Judge Curtis A. Kin, Case Number: 23STCP00624, Date: 2023-11-07 Tentative Ruling

Petitioner Californians for Homeownership, Inc. petitions for a writ of mandate directing respondent City of Hawaiian Gardens to complete rezoning required under Government Code §§ 65583(c)(1)(A) and 65583.2(c).

The State of California requires each city to have a “comprehensive, long-term general plan for the physical development” of the city. (Gov. Code § 65300.)[1] Each general plan must have a housing element. (§ 65302(c).) The housing element consists of ‘standards and plans for housing sites in the municipality that ‘shall endeavor to make adequate provision for the housing needs of all economic segments of the community.’ [Citations.]” (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 444; see also § 65580 [legislative findings concerning Housing Element Law].)

“A municipality must review its housing element for the appropriateness of its housing goals, objectives, and policies and must revise the housing element in accordance with a statutory schedule.” (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 222, citing § 65588(a), (b).) “The interval between the due dates for the revised housing element is referred to as a planning period or cycle, which usually is eight years.” (Martinez, 90 Cal.App.5th at 222, citing § 65588(e)(3), (f)(1).)

“A revised housing element’s assessment of needs must quantify the locality’s existing and projected housing needs for all income levels, which includes the locality’s proportionate share of regional housing needs for each income level.” (Martinez, 90 Cal.App.5th at 223, citing § 65583(a)(1).) “The projected regional housing needs for a planning period are determined by the HCD [Department of Housing and Community Development] in consultation with regional ‘councils of government.’” (Martinez, 90 Cal.App.5th at 223, citing §§ 65584(a) & (b), 65584.01, 65588(e)(3).) “Based on the HCD’s regional housing needs determination, each regional council of governments adopts a ‘final regional housing need plan that allocates a share of the regional housing need’ among the cities and counties within its region.” (Martinez, 90 Cal.App.5th at 223, citing § 65584(b).)

The sixth cycle housing element deadline for local governments in Los Angeles County, including respondent City of Hawaiian Gardens, was October 15, 2021. (Answer ¶ 26.) Respondent submitted its initial draft housing element update to HCD in December 2021, which was after the deadline set forth in Government Code § 65585(b). (McCaleb Decl. ¶ 13; Answer ¶ 27.) On February 14, 2022, HCD provided respondent with revisions necessary to comply with the Housing Element Law. (McCaleb Decl. ¶ 14; Answer ¶ 28.)

Thereafter, on August 9, 2022, Respondent adopted its housing element. (Answer ¶ 29.) On September 29, 2022, HCD issued its determination that additional revisions were necessary to achieve full compliance with the Housing Element Law. (RJN Ex. C.) On February 21, 2023, respondent adopted an amended housing element. (Answer ¶ 37; RJN Ex. D.) On April 21, 2023, HCD issued a determination that the amended housing element did not substantially comply with state housing element law. (RJN Ex. E.)

The February 21, 2023 housing element requires that respondent rezone sites in order to comply with the Housing Element Law. (Answer ¶ 2.) Respondent has not yet completed this rezoning process. (Gelfand Decl. ¶ 2; McCaleb Decl. ¶ 26 [“If the City were to re-zone prior to receiving HCD’s approval….”].)

Petitioner Californians for Homeownership, Inc., as an interested person, seeks a writ of mandate directing respondent to rezone in compliance with sections 65583(c)(1)(A) and 65583.2(c). (Gov. Code § 65587(b), (d)(2); Gelfand Decl. ¶ 4 & Ex. 1 [letter from petitioner to respondent’s City Counsel dated February 21, 2023.)

On February 28, 2023, petitioner filed a verified petition for writ of mandate. On July 24, 2023, petitioner filed the operative verified first amended petition for writ of mandate. On August 25, 2023, respondent filed an answer.

On September 8, 2023, petitioner filed an opening brief. On October 6, 2023, respondent filed an opposition. On October 23, 2023, petitioner filed a reply.

The Court rules as follows with respect to petitioner’s requests for judicial notice:

· Exhibit B (July 5, 2021 Version, Bill Text of AB 1398 (2021-2022 Session) – GRANTED (Evid. Code § 452(c); Wood, 88 Cal.App.5th at 751, fn. 4)

· Exhibit C (September 29, 2022 Letter from HCD to City) – GRANTED (Evid. Code § 452(c))

· Exhibit D (City’s February 21, 2023 Adopted Housing Element) – GRANTED (Evid. Code § 452(c))

· Exhibit E (April 21, 2023 Letter from HCD to City) – GRANTED (Evid. Code § 452(c))

Respondent’s evidentiary objections and objections to certain of petitioner’s reply arguments are OVERRULED.

CCP § 1085(a) provides: “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“There are two essential requirements to the issuance of a traditional writ of mandate: (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (Id. at 705.)

Section 65587 expressly provides for two types of actions to compel compliance with the Housing Element Law. The first type of action is under subdivision (b), pursuant to which the Court determines whether the housing element, any portion thereof, or revision thereto substantially complies with the Housing Element Law:

Any action brought by any interested party to review the conformity with the provisions of this article of any housing element or portion thereof or revision thereto shall be brought pursuant to Section 1085 of the Code of Civil Procedure; the court’s review of compliance with the provisions of this article shall extend to whether the housing element or portion thereof or revision thereto substantially complies with the requirements of this article.

(§ 65587(b); see also § 65751.) Substantial compliance means “actual compliance in respect to the substance essential to every reasonable objective of the statute, as distinguished from mere technical imperfections of form.” (Martinez, 90 Cal.App.5th at 237, internal citations omitted.)

“[A] city’s adoption of a housing element is a legislative enactment, something which is generally entitled to some deference.” (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1191.) “If the municipality has substantially complied with statutory requirements, we will not interfere with its legislative action, unless that action was arbitrary, capricious, or entirely lacking in evidentiary support.” (Ibid.) The challenging party has the burden to demonstrate that the housing element is inadequate. (Ibid.)

The second type of action under subdivision (d) challenges a local government’s failure to rezone pursuant to section 65583(c)(1)(A):

If a court finds that a city…failed to complete the rezoning required by subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583, as that deadline may be modified by the extension provided for in subdivision (f) of that section, the court shall issue an order or judgment, after considering the equities of the circumstances presented by all parties, compelling the local government to complete the rezoning within 60 days or the earliest time consistent with public hearing notice requirements in existence at the time the action was filed.

(§ 65587(d)(1).) Any interested person may seek compliance with section 65583(c)(1). (§ 65587(d)(2).) “In any such action, the city, county, or city and county shall bear the burden of proof.” (Ibid.)

A city that fails to adopt a housing element that HCD has found to be in substantial compliance with the Housing Element Law within 120 days of the statutory deadline in section 65588 for adoption of the housing element is required to complete rezoning of sites, including adoption of minimum density and development standards, no later than one year from the statutory deadline. (§ 65583(c)(1)(A).)

If a city fails to adopt a housing element that HCD has found to be in substantial compliance with state law within 120 days of the statutory deadline, the city must complete rezoning no later than one year from the statutory deadline. (§ 65583.2(c).)

For the sixth revision and subsequent revisions, if a city does not adopt a housing element that HCD has found to be substantially compliant with the Housing Element Law within 120 days of the applicable deadline set forth in section 65588(e)(3)(A) or (C), the city shall complete the rezoning required under sections 65583(c)(1)(A) and 65583.2(c) within one year of the statutory deadline to revise the housing element. (§ 65588(e)(4)(C)(i).)

If the city adopts a housing element more than one year after the statutory deadline set forth in section 65588(e)(3)(A) or (C), the city shall not be found in substantial compliance with the Housing Element Law until it has completed the rezoning required under sections 65583(c)(1)(A) and 65583.2(c). (§ 65588(e)(4)(C)(iii).)

Respondent admits that the statutory deadline to adopt a sixth cycle updated housing element was October 15, 2021. (Answer ¶ 26.) Respondent had 120 days from October 15, 2021 (i.e., by February 12, 2022) to adopt a substantially compliant housing element. (§§ 65583(c)(1)(A), 65583.2(c).) Respondent adopted a housing element first on August 9, 2022, and then on February 21, 2023—both falling after the statutory deadline. (Answer ¶¶ 29, 37.) Accordingly, respondent was required to complete rezoning no later than one year from the statutory deadline, namely, by October 15, 2022.[2] (Gov. Code §§ 65583(c)(1)(A), 65583.2(c), 65588(e)(4)(C)(i).)

As noted, respondent adopted the housing element being challenged by petitioner on February 21, 2023, which was past the October 15, 2022 deadline. (Answer ¶ 37; RJN Ex. D.) Respondent therefore cannot be found to have substantially complied with the Housing Element Law until it has completed the rezoning required under sections 65583(c)(1)(A) and 65583.2(c). (§ 65588(e)(4)(C)(iii).)

Respondent argues that petitioner is not entitled to writ relief on the ground that there is purportedly no ministerial duty to rezone within a year from the statutory deadline. (See California Assn. for Health Services, 148 Cal.App.4th at 704 [CCP § 1085 mandate requires ministerial duty on part of respondent].) Respondent bases this contention on the following grounds: (1) the amendment of a housing element is inherently discretionary; and (2) requiring cities to rezone under section 65583(c)(1)(A) solely because they did not timely update a housing element would lead to absurd results and be contrary to legislative intent.

With respect to the first ground, “‘[a] ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a given state of facts exists, without regard to any personal judgment as to the propriety of the act. [Citation.]’” (Center for Biological Diversity v. Department of Forestry & Fire Protection (2014) 232 Cal.App.4th 931, 952, quoting People v. Picklesimer (2010) 48 Cal.4th 330, 340.) Respondent contends that, even if section 65583(c)(1)(A) prescribed a deadline to rezone, rezoning is part of the housing element, and the enactment of a housing element is discretionary. (See § 65583(c)(1) [housing element includes identification of “actions that will be taken to make sites available during the planning period with appropriate zoning and development standards”]; DeVita v. County of Napa (1995) 9 Cal.4th 763, 781-82 [“The amendment of a general plan [which includes a housing element] is an act of formulating basic land use policy, for which localities have been constitutionally endowed with wide-ranging discretion”].)

“‘Even if mandatory language appears in [a] statute creating a duty, the duty is discretionary if the [public entity] must exercise significant discretion to perform the duty.’ [Citation.]” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 701, quoting Sonoma AG Art v. Department of Food & Agriculture (2004) 125 Cal.App.4th 122, 127.) Preparing a housing element, including the determination of sites can be used to satisfy respondent’s share of the regional housing need, may require the exercise of significant discretion.

Nevertheless, the time by which respondent was required to adopt the housing element and complete rezoning has been mandated by the Legislature. (§§ 65588(e)(3) [deadline to adopt subsequent revisions of housing element is eight years after the deadline to adopt previous element]; 65583(c)(1)(A), 65588(e)(4)(C)(i) [failure to adopt housing element by statutory deadline requires rezoning triggers deadline to complete rezoning one year after statutory deadline].) The fact that preparation of a housing element may require the exercise of discretion makes the deadline by which to exercise such discretion no less mandatory. Indeed, allowing respondent to delay rezoning on the ground that it has discretion in the preparation of a housing element would impermissibly render ineffective the deadlines imposed by the Legislature. (Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1325 [“[I]nsofar as possible, we must harmonize code sections relating to the same subject matter and avoid interpretations that render related provisions nugatory”].)

With respect to the second ground, the Court recognizes it may “disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105.) Respondent contends that the purpose of section 65583(c)(1)(A) is to “encourage cities to adopt compliant Housing Elements on time—not to force cities without a compliant Housing Element to rezone very quickly.” (Opp. at 10:3-7.) Concerning Assembly Bill 1398, which changed the time to complete required rezonings from three years and 120 days to one year from the housing element’s statutory deadline, the author explained that the bill set the “right incentives” to complete rezoning which would increase the available land for housing, stating: “[I]t is critical that every local government adopt a plan that meets the requirements of state law, that they do it on time, and that they carry out necessary rezones to make land available for the production of housing, particularly higher-density zoned land that can accommodate housing affordable to lower-income households.” (RJN Ex. A at 2.) According to respondent, requiring cities that have unsuccessfully attempted to update their housing element to rezone based on a deficient housing element would not achieve the Legislature’s goal of encouraging cities to adopt housing elements that comply with state law. (Opp. at 10:23-11:2.)

Respondent’s resort to legislative history and purpose is unavailing. To begin with, it is unnecessary to resort to legislative history and intent where, as here, the deadlines set forth by the Legislature are clear. (People v. Salcido (2008) 166 Cal.App.4th 1303, 1314 [“If there is only one reasonable construction of statutory language, then we need not consider the legislative history and other extrinsic aids in determining the statute's legislative purpose”].) Further, to the extent legislative history and intent should be invoked to determine the proper application of section 65583(c)(1)(A), the legislative history is abundantly clear that the Legislature reduced the time to complete rezoning to encourage cities to increase the allowable density of land to accommodate housing planned for in the housing element and ameliorate the shortage of housing in California. That objective is furthered irrespective of whether a respondent city must make multiple attempts to revise its housing element to the satisfaction of HCD. (See McCaleb Decl. ¶¶ 13, 16, 18, 19, 21.) A city seeking to avoid the expedited timeline to rezone pursuant to section 65583(c)(1)(A) has a means to do so—adopt a housing element deemed by HCD to comply with the Housing Element Law within the statutory deadline. Such a framework created by the Legislature is not absurd.

For the reasons stated above, the Court finds that there is a ministerial duty for respondent to complete its rezoning within the time mandated by section 65583(c)(1)(A), which petitioner may seek to enforce through an action filed pursuant to section 65587(d)(2).[3] (See FAP ¶ 41 [citing § 65587(d)].)

Respondent also contends that petitioner has not argued or alleged that respondent has abused its discretion. “Mandamus may issue to correct the exercise of discretionary legislative power, but only if the action taken is so palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law.” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1265.) However, the requirement to comply with the rezoning deadline set forth is section 65583(c)(1)(A) is not discretionary for the reasons set forth above. Accordingly, any failure by petitioner to establish an abuse of discretion does not prevent the issuance of a writ of mandate.

According to section 65587(d)(1): “If a court finds that a city…failed to complete the rezoning required by subparagraph (A) of paragraph (1) of subdivision (c) of Section 65583, as that deadline may be modified by the extension provided for in subdivision (f) of that section [inapplicable here], the court shall issue an order or judgment, after considering the equities of the circumstances presented by all parties, compelling the local government to complete the rezoning within 60 days or the earliest time consistent with public hearing notice requirements in existence at the time the action was filed.” (Emphasis added.)

Respondent requests denial of the petition for equitable reasons. Respondent maintains that it “has acted reasonably in deciding not to rezone when HCD has found that its Housing Element, including its Zoning Program, is noncompliant and the City is actively engaged in the process of amending its Housing Element to make it compliant.” (Opp. at 11:18-20.) A writ of mandate may be denied as unnecessary when the evidence, including facts occurring after the filing of the petition, indicate that the respondent is willing to perform its ministerial duty without coercion. (TransparentGov Novato v. City of Novato (2019) 34 Cal.App.5th 140, 147.)

Respondent contends that its efforts to comply with the Housing Element Law have been frustrated by budget shortfalls resulting from the COVID-19 related closure of the Gardens Casino, which provided 70% of respondent’s General Fund revenue in 2022. (McCaleb Decl. ¶¶ 4, 5.) Key personnel in the preparation of a housing element, including the Community Development Director, retired in 2020 and 2021. (McCaleb Decl. ¶¶ 6-8.) Respondent was able to hire a part-time, interim replacement director in April 2022, but respondent did not obtain a full-time replacement director until July 2022. (McCaleb Decl. ¶¶ 9, 10.) While six full-time personnel and two part-time personnel staff respondent’s Community Development Department (“Department”), the Department is responsible for more than the housing element, including building planning, code enforcement, economic development, and administering the Section 8 housing program. (McCaleb Decl. ¶ 12.)

Respondent also argues that it has submitted four draft housing elements and expended more than $300,000 to hire consultants and planners to complete the housing element. (McCaleb Decl. ¶¶ 13, 16, 18, 21, 24, 25.) According to respondent’s consultant, it is likely that respondent will have to prepare a fifth and sixth draft. (McCaleb Decl. ¶ 21.) HCD has been unsatisfied with the analysis respondent elected to perform in the housing element, and subsequent drafts have not satisfied HCD’s concerns. (McCaleb Decl. ¶ 19.) HCD had maintained that the parcels in respondent’s small sites inventory are too small, and adjacent sites which could increase the size of the parcels are owned by private owners. (McCaleb Decl. ¶ 20.) Respondent has also reached out to the owners of sites identified for housing and conducted a housing needs assessment survey. (McCaleb Decl. ¶¶ 22, 23.)

The Court does not find that the equities weigh in favor of issuance of a writ of mandate. Respondent has had ample time to meet the deadline to submit an amended housing element for the sixth cycle, 2021-2029, which was October 15, 2021. (RJN Exs. C, E [defining sixth cycle as 2021-2029]; Answer ¶ 26; §§ 65583(c)(1)(A), 65583.2(c).) Indeed, over two years later, respondent still has not submitted a housing element that HCD deems compliant with the Housing Element Law. As for respondent’s contention that it should not have to complete rezoning until HCD has approved the housing element (McCaleb Decl. ¶ 25), respondent has not sufficiently addressed why it must be certain that HCD would approve of the rezoned sites before rezoning. Considering the housing crisis, the Legislature has clearly indicated cities must increase the allowable density for parcels by which new production of housing could occur, when the city fails to timely adopt a housing element. (RJN Ex. A at 1-2.) Far from being rendered obsolete (McCaleb Decl. ¶ 26), any rezoning completed by respondent before HCD’s approval of its housing element could only further the Legislature’s goal of increasing housing. The far more likely scenario after the HDC has finally approved respondent’s housing element is that any subsequent rezoning would increase zoning for housing development, as opposed to reducing re-zoned areas and potentially threatening interests of property owners and developers who relied on such interim re-zoning for housing development. To otherwise excuse respondent’s failure to rezone as required by statute would allow a city to feign inability to comply with the Housing Element Law as a shield from the Legislature’s clear command.

Respondent also contends that it cannot complete rezoning in the 60 days prescribed by section 65587(d)(1). Respondent contends that a zone change typically requires three to six months of processing time under the Hawaiian Gardens Municipal Code. (Opp. at 13, fn. 5.) However, respondent does not state which section of the Municipal Code supports the timeframe suggested by respondent. Rather, as pointed out by petitioner, state law indicates changes to zoning require a planning commission hearing and a city council hearing, each with 10 days’ notice to the public. (See Gov. Code §§ 65353(a), 65355, 65090.) Accordingly, it appears respondent can complete the required zoning changes within 60 days. In any event, section 65587(d)(1) allows the Court to set a timeframe to complete rezoning “consistent with public hearing notice requirements in existence at the time the action was filed.” Thus, the proper remedy may be to adjust the timeframe for completion, not to excuse the obligation to complete rezoning.

In the opening brief, petitioner sought a declaration that respondent is “subject to the limits in subdivisions (d)(1) and (d)(5) of Government Code Section 65589.5, the Housing Accountability Act.” (OB at 8:4-6.) However, in the reply, petitioner withdrew this request. (Reply at 9:22-23.) Accordingly, the Court does not rule on petitioner’s request for a declaration.

The petition is GRANTED. Pursuant to Local Rule 3.231(n) and consistent with Government Code § 65587(d)(1), petitioner shall prepare, serve, and ultimately file a proposed judgment and proposed writ of mandate.

[1] All statutory references are to the Government Code, unless otherwise specified.

[2] Section 65583.4(a) extends the time to complete required rezonings to three years and 120 days from the statutory deadline if all the following apply: (1) the statutory deadline was in 2021; (2) the city failed to adopt the sixth cycle updated housing element determined by HCD to be compliant with the Housing Element Law within 120 days of the statutory deadline; and (3) the city adopts a sixth revision of the housing element that HCD deems to comply with the Housing Element Law within one year of the statutory deadline to adopt the housing element. (§ 65583.4(a)(1-3.)) Respondent does not contend the section 65583.4(a) exception applies. Indeed, respondent admits HCD has not approved respondent’s housing element. (See McCaleb Decl. ¶¶ 19, 21, 26.) Thus, respondent had until October 15, 2022 to complete the statutorily required rezoning.

[3] Having found the existence of a ministerial duty, it is unnecessary to address respondent’s contention in its sur-reply objection that petitioner waited until the reply to argue that a “substantial compliance” test applied instead of a “more general” standard under CCP § 1085. (Resp. Obj. at 6:9-7:11.) The Court notes that “substantial compliance” review is not inconsistent with the requirement of a ministerial duty under CCP § 1085, as “[s]uch a review is limited to whether the housing element satisfies the statutory requirements [of the Housing Element Law], ‘not to reach the merits of the element or to interfere with the exercise of the locality's discretion in making substantive determinations and conclusions about local housing issues, needs, and concerns.’ [Citation.]” (Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 237, quoting Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1185.)