to call California home, . . . [and] worsening
poverty and homelessness.” (§ 65589.5, subd. (a)(2)(A).) “Only one-half of
California’s households are able to afford the cost of housing in their local
regions,” and “[l]ack of supply and rising costs are compounding inequality
and limiting advancement opportunities for many Californians.” (§ 65589.5,
subd. (a)(2)(E)–(F).) Problems like homelessness, being forced to leave the
state, or having limited advancement opportunities are far more likely to
affect Californians of lower income levels than parties who are in the position
to build their own single-family homes.14
Given the statutory context in which the definition of “housing
development project” appears and the legislative history, we hold that the
Under Senate Bill No. 9 (2021–2022 Reg. Sess.), effective January 1, 2022,
“[a] proposed housing development containing no more than two residential
units” on a qualifying single-family lot or the proposed subdivision of such a
lot is subject to a local agency’s ministerial instead of discretionary approval.
(§ 65852.21; Stats. 2021, ch. 162, §§ 1–2.)
14 We do not place such parties in the same category as those who
might live in a development of multiple single-family homes like the one at
issue in Honchariw I. Plaintiffs rhetorically ask why “the Legislature [would]
intend for the HAA to apply to multiple single-family homes when permitted
together . . . but not when permitted one at a time,” but such multi-home
projects not only increase housing stock more efficiently but also are more apt
to be affordable for a greater number of people.
26
HAA does not apply to projects to build individual single-family homes.
Accordingly, plaintiffs’ project is not subject to the HAA.
C. Equitable Estoppel Does Not Apply in This Case.
Plaintiffs also claim that the doctrine of equitable estoppel precludes
the County from arguing that the HAA is inapplicable. Plaintiffs contend
that the project was originally clearly subject to the HAA because it included
two units, but they removed the ADU because the County “wrongfully” told
them they had to do so to get the project approved. We conclude that the
claim is forfeited.15
Under the doctrine of equitable estoppel, “ ‘[w]henever a party has, by
[the party’s] own statement or conduct, intentionally and deliberately led
another to believe a particular thing true and to act upon such belief, [the
party] is not, in any litigation arising out of such statement or conduct,
permitted to contradict it.’ [Citation.] ‘ “Generally speaking, four elements
must be present in order to apply the doctrine . . . : (1) the party to be
estopped must be apprised of the facts; (2) [the party] must intend that [its]
conduct shall be acted upon, or must so act that the party asserting the
estoppel had a right to believe it was so intended; (3) the other party must be
ignorant of the true state of facts; and (4) [the other party] must rely on the
conduct to [its] injury.” ’ ” (Honeywell v. Workers’ Comp. Appeals Bd. (2005)
35 Cal.4th 24, 37.)
Equitable estoppel “ ‘ordinarily will not apply against a governmental
body except in unusual instances when necessary to avoid grave injustice and
when the result will not defeat a strong public policy.’ ” (Steinhart v. County
15As a result, we agree with the County that we need not resolve in
this appeal whether a project to build a single-family home and an ADU is a
“housing development project” under the HAA.
27
of Los Angeles (2010) 47 Cal.4th 1298, 1315.) Thus, even if the doctrine’s
elements are otherwise met, “the court must weigh the policy concerns to
determine whether the avoidance of injustice in the particular case justifies
any adverse impact on public policy or the public interest.” (Schafer, supra,
237 Cal.App.4th at p. 1261.) “Particularly in land use cases, ‘[c]ourts have
severely limited the application of estoppel . . . by expressly balancing the
injustice done to the private person with the public policy that would be
supervened by invoking estoppel to grant development rights outside of the
normal planning and review process. [Citation.] The overriding concern “is
that public policy may be adversely affected by the creation of precedent
where estoppel can too easily replace the legally established substantive and
procedural requirements for obtaining permits.” [Citation.] Accordingly,
estoppel can be invoked in the land use context in only “the most
extraordinary case where the injustice is great and the precedent set by the
estoppel is narrow.” ’ ” (Id. at pp. 1262–1263.)
Whether equitable estoppel applies “generally is a factual question for
the trier of fact to decide, unless the facts are undisputed and can support
only one reasonable conclusion as a matter of law.” (Schafer, supra,
237 Cal.App.4th at p. 1263.) In a case involving the government, “the
existence of estoppel is in part a legal question to the extent it involves
weighing policy concerns to determine whether the avoidance of injustice in
the particular case justifies any adverse impact on public policy or the public
interest.” (Ibid.) We review factual findings for substantial evidence and
consider legal questions de novo. (Id. at pp. 1263–1264.)
Plaintiffs have forfeited this claim. Although they argued in passing
below that the County behaved wrongfully in “forcing [them] to remove the
ADU” and should be estopped from claiming that the HAA did not apply, they
28
made no attempt to demonstrate that the elements of equitable estoppel were
met.16 Accordingly, the trial court made no findings on this issue. Moreover,
even if we were to conclude that the undisputed facts satisfy the doctrine’s
standard elements, plaintiffs have not shown that this is the rare land-use
case in which equitable estoppel should be applied against the government.
(See Schafer, supra, 237 Cal.App.4th at pp. 1262–1263.) The claim fails.
D. Substantial Evidence Supports the County’s Denial of the Project.
Finally, plaintiffs claim that reversal is required even if the HAA does
not apply, because insufficient evidence supports “the County’s findings that
the [p]roject is inconsistent with [the] policies and code requirements cited as
bases for denial.” We are not persuaded.
In analyzing this claim, “[w]e review the entire administrative record”
for substantial evidence to support the agency’s decision. (Schreiber v. City of
Los Angeles (2021) 69 Cal.App.5th 549, 558.) “ ‘ “We ‘ “do not reweigh the
evidence; we indulge all presumptions and resolve all conflicts in favor of the
[agency’s] decision. Its findings come before us ‘with a strong presumption as
to their correctness and regularity.’ [Citation.]” ’ [Citation.] When more
than one inference can be reasonably deduced from the facts, we cannot
substitute our own deductions for that of the agency. [Citation.] We may
reverse an agency’s decision only if, based on the evidence before it, a
reasonable person could not have reached such [a] decision.” ’ ” (Ibid.)
16 At oral argument, plaintiffs’ counsel claimed that plaintiffs raised
equitable estoppel in their briefing below and argued it meaningfully before
the trial court. In fact, plaintiffs’ discussion of the issue amounted to only a
paragraph in their opening brief, a footnote in their reply brief, and a few
lines in the reporter’s transcript, none of which actually mentioned the
doctrine’s elements or addressed when the doctrine may be appropriately
applied against the government.
29
Plaintiffs have the burden to demonstrate that insufficient evidence supports
the County’s determination. (See ibid.)
The County made numerous findings to justify its denial of the project.
The County concluded that the project was inconsistent with “the mandatory
findings for Design Review approval” under Marin County Code
section 22.42.060 (section 22.42.060), which in turn requires compliance with
the County’s Single-family Residential Design Guidelines. Among other
things, the County found that the house and parking deck were too large to
be compatible with the community and the temporary access road would be
too disruptive to the neighborhood and landscape. The County also
concluded, for similar reasons, that the project was inconsistent “with the
goals and policies of the Marin Countywide Plan” (countywide plan).17
Plaintiffs contend there is no substantial evidence to support the
County’s findings that (1) the project is “out of scale or not compatible with
the character of the surrounding neighborhood”; (2) the temporary access
road violated section 22.42.060 and the countywide plan; and (3) the project
did not comply with the countywide plan’s wetland conservation policies.
(Capitalization and boldface omitted.) In making these arguments, plaintiffs
fail to “ ‘summarize the evidence on [each] point, favorable and unfavorable,
and show how and why it is insufficient.’ ” (Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 409, some italics omitted.) Rather, plaintiffs
concentrate only on the evidence favoring their position and do not present “a
fair summary of the evidence bearing on the challenged finding[s].” (Id. at
pp. 409–410.) Accordingly, they have not met their burden of demonstrating
17We granted plaintiffs’ request for judicial notice of section 22.42.060
and portions of the countywide plan and Single-family Residential Design
Guidelines.
30
error, and we have no obligation “ ‘to undertake an independent examination
of the record.’ ” (Id. at p. 409.)
Even if plaintiffs had sufficiently summarized the relevant evidence,
we would reject their claim. In arguing that there was insufficient evidence
that the project was out of scale with the neighborhood, plaintiffs primarily
attack as “misleading” a neighbor’s analysis of neighborhood scale, which
concluded that the average size of the nearest 25 residences was 1,544 square
feet, and urge that their own analysis be credited instead. As the County
observes, however, the neighbor rebutted plaintiffs’ challenges to his
methodology, and we agree the County was entitled to rely on his analysis in
determining that the project was out of scale with the neighborhood.
Moreover, plaintiffs fail to address other evidence in the record supporting
the County’s findings, including visual representations of the project and
other neighbor testimony. And since plaintiffs do not claim that findings
about the project’s incompatibility with the neighborhood alone could not
justify the County’s decision, we need not consider their other two arguments.
In short, there was sufficient evidence for the County to deny the project on
the basis of the project’s outsized character.
III.
DISPOSITION
The order denying plaintiffs’ petition for a writ of administrative
mandamus is affirmed. Respondents are awarded their costs on appeal.
31
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Wiss, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
Reznitskiy v. Marin County et al. A161813
32
Trial Court:
Marin County Superior Court
Trial Judge:
Hon. Stephen P. Freccero
Counsel for Plaintiffs and Appellants:
Ryan J. Patterson, Emily L. Brough, Zacks, Freedman & Patterson
Counsel for Amicus Curiae Californians for Homeownership on behalf of
Plaintiffs and Appellants:
Matthew Gelfand, Allyson Richman
Counsel for Amicus Curiae California Association of REALTORS® on behalf
of Plaintiffs and Appellants:
Neil D. Kalin
Counsel for Amicus Curiae Building Industry Association – Bay Area on
behalf of Plaintiffs and Appellants:
Paul B. Campos
Counsel for Amicus Curiae YIMBY Law on behalf of Plaintiffs and
Appellants:
Kenneth Stahl, Miller Starr Regalia
Counsel for Defendants and Respondents:
Brian E. Washington, County Counsel
Brian C. Case, Deputy County Counsel
Brandon W. Halter, Deputy County Counsel
Reznitskiy v. Marin County et al. A161813
33