1

Filed 7/11/13 (see last page of opn. for appx. referred to on p. 7)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

LATINOS UNIDOS DEL VALLE DE 

NAPA Y SOLANO et al.,

Plaintiffs and Appellants,

v.

COUNTY OF NAPA,

Defendant and Respondent.

A135094

(Napa County

Super. Ct. No. 26-50568)

Latinos Unidos Del Valle de Napa y Solano (Latinos Unidos)1and individual 

plaintiffs Hector Olvera, Antonio Manzo, and Gabriel Deharo appeal from a judgment 

entered in favor of defendant County of Napa (the county) on their petition for a writ of 

mandate. Plaintiffs contend that the court erred in rejecting their contentions that (1) the 

county‟s 2009 housing element does not substantially comply with the state Housing 

Element Law (Gov. Code,2§ 65580 et seq.); (2) the county‟s density bonus ordinance 

conflicts with the state Density Bonus Law (§ 65915); and (3) the county‟s zoning 

ordinances discriminate against affordable housing and lower income persons in violation 

of section 65008 and against Latinos and people with disabilities in violation of the 

federal Fair Housing Act (42 U.S.C. § 3601 et seq.), the state Fair Employment and 

Housing Act (§ 12900 et seq.) and section 65008. Although we agree with the trial 

 

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts I and III of the Discussion.

1

Latinos Unidos is a nonprofit public benefit corporation, which advocates for “nondiscriminatory development policies . . . that address the needs of all economic segments

of the population” in Napa County. 

2 All statutory references are to the Government Code unless otherwise noted. 
2

court‟s conclusions in most respects, in the published portion of this opinion we conclude 

that the county‟s density bonus ordinance unlawfully conflicts with the state Density 

Bonus Law. Accordingly, we shall reverse the judgment in that one respect and remand 

the matter with appropriate instructions.

PROCEDURAL HISTORY

Latinos Unidos commenced this action in November 2009. In July 2010, Latinos 

Unidos along with the individual plaintiffs filed a second amended petition for writ of 

mandate and complaint for declaratory and injunctive relief. Plaintiffs allege that the 

county‟s zoning scheme discriminates against low-income and very-low income persons 

in violation of section 65008; that the zoning scheme violates the federal Fair Housing 

Act, the state Fair Employment and Housing Act and section 65008 in that it discourages 

and interferes with the development of affordable housing, which has a disparate impact 

on Latinos and people with disabilities; that the county‟s housing element fails to comply 

with California‟s Housing Element Law; and that the county‟s density bonus ordinance 

conflicts with the state Density Bonus Law.

In May and June of 2011, the trial court conducted a hearing on plaintiffs‟ 

challenges to the county‟s housing element, after which the court issued an order holding 

that the housing element “substantially complied” with state law. The trial court then 

conducted a multiday hearing on plaintiffs‟ remaining claims and on February 1, 2012, 

issued a statement of decision finding in favor of the county on all other claims. Plaintiffs 

filed a timely notice of appeal. 

DISCUSSION

I. The County’s Housing Element

A. Summary of the Housing Element Law

Declaring housing availability to be of “vital statewide importance” and the 

“attainment of decent housing and a suitable living environment . . . a priority of the 

highest order,” the Legislature enacted the Housing Element Law, which requires local 

governments to adopt a “housing element” as a component of its general plan. (§ 65580 

et seq., added by Stats. 1980, ch. 1143, p. 3697, § 3; Fonseca v. City of Gilroy (2007) 148 
3

Cal.App.4th 1174, 1183 (Fonseca).) The purpose of the Housing Element Law is, among 

other things, “[t]o assure . . . cities [will] recognize their responsibilities in contributing to 

the attainment of the state housing goal,” including “housing affordable to low- and 

moderate-income households.” (§§ 65580, subd. (c), 65581, subd. (a).)3 A local 

government‟s housing element must be reviewed and revised every five to eight years. 

(§§ 65583, 65588, subds. (b), (e).)

The housing element of a general plan must contain specific components, 

analyses, goals and policies. (§ 65583.)4The housing element must include, among other 

things, “[a]n inventory of land suitable for residential development, including vacant sites 

and sites having potential for redevelopment, and an analysis of the relationship of zoning 

and public facilities and services to these sites.” (§ 65583, subd. (a)(3).) This inventory of 

land “shall be used to identify sites that can be developed for housing within the planning 

period and that are sufficient to provide for the jurisdiction‟s share of the regional 

housing need for all income levels.”5(§ 65583.2, subd. (a).) The housing element must 

 

3

The state housing goal and a city or county‟s share is determined under section 65584, 

which requires the California Department of Housing and Community Development (the 

department) to “determine the existing and projected need for housing for each region” 

and for either the department or the appropriate council of governments to “adopt a final 

regional housing need plan that allocates a share of the regional housing need to each 

city, county, or city and county.” (§§ 65584, subds. (a), (b), 65584.05.) Each city or 

county‟s share of the regional housing need “shall include that share of the housing need 

of persons at all income levels within the area significantly affected by the general plan 

of the city or county.” (§ 65584, subd. (a)(1).) Section 65584, subdivision (e) defines 

very low, low, and moderate household income levels for the purpose of allocating shares 

of the regional housing need. 

4

The first paragraph of section 65583 provides generally: “The housing element shall 

consist of an identification and analysis of existing and projected housing needs and a 

statement of goals, policies, quantified objectives, financial resources, and scheduled 

programs for the preservation, improvement, and development of housing. The housing 

element shall identify adequate sites for housing, including rental housing, factory-built 

housing, mobile homes, and emergency shelters, and shall make adequate provision for 

the existing and projected needs of all economic segments of the community.”

5

Section 65588, subdivision (f)(1) defines “planning period” as “the time period between 

the due date for one housing element and the due date for the next housing element.”
4

also include “[a] statement of the community‟s goals, quantified objectives, and policies 

relative to the maintenance, preservation, improvement, and development of housing” 

(§ 65583, subd. (b)(1)), as well as “[a] program which sets forth a schedule of actions 

during the planning period, each with a timeline for implementation, . . . that the local 

government is undertaking or intends to undertake to implement the policies and achieve 

the goals and objectives of the housing element through the administration of land use 

and development controls, the provision of regulatory concessions and incentives, the 

utilization of appropriate federal and state financing and subsidy programs when 

available, and the utilization of moneys in a low- and moderate-income housing fund of 

an agency if the locality has established a redevelopment project area . . . .” (§ 65583, 

subd. (c).) The program “must identify a sufficient number of sites that will be made 

available through appropriate zoning and development standards to meet the quantified 

objectives for housing for all income levels. And if the program does not identify 

sufficient sites to satisfy the need for housing for all income levels, it must . . . identify 

sufficient sites to be zoned for multifamily housing for low and very low income 

residents.” (Fonseca, supra, 148 Cal.App.4th at p. 1183, citing §§ 65583, subd. (c)(1), 

65583.2, subd. (h).)6

“In creating [or revising] its housing element, the local government is required to 

consider the advisory guidelines adopted by the [department]. [Citation.] The locality is 

 

6

Section 65583, subdivision (c)(1) provides in relevant part that “the program shall . . . 

identify actions that will be taken to make sites available during the planning period with 

appropriate zoning and development standards and with services and facilities to 

accommodate that portion of the city‟s or county's share of the regional housing need for 

each income level that could not be accommodated on sites identified in the inventory 

completed pursuant to paragraph (3) of subdivision (a) without rezoning. . . . Where the 

inventory of sites, pursuant to paragraph (3) of subdivision (a), does not identify adequate 

sites to accommodate the need for groups of all household income levels . . . , the 

program shall identify sites that can be developed for housing within the planning period 

pursuant to subdivision (h) of section 65583.2.” Sites proposed for development under 

section 65583.2, subdivision (h) “shall be zoned to permit owner-occupied and rental 

multifamily residential use by right during the planning period” with specified minimum 

density and development standards. 
5

also required to submit draft housing elements or amendments to the department prior to 

adoption. [Citation.] The [d]epartment, in turn, must review drafts and make written 

findings as to whether the draft substantially complies with the requirements of [the 

housing element law]. [Citation.] The local government must then consider the 

[d]epartment‟s findings. [Citation.] If the findings reflect noncompliance in the 

[d]epartment‟s judgment, the locality must either change the draft, so that it substantially 

complies with [the housing element law], or adopt the draft without changes, explaining 

why the draft substantially complies despite the [d]epartment‟s findings. [Citation.] 

Under section 65589.3, the housing element (or its amendment) enjoys a rebuttable 

presumption of validity if the [d]epartment makes a finding that it substantially complies 

with the [statutory] requirements . . . . The statute does not provide for the converse, i.e., 

there is no presumption of invalidity on the basis of the [d]epartment‟s finding of 

noncompliance.” (Fonseca, supra, 148 Cal.App.4th at pp 1183-1184.)

B. Standard of Review

A housing element may be challenged by “any interested party” through a 

traditional mandamus action under Code of Civil Procedure section 1085. (§§ 65587, 

subds. (b), (d)(2), 65583, subd. (h).) When an interested party challenges a housing 

element, the trial court‟s review “ „shall extend to whether the housing element or portion 

thereof or revision thereto substantially complies with the requirements of [the housing 

element law].‟ [Citation.] „ “ „ “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.” ‟ [Citation.]” ‟ [Citations.] . . . 

[T]he court‟s role in determining a mandamus challenge to a locality‟s housing element is 

simply to determine whether the locality has satisfied statutory requirements. It is 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.” (Fonseca, supra, 148 Cal.App.4th at p. 1185; see also Black Property 

Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 978-980; Haro v. City of 

Solana Beach (2011) 195 Cal.App.4th 542, 550.)
6

On appeal, the appellate court independently determines as a question of law 

whether the housing element substantially complies with the requirements of the housing 

element law. (Fonseca, supra, 148 Cal.App.4th at p. 1191.) In our independent review of 

the legal adequacy of the housing element, we afford no deference to the trial court‟s 

conclusions. (Ibid.) “On the other hand, a city's adoption of a housing element is a 

legislative enactment, something which is generally entitled to some deference. There is a 

presumption that the adopted element is valid and we do not in the course of our review 

evaluate the municipality‟s determination of policy. [Citation.] The burden is on the 

challenger to demonstrate that the housing element, and by extension the general plan, is 

inadequate. [Citation.] 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 department‟s interpretation of the legal effect and meaning of the housing 

element law is also entitled to deference. (Fonseca, supra, 148 Cal.App.4th at pp. 1193-

1194 [court must “exercise our independent duty to state the meaning of the statutes at 

issue here, giving consideration to the [d]epartment‟s views”].) Any deference afforded 

the department‟s general statutory interpretation, however, does not necessarily extend to 

the department‟s specific findings—in this instance, that the county‟s housing element 

fails to substantially comply with the housing element law. “The [d]epartment‟s review 

of [a local government‟s] housing element differs from our judicial review. The 

[d]epartment reviews not only to ensure the requirements of 65583 are met, but also to 

make suggestions for improvements. . . . 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 [a] court may be of the opinion [the local government] should 

adopt [the] [d]epartment‟s recommendations, the Legislature has stated its 

recommendations are advisory.” (Buena Vista Gardens Apartments Assn. v. City of San 

Diego Planning Dept. (1985) 175 Cal.App.3d 289, 306, citing § 65585, subd. (a).)
7

C. Procedural and Factual History

In January 2008, the county initiated an update to the housing element of the 

county‟s general plan, for the period through 2014. As relevant to this action, the 

county‟s 2009 updated housing element seeks to identify sites that can accommodate 

development of 158 housing units affordable to households with very low incomes and 

an additional 101 units affordable to households with low incomes, 259 total units being 

the number allocated to the county as its “fair share” of regional housing needs. 

The county submitted a draft of its updated housing element to the department in 

November 2008 and in January 2009 received comments on the draft from the 

department. The department advised that revisions to the county‟s inventory and analysis 

were necessary to comply with the state housing element law and included an appendix 

detailing what it identified as deficiencies in the draft housing element. In June 2009, 

after making changes in its draft to address the department‟s comments, the county 

adopted its 2009 housing element.

The housing element includes an inventory of sites in the unincorporated portions 

of the county and indentifies 14 parcels in four areas that would be suitable for affordable 

housing, referred to as the “Angwin,” “Moskowite Corner,” “Spanish Flat” and “Napa 

Pipe” sites. The Napa Pipe sites sit adjacent to the City of Napa. The others are located 

“some distance from traditional employment centers like downtown Napa.” The Spanish 

Flat sites are located near Lake Berryessa. The Angwin sites are located east of 

Highway 29 between the cities of St. Helena and Calistoga. The Moskowite Corner sites 

are located at the intersection of Highways 121 and 128. The location of the four sites is 

depicted on the diagrammatic map attached to this opinion as an appendix. Angwin, 

Moskowite Corner, and Spanish Flat are all within the county‟s “Affordable Housing 

Combination District” (AHCD) zoning district. 7

 

7

The AHCD zone was established pursuant to the terms of an agreement between Latinos 

Unidos and the county settling a lawsuit filed in 2003 by Latinos Unidos challenging the 

county‟s prior housing element. With approval by the county the AHCD zoning permits the 

development of multifamily residential housing at a greater density than permitted by the zoning 

that otherwise would be applicable.
8

The inventory concludes that without any rezoning Angwin can accommodate 80 

housing units affordable to very low or low-income households, Moskowite Corner can 

accommodate 25 lower-income units, and Spanish Flat can accommodate 25 lowerincome housing units.8

The housing element includes a program to “rezone 20 acres of 

the Napa Pipe property to allow housing development at a minimum density of 20 

dwelling units per acre” and states that once rezoned, Napa Pipe can accommodate 

between 152 and 202 units that can be developed by right and an additional 102 to 152 

units that can be developed following approval of a use permit or development 

agreement. 

Approximately two months after the county approved the housing element, as 

amended to incorporate some of the department‟s recommendations, the department 

notified the county that the housing element was not yet fully satisfactory. The 

department explained that while the “adopted element addresses most of the statutory 

requirements of housing element law,” the inventory and analysis needed additional 

revisions in two respects, discussed below, to comply with the housing element law. The 

county has made no modifications to its housing element following this notification from 

the department.

D. The Record

Plaintiffs contend the trial court erred by requiring them to proceed on an 

administrative record and excluding additional evidence that they argue would have 

supported their challenge to the housing element. The county argues that the trial court 

 

8 Within the AHCD zone, some multifamily residential housing may be developed 

without discretionary approval by the county if the development meets underlying zoning 

standards for units per acre and a percentage of the housing units are set aside for 

affordable housing. Although greater density is permissible under the AHCD designation 

with a use permit, in response to the department‟s comments the housing element 

includes in its housing inventory only those units that may be developed by right. 

Because the housing element does not include in the inventory the number of units that 

might be constructed were a use permit obtained, we do not consider the county‟s 

argument on appeal that the housing element should be upheld based on the maximum 

density allowed by permit on the Angwin and Spanish Flat sites. 
9

properly applied Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 

571 in requiring the production of an administrative record and excluding consideration 

of information outside that record. 9

This court‟s review of the housing element involves two issues: whether it 

substantially complies with the housing element law (§ 65580 et seq.) and, if it does, 

whether the county‟s approval was arbitrary, capricious, or entirely lacking in evidentiary 

support. (Fonseca, supra, 148 Cal.App.4th at p. 1191.) While evidence outside the 

administrative record may be relevant to the question of substantial compliance (see 

Hernandez v. City of Encinitas (1994) 28 Cal.App.4th 1048, 1067), the latter question 

turns solely on the information known to the county at the time of its decision. (Western 

States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 571, 575-576.) Thus, 

while the court did not err in requiring preparation of the administrative record and 

limiting its consideration of the latter issue to evidence included in the record, the 

exclusion of some extra-record evidence relevant to compliance with the housing element 

law was not necessarily justified. We shall address the extra-record evidence proffered by 

plaintiffs in connection with the issues discussed below.

E. Analysis

Plaintiffs contend that the housing element fails to analyze correctly the suitability 

for residential development of the four identified sites, three of which are far removed 

from population centers and the fourth is part of a highly contaminated former industrial 

site. We first consider plaintiffs arguments regarding the Spanish Flat, Angwin and 

Moskowite Corner sites and then turn to their arguments regarding the Napa Pipe site and 

related Program H-4e. 

 

9 We have received and considered amicus curiae briefs from the California State 

Association of Counties and League of California Cities, and from Urban Habitat 

arguing, among other things, in support of and in opposition to the trial court‟s ruling 

limiting its consideration to the administrative record.
10

1. The Spanish Flat, Angwin and Moskowite Corner Sites

a. Suitability for Affordable Housing

Under section 65583.2, subdivision (c), the county is required to determine the 

housing capacity of the inventoried sites and determine the suitability of the sites for the 

development of affordable housing. Suitability for affordable housing can be determined 

in two ways. The county may rely on the presumption, found in section 65583.2, 

subdivision (c)(3)(B)(iii), that sites in suburban districts with zoning allowing densities of 

at least 20 units per acre are suitable for affordable housing. Or, for sites with zoning that 

allows less density, the county‟s housing element may “[p]rovide an analysis 

demonstrating how the adopted densities accommodate this need. The analysis shall 

include, but is not limited to, factors such as market demand, financial feasibility, or 

information based on development project experience within a zone or zones that provide 

housing for lower income households.” (§ 65583.2, subd. (c)(3)(A).) The department‟s 

June 9, 2005 “technical assistance” memorandum elaborates, “For example, information 

garnered from local developers and examples of recent residential projects that currently 

provide housing for lower-income households may be helpful in establishing the 

appropriateness of the zone. Also it is recognized that cities and counties rely on 

subsidies to increase the affordability of residential projects. However, identifying 

examples of low density subsidized projects, alone, is not appropriate to demonstrate the 

adequacy of a zone and/or density to accommodate the projected needs of lower-income 

households.” 

Angwin, Moskowite Corners and Spanish Flat are all zoned for densities 

considerably lower than 20 units per acre.10 Hence, the county was required to provide 

additional analysis as required by section 65583.2, subdivision (c)(3)(A). The housing 

element acknowledges that the density authorized by right for these three sites is lower 

than the default density but concludes nonetheless “that these sites will encourage and 

 

10 The by-right zoning at the Angwin sites is 10 or 11 units per acre; at the Moskowite 

Corner sites, three or four units per acre; and at the Spanish Flat sites, five units per acre. 
11

facilitate and are suitable for affordable housing production.” In support of this 

conclusion, the housing element relies on the analysis in the housing needs assessment, 

which “explains that affordable housing has historically been built in Napa County at 

densities below 20 dwelling units per acre, considers issues associated with the land costs 

and property ownership, the availability of affordable housing fund monies, as well as the 

opportunities provided by the AHCD zoning for by right development of mixed-income 

projects, wherein market-rate units cross subsidize the development costs for affordable 

units.” The assessment explains that due to the relatively low land values in the 

unincorporated portions of the county, affordable housing can be feasibly built at lower 

densities. Based on land costs for comparable development projects, the assessment 

concludes that at the lower densities applicable to the Moskowite Corner and Spanish 

Flats sites, the county would need to contribute $56,000 per unit to write down land costs 

to a level that would make development of affordable housing feasible. The assessment 

indicates that in a program labeled “H-2a,” which is part of the housing element, the 

county has committed to amend its affordable housing ordinance to prioritize the use of 

funds to assist affordable housing development at AHCD sites and that with 

approximately $8 million uncommitted in the county‟s affordable housing fund, the 

county has sufficient funds to subsidize development at these two sites. The assessment 

concludes that the cost of land at the Angwin sites would be less than at comparable 

affordable housing developments so that a subsidy should not be necessary but that, even 

if a subsidy is required, the county would have sufficient affordable housing fund dollars 

available after subsidizing development at Moskowite Corner and Spanish Flats to 

support development at Angwin as well.

Plaintiffs contend this analysis is not sufficient. They assert that although the 

county recognizes that the Moskowite Corner and Spanish Flats sites require a substantial 

subsidy from the county to be developable as affordable housing, the county has not 

committed to any such subsidy. However, the county need not commit to any specific 

subsidy, particularly since the county has demonstrated it has sufficient funds in its 

affordable housing trust fund to cover projected subsidies and has proposed a program to 
12

prioritize funding for these projects. (See Buena Vista Gardens Apartments Assn. v. City 

of San Diego Planning Dept., supra, 175 Cal.App.3d at pp. 300-301 [rejecting argument 

that city‟s statement that it “may” offer land for development lacks a firm commitment 

where total capacity exceeded city‟s housing needs for five-year period]; Hernandez v. 

City of Encinitas, supra, 28 Cal.App.4th at pp. 1068-1069, [rejecting argument that 

housing element lacks “meaningful assurances” on ground that overall language reflects 

city‟s intent to implement programs.) 

Plaintiffs also rely on the department‟s assertion that, even as amended, the 

county‟s analysis fails to comply with state law. The notice sent by the department after 

reviewing the finalized housing element explains: “The adopted element includes 

information on the level of subsidy required at lower densities in the Angwin, Spanish 

flat and Moskowite Corner areas. However, the element does not compare this to the 

level of subsidy with higher densities and the analysis does not demonstrate densities that 

encourage the development of housing affordable to lower-income families. For example, 

holding a subsidy amount constant, the element does not describe how many units could 

be supported at higher densities compared to the proposed lower densities. It is 

recognized that housing affordable to lower-income households requires subsidies and 

financial assistance. However, for the purpose of the adequate sites analysis and the 

appropriateness of zoning, identifying examples of lower density subsidized housing 

projects or densities necessitating significantly more subsidies is not sufficient or 

appropriate to demonstrate the adequacy of a zone and/or density to accommodate the 

housing affordable to lower-income households.” We disagree. 

The county is under no statutory obligation to consider the effects of by-right 

zoning at a density greater than necessary to accommodate its fair share of regional 

housing needs at the identified sites. Although greater density might better encourage 

development of affordable housing, we are in no position to judge the effectiveness or 

wisdom of the county‟s choices. (Buena Vista Gardens Apartments Assn. v. City of San 

Diego Planning Dept., supra, 175 Cal.App.3d at p. 302 [to find that the city “might be 

able to adopt other and, perhaps, more effective programs would be to review the merits 
13

of the program” which is “not the appellate court function”].) Moreover, the county has 

done more than merely identify examples of lower density subsidized housing projects. 

Its analysis demonstrates that subsidized housing at the identified sites is fiscally feasible. 

Accordingly, the county has complied with the requirements of section 65582.2, 

subdivision (c)(3)(A).

b. Infrastructure

Section 65583, subdivision (a)(3) requires the county to consider the availability 

of “public facilities and services” in its inventory and analysis of suitable sites for 

residential development. According to the department, “The element must include a 

general description of existing or planned water, sewer, and other dry utilities supply, 

including the availability and access to distribution facilities, and indicate whether public 

or private. A site specific analysis is not required. The element must include sufficient 

detail to determine whether water delivery systems and sewer treatment capacity is or 

will be (i.e., within the planning period) available to the identified sites. However, if 

parcel specific detail is available, this information could be included in the element.” 

(Dept. of Housing and Community Development, mem., June 9, 2005.) 

Here, the housing element acknowledges that the inventoried sites do not currently 

have water and sewer services available onsite but “assume[s] that either infrastructure 

will be extended to serve the sites, or new community systems will be constructed to 

serve the new development.” Plaintiffs argue that this assumption is unsupported. We 

disagree.

The housing assessment conducted by the county includes an extensive analysis of 

the infrastructure challenges facing housing development at the identified sites and 

potential solutions. The assessment acknowledges that the lack of adequate water and 

sewer service poses major constraints to housing development and that because the 

county is not a provider of these services, it is dependent on cities and special districts to 

serve new development. With respect to the Angwin area, the assessment indicates that 

existing development is served through septic systems and private providers, including 

the Pacific Union College water and wastewater treatment system, and that the nearby 
14

college is currently planning to expand its facility which, when completed, will be 

sufficient to service the proposed new development. The assessment acknowledges that 

the Spanish Flat Water District, which would serve the sites in the Spanish Flat area, is 

currently operating at capacity, but explains that the water district has rights to additional 

water from Lake Berryessa, so that extending service to the proposed sites should not be 

problematic. Likewise, although the sewer treatment facility would need to be expanded, 

distribution costs would be minimal because of the proximity of the sites to the treatment 

facility. With respect to the Moskowite Corner sites, the assessment states that their water 

needs would likely be met by the Cappell Valley Water District, which recently built a 

new water treatment facility. Because there is no waste water utility in that area, new 

development would be served by septic systems. The county‟s analysis reasonably 

supports the determination that either existing infrastructure will be extended to serve the 

sites, or new community systems will be constructed to serve the new development.

c. Environmental Considerations

Plaintiffs contend that the housing element fails to address the environmental 

constraints that interfere with the ability to construct affordable housing at Moskowite 

Corner and Spanish Flat. With respect to Moskowite Corner, plaintiffs argue that 

wetlands reduce development capacity to such an extent that the site is insufficient to 

accommodate the development of affordable housing. The housing element, however, 

takes the wetlands into consideration in determining that the site can support 25 

affordable housing units. As discussed above, the housing element explains why the 

county believes that development of affordable housing is fiscally feasible at this site 

with subsidies from the affordable housing trust.

Plaintiffs contend the county failed to include information about contamination at 

the Spanish Flat sites. The EIR prepared for the housing element update, however, 

indicates that most of the Spanish Flat sites are not included on the county list of 

contaminated sites. Therefore, the county argues, there will be no impact from hazardous 

materials associated with housing construction at these sites. Two Spanish Flat sites were 

contaminated by gasoline leaks from an underground storage tanks and are designated as 
15

hazardous materials sites. The county points out that it owns one of those sites and, thus, 

can ensure clean-up before development, and that remediation of the remaining site has 

already been largely undertaken. The EIR includes as a mitigation measure the 

requirement that the contamination be remediated prior to development of any housing on 

these sites. Thus, we perceive no deficiency in the housing element‟s analysis in this 

respect.

d. Non-vacant Land

For non-vacant sites included in the inventory, the county must include “a 

description of the existing use of each property” and “specify the additional development 

potential for each site within the planning period and . . . provide an explanation of the 

methodology used to determine the development potential. The methodology shall 

consider factors including the extent to which existing uses may constitute an impediment 

to additional residential development, development trends, market conditions, and 

regulatory or other incentives or standards to encourage additional residential 

development on these sites.” (§ 65583.2, subds. (b)(3), (g).)

With respect to the non-vacant parcels of Spanish Flat, the housing element 

acknowledges that the present owners have not expressed an interest in selling or 

developing their property. The assessment concludes, however, that incentives can be 

provided as the economy improves to encourage development. The assessment explains, 

“Sites C, E and F in the Spanish Flat area are currently used for RV and boat storage. The 

investments in the site improvements associated with these commercial uses are limited, 

suggesting that it would not take significant financial incentive to encourage their reuse 

for housing. . . . Furthermore, as explained below, housing market conditions are 

expected to be conducive to site redevelopment versus maintaining the sites in these 

marginal commercial uses. . . . [¶] The potential attractiveness or market demand for 

development of the Spanish Flat sites is based on future expansion of recreational uses at 

Lake Berryessa per the Federal government‟s desire to find a suitable vendor to 

redevelop the resorts at the lake. While businesses around the lake may be operating at a 

modest level at best, it is anticipated that once the contract with a resort developer is 
16

secured, which was anticipated in 2008, and construction begins that revitalizes the 

economy in eastern Napa County, the properties with the AHCD zoning will become 

more attractive for housing development.” Accordingly, the county provided a sufficient 

basis for its determination that the Spanish Flat sites have development potential. 

(§ 65583.2, subds. (b)(3), (g).)

2. The Napa Pipe Site and Program H-4e.

a. Suitability for Affordable Housing

In order to meet its share of the regional housing needs for very low, low and 

moderate income households, the county included Program H-4e in the housing element. 

This program calls for the county to “rezone 20 acres of the Napa Pipe property to allow 

housing development at a minimum density of 20 dwelling units per acre for 304 dwelling 

units with associated public open space and neighborhood serving retail.” 11 As noted 

above, section 65583.2, subdivision (c)(3)(B)(iii) includes a presumption that sites in 

suburban districts with zoning allowing densities of at least 20 units per acre are suitable 

for affordable housing. 

Plaintiffs contend that the county relied improperly on the default density under 

section 65583.2, subdivision (c)(3)(B)(iii) and that the 20-acre site at Napa Pipe does not 

have development potential under Program H-4e. The 20 acres are part of a much larger 

parcel which the current owner, Napa Redevelopment Partners LLS, is seeking to 

develop. Because the larger parcel is badly contaminated due to prior industrial usage, 

more time will be required before the proposed development of the full parcel can be 

considered and approved. The 20 acres within the larger parcel, however, are not 

contaminated. Plaintiffs argue that even if the county rezones the 20 acres, the small size 

of the potential development in relation to the 150-plus-acre planned community 

 

11 Contrary to plaintiffs‟ suggestion, the housing element is not fatally unclear or 

ambiguous as to what portion of the Napa Pipe site will be rezoned. Although the site 

consists of two very large parcels, the housing element indicates that the portion to be 

rezoned will be within the Airport Compatibility Zone E. Moreover, the county has 

indicated that the 20 acres will be located adjacent to the city‟s corporate park.
17

proposed by the developer is inadequate to make the affordable housing projects fiscally 

feasible. Plaintiffs rely on a letter submitted to the department by the property owner that 

opines, “No developer would ever go forward with development or the subdivision and 

sale of such a small portion of the Napa Pipe site for residential development of any kind 

because of the massive upfront remediation and infrastructure costs necessary to 

construct housing, including the substantial pollution legal liability challenges arising 

from segmenting the property in the manner proposed. Furthermore, even with a 

conventional site (with no remediation requirements and all infrastructure in place), it is 

not „realistic‟ to expect that any private property owner would produce stand-alone 

project with 50% or more of the housing units designated affordable. Nor is it any more 

realistic to imagine that a non-profit housing organization would be able to purchase a 

portion of the Napa Pipe property for such a purpose.” An email from the proposed 

developer of the larger planned community concurs in the opinion that the small portion 

of the Napa Pipe site proposed to be rezoned by the county is “too small and incomplete 

to actually be a feasible remediation and master-plan development project which an 

actual land developer would implement.” He faults the county for including only phase I 

of the development in the housing element rather than addressing “the issue in a realistic 

way — by rezoning the entire site, and putting in place a measured, long-term phasing 

plan.”

Initially, we reject plaintiffs‟ challenge to the county‟s reliance on the statutory 

presumption to establish suitability for affordable housing. Program H-4e expressly 

requires the county to rezone the site at a minimum density of 20 units per acre. Section 

65583.2, subdivision (c)(1) requires the department to accept the county‟s calculation of 

the total housing unit capacity on that site based on the established minimum density.12

The county recognizes that only 15 acres are needed to accommodate 304 units at the 

 

12 Section 65583.2, subdivision (c)(1) provides: “If local law or regulations require the 

development of a site at a minimum density, the department shall accept the planning 

agency's calculation of the total housing unit capacity on that site based on the 

established minimum density.”
18

minimum required density but chose to rezone 20 acres to allow greater flexibility in 

locating units and to allow room for open space and neighborhood retail. The fact that the 

program calls for rezoning more acres than necessary to yield the required number of 

units does not preclude reliance on the minimum density requirement to establish 

suitability. Having properly relied on the statutory presumption, the county is not 

required to include an analysis of the fiscal feasibility of its program.

Nonetheless, the county does include additional information in support of its 

conclusion that the Napa Pipe site, as rezoned under Program H-4e, will be suitable for 

development of affordable housing. The housing element explains that “market demand 

for housing at this location is anticipated to be strong, due to proximity to the job center 

in the Napa Airport industrial area specific plan, as well as proximity to jobs in the 

adjacent City of Napa.” The housing element acknowledges that the larger development 

plan is already pending before the county and preparation of an environmental impact 

report is underway. As stated in the housing element, “because the development proposal 

would take many years to build out and urban services are immediately available to only 

a portion of the site, only the first phase of the proposal (20 acres total) was included in 

the inventory of sites suitable to accommodate lower-income housing needs.” The 

housing element explicitly recognizes that the financial feasibility of the affordable 

housing project is “predicated on execution of a development agreement regarding buildout of entire site in multiple phases.” Thus, timing aside (discussed in section c, post), the 

housing element properly considers the financial feasibility and suitability of the 20-acre 

Napa Pipe site for low cost housing.13

b. Infrastructure

Plaintiffs also challenge the county‟s analysis of infrastructure at the Napa Pipe 

site. The housing needs assessment, however, notes that the site has sufficient 

groundwater and that the Napa Sanitation District can provide the treatment and 

 

13 In light of this conclusion, any potential error in excluding the correspondence from the 

owners and prospective developer of the larger site, opining that development of the 

smaller site alone is not feasible, is harmless. 
19

distribution services necessary to utilize the supply of groundwater. Additionally, the 

City of Napa has indicated that it is willing to work with the county to provide necessary 

services to the 20 acres included in the inventory. The housing element also includes 

program “H-2l,” which will allow use of the affordable housing trust fund for 

infrastructure assistance. Accordingly, the county‟s analysis of the infrastructure needs at 

the property complies with state requirements.

c. Environmental Considerations 

Plaintiffs argue that due to the significant environmental contamination of the 

larger Napa Pipe parcel, which will require substantial remediation prior to development, 

it is unlikely that development of the 20-acre portion of that parcel can be completed 

within the planning period. The housing element recognizes that the contamination poses 

a significant constraint on development of the full Napa Pipe parcel. Experts for the 

county have concluded, however, that the smaller 20-acre portion selected for rezoning in 

the housing element is “absent substantial environmental impacts” and “not subject to ongoing regulatory oversight, and active remedial measures are not anticipated for those 

portions of the [area].” 

Plaintiffs argue that this piecemeal approach is not realistic. Plaintiffs rely on 

concerns expressed by the department, which explained, “the element does not address 

the potential effects of contamination and necessary remediation on the suitability and 

availability of the Napa Pipe for development in the planning period. Based on comments 

received pursuant to Government Code section 65585(c), the department understands an 

environmental clean-up plan is pending approval with the regional Water Quality Board 

but the plan and potential availability of the site in the planning period is based on 

entitlement for residential development much larger than the 20 acres proposed in 

Program H-4E. Environmental cleanup and the availability of the Napa Pipe site for 

development in the planning period may not be feasible if Program H-4E is limited to 20 

acres. [¶] As a result the element should include an analysis of the suitability and 

availability of the Napa Pipe site specific to remediation impacts on development 

feasibility in the planning period. Based on this discussion, the element may require 
20

additional or revised programs as appropriate to facilitate residential development 

capacity at appropriate densities sufficient to accommodate the shortfall of 259 units 

affordable to lower-income households in the planning period. For example, the element 

could revise Program H-4E to rezone a sufficient amount of land to allow remediation 

and development of the site in the planning period in addition to rezoning 20 acres to 

address the shortfall of sites.” 

The department‟s opinion relies in part on a letter written on behalf of the owner 

of the Napa Pipe parcel, which asserts that “there is no clean-up plan geared toward the 

20-acre/300-unit scenario. The only plan that has been prepared, much less approved 

would bring about thorough cleanup in all the significantly impacted areas of the whole 

site” and that preparing a “technically sound cleanup plan” for the smaller 20-acre site 

would require new analysis, a new public comment period and would not necessarily be 

approved by the regional Water Quality Control Board. Napa Redevelopment Partners 

LLS was also concerned that if a scaled-back clean up approach was adopted and the 

housing developed, further site remediation would be “highly problematic on account of 

the potential dust, noise and fume impacts to the residents.” 

To further support their argument that the 20-acre parcel cannot be developed 

within the planning period, plaintiffs proffered the declaration of Joshua Simon in which 

he expresses concern that the contamination of the larger site will make it difficult to 

obtain financing for the smaller development project. “Given that a portion of the site has 

tested as „clean‟ from an environmental standpoint, it would appear that this portion of 

the site may be available for development. However, I know that many lenders may be 

concerned, even if the site has remained uncontaminated, about the possibility of 

contamination of the clean portion of the site from the portions of the site that are 

contaminated. Certainly, it would be much easier for an affordable housing development 

to proceed if the county permitted the remediation and development of the entire site as 

the developer has planned. Parsing out the portions of the site the county deems 
21

acceptable for development would make it difficult for the developer of the sites to obtain 

financing and would probably add cost if the lender required any guarantee.” 14

Assuming that development of the 20-acre parcel will in fact be delayed beyond 

the planning period because of the remediation needs of the surrounding land, the 

housing element is not for that reason in noncompliance with state law. Section 65583, 

subdivision (c)(1) requires the county to adopt a program that will “[i]dentify actions that 

will be taken to make sites available during the planning period with appropriate zoning 

and development standards and with services and facilities to accommodate that portion 

of the city's or county's share of the regional housing need for each income level.” 

Program H-4e within the housing element requires rezoning of the 20 acres, which are 

not contaminated and do not require remediation. By rezoning during the planning period 

the county will have made the 20 acres available so that they can be developed. The 

housing law does not require full development of the site to be completed within the 

planning period. (Fonseca, supra, 148 Cal.App.4th at pp. 1206-1207 [“while the element 

does not express that its programs and action items will yield the desired results soon 

enough in the planning period to permit full development within that period, these were 

not required for substantial compliance with the statute”].) If delay results from the 

present developer‟s plan to develop the larger parcel, such delay does not establish a lack 

of compliance with the Housing Element Law.

While there may well be a sound basis for the plaintiffs‟ concerns, we cannot say 

the county‟s approach fails to comply with the minimum statutory requirements or is 

arbitrary. As discussed more fully below, nothing in the record suggests there are 

alternative sites that the county could realistically designate for development of low cost 

housing within the planning period. The plan to develop the full Napa Pipe site promises 

to bring significant affordable housing to the area, and there is no suggestion that these 

 

14 Simon‟s declaration was among the evidence that the trial court ruled could not be 

considered. Assuming the exclusion of the declaration to have been in error and the 

opinions he expressed to be sound, there was no prejudice because, for the reasons that 

follow, nothing included in the declaration shows that the housing element failed to 

comply with the statute.
22

efforts are not progressing as fast as reasonably possible. By making the smaller acreage 

available for development before the remaining property is available, the county complies 

with the requirements of state law while proceeding apace with the steps necessary to 

achieve the ultimate objective of constructing the needed low cost housing units. The 

county‟s action does not reflect an abuse of discretion. (Fonseca, supra, 148 Cal.App.4th 

at pp. 1206-1207, Hernandez, supra, 28 Cal.App.4th at p. 1068.)

F. Conclusion

In summary, we conclude that the county‟s housing element substantially 

complies with the requirements of the state Housing Law and does not constitute an 

abuse of discretion. Without minimizing plaintiffs‟ well founded concern over the lack of 

affordable housing within the county, and for the failure to have increased this housing 

stock over a prolonged period, we cannot say that the county‟s housing element does not 

comply with the minimum mandates of state law. 15

II. Density Bonus Law

In 1979, the Legislature enacted the Density Bonus Law, section 65915, which 

aims to address the shortage of affordable housing in California. (Friends of Lagoon 

Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 823.) “Although application of 

the statute can be complicated, its aim is fairly simple: When a developer agrees to 

construct a certain percentage of the units in a housing development for low or very low 

 

15 Our conclusion should not be read as an endorsement of the county‟s plan to encourage 

the development of affordable housing. Under the applicable standard of review the court 

must determine whether the county‟s housing element substantially complies with the 

minimum requirements of state law, but the court may not review the merits of the 

county‟s policy determinations. Substantial compliance with the Housing Element Law, 

however, does not insulate the county against claims of housing discrimination. We 

conclude in section III, post, that the trial court correctly rejected plaintiffs‟ current 

claims of discrimination, in part because of their failure to identify any specific action or 

inaction by the county that can be deemed to have had a discriminatory impact. Should 

the county renew its housing element with knowledge that there is no realistic possibility 

that it will result in the actual development of affordable housing—because, for example, 

it rezones too small a portion of the Napa Pipe area to make such development feasible—

such action might well provide evidence of proscribed discrimination.
23

income households, or to construct a senior citizen housing development, the city or 

county must grant the developer one or more itemized concessions and a “density bonus,” 

which allows the developer to increase the density of the development by a certain 

percentage above the maximum allowable limit under local zoning law. [Citation.] In 

other words, the Density Bonus Law „reward[s] a developer who agrees to build a certain 

percentage of low-income housing with the opportunity to build more residences than 

would otherwise be permitted by the applicable local regulations.‟ ” (Id. at p. 824, citing 

§ 65915, subds. (a), (b).) To ensure compliance with section 65915, local governments 

are required to adopt an ordinance establishing procedures for implementing the 

directives of the statute. (§ 65915, subd. (a).)16

In 2010, the county amended its ordinance implementing the state Density Bonus 

Law. (Napa County Mun. Code, § 18.107.150.) The county‟s new density bonus 

ordinance provides in relevant part: “This section describes those density bonuses 

provided pursuant to Chapter 4.3 (commencing with Section 65915) of Division 1 of 

Title 7 of the Government Code. These density bonuses shall be provided, at the request 

 

16 Section 65915 provides in relevant part: “(a) When an applicant seeks a density bonus 

for a housing development within, or for the donation of land for housing within, the 

jurisdiction of a city, county, or city and county, that local government shall provide the 

applicant with incentives or concessions for the production of housing units and child 

care facilities as prescribed in this section. All cities, counties, or cities and counties shall 

adopt an ordinance that specifies how compliance with this section will be implemented. 

. . . [¶] (b)(1) A city, county, or city and county shall grant one density bonus, the amount 

of which shall be as specified in subdivision (f), and incentives or concessions, as 

described in subdivision (d), when an applicant for a housing development seeks and 

agrees to construct a housing development, excluding any units permitted by the density 

bonus awarded pursuant to this section, that will contain at least any one of the following: 

[¶] (A) Ten percent of the total units of a housing development for lower income 

households, as defined in Section 50079.5 of the Health and Safety Code. [¶] (B) Five 

percent of the total units of a housing development for very low income households, as 

defined in Section 50105 of the Health and Safety Code. [¶] . . . [¶] (D) Ten percent of 

the total dwelling units in a common interest development as defined in Section 1351 of 

the Civil Code for persons and families of moderate income, as defined in Section 50093 

of the Health and Safety Code, provided that all units in the development are offered to 

the public for purchase.”
24

of an applicant, when that applicant provides target units in addition to the affordable 

units required by Section 18.107.080 and otherwise complies with the requirements of 

this chapter.” Section 18.107.080, which was enacted at the same time, added an 

“inclusionary requirement” which requires up to 20 percent of new dwelling units in a 

residential development project be made available at prices affordable to moderateincome households. (Napa County Mun. Code, § 18.107.080(A).) Section 18.107.080(D) 

of the Napa County code reiterates that “units that qualify a project for a density bonus 

pursuant to Government Code section 65915 and section 18.107.150 must be provided in 

addition to the affordable units required by this section and do not meet the affordable 

housing requirements contained in this section.” 

Soon after its adoption, plaintiffs amended their complaint in this action to include 

a cause of action alleging that the county‟s amended density bonus ordinance conflicts 

with the state Density Bonus Law. Plaintiffs allege that the county ordinance 

impermissibly requires the developer to include a higher percentage of affordable units 

than section 65915 requires in order to obtain a density bonus.17 The ordinance does so 

 

17 Plaintiffs also argue that the county ordinance impermissibly (1) requires long term 

affordability covenants on moderate-income units; (2) requires a developer to build at a higher 

density that allowed by the zoning code in order to qualify for incentives; and (3) restricts 

concessions and incentives and requires unduly burdensome documentation to receive a density 

bonus. The trial court refused to consider these arguments, finding that plaintiffs had failed to 

exhaust their administrative remedies with respect to them, as required by section 65009, 

subdivision (b)(1), which provides that except in limited inapplicable exceptions, “[i]n an action 

or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a 

public agency made pursuant to this title at a properly noticed public hearing, the issues raised 

shall be limited to those raised in the public hearing or in written correspondence delivered to the 

public agency prior to, or at, the public hearing.” We agree with the trial court. On appeal, 

plaintiffs have not identified any specific reference in the documents submitted to the board in 

which they raised these issues. Rather, they claim that they submitted a letter to the board which 

“[i]n addition to raising specific concerns regarding the issue involving the inclusionary units,” 

. . . “states that it is „important that whatever ordinance the county adopts be fully consistent with 

[§ 65915.]‟ [Citation.] The letter attached an article describing the requirements of § 65915. 

[Citation.] In addition, a sample density bonus ordinance for another jurisdiction was included as 

a model for the language that should be incorporated in the Napa County Ordinance.” More was 

required to advise the county that plaintiffs contend the draft ordinance impermissibly imposed 

the additional restrictions and requirements now challenged. Accordingly, we consider only 
25

by excluding from the target units necessary to qualify for the density bonus those units 

necessary to satisfy the county‟s inclusionary requirement. “For example, while under 

state law, density bonuses, concessions and incentives must be allowed where a 

developer agrees to restrict 10% of the project‟s units to lower-income households, under 

the county‟s ordinance, a developer only qualifies when it has restricted at least 22% of a 

projects units to lower-income households.” Plaintiffs contend the county‟s ordinance 

places a greater burden on developers than is permissible under state law. We agree.

In Friends of Lagoon Valley v. City of Vacaville, supra, 154 Cal.App.4th at p. 823, 

this court considered essentially the opposite situation, holding that the City of Vacaville 

could in its discretion award a greater density bonus than the bonus required by section 

65915. We explained, “Although the calculations described are complicated, in our view 

the language of Section 65915 is clear and unambiguous. If a developer agrees to 

dedicate a certain percentage of the overall units in a development to affordable or senior 

housing, the Density Bonus Law requires the municipality to grant the developer a 

density bonus of at least a certain percentage, ranging from a low of 5 percent (for 

moderate income housing) or 20 percent (for senior and all other affordable housing) to a 

maximum of 35 percent, depending on the number of affordable housing units provided 

over the minimum number necessary to qualify for a bonus. [Citation.] Because the 

statute imposes a mandatory duty on local governments, and provides a means for 

developers to enforce this duty through civil proceedings [citation], it is clear that 35 

percent represents the maximum amount of bonus a city is required to provide, not the 

maximum amount a developer can ever obtain. The entire aim of Section 65915 is to 

provide incentives to developers to construct housing for seniors and low income 

families. [Citation.] It would undermine this policy to interpret subdivision (g) as 

imposing an absolute cap, since such a rule would prevent developers from negotiating to 

obtain a higher density bonus in exchange for including even more low income or senior 

housing than is provided for in Section 65915.” (Id. at pp. 825-826.) This court also 

 

plaintiffs‟ argument that the ordinance conflicts with state law by requiring a higher percentage 

of affordable units for a density bonus than required by section 65915.
26

rejected the argument that “a municipality must enact an ordinance any time it wishes to 

provide more of a density bonus than is required by state law.” (Id. at p. 826.) We 

explained that “setting up an additional hurdle for municipalities to clear (i.e., passing an 

ordinance) under these circumstances would be contrary to the spirit of the Density 

Bonus Law, which is designed to encourage, even require, incentives to developers that 

construct affordable housing.” (Ibid.) Accordingly, this court has recognized that section 

65915 imposes a clear and unambiguous mandatory duty on municipalities to award a 

density bonus when a developer agrees to dedicate a certain percentage of the overall 

units in a development to affordable housing. (Ibid.) 

The county‟s attempt to distinguish Friends of Lagoon Valley v. City of Vacaville, 

supra, is not persuasive. The county argues that although it may be clear that the statute 

imposes no cap on how much of a density bonus may be granted by a local entity, there is 

an ambiguity as to whether the local authority may increase the percentage of affordable 

housing units necessary to qualify for a density bonus. The county argues that the words 

“seeks and agrees” in section 65915, subdivision (b) imply that the county has discretion 

to set the minimum requirements for a density bonus. The key sentence on which this 

argument is based reads: “A city, county, or city and county shall grant one density bonus 

. . . and incentives or concessions . . . when an applicant for a housing development seeks 

and agrees to construct a housing development” with certain percentages of affordable 

housing. (§ 65915, subd. (b).) The county argues, “The definitions of both „seek‟ and 

„agree‟ connote action that is discretionary and volitional, rather than mandatory, and 

support the county‟s requirement that a developer go above and beyond the minimum to 

receive any density bonus.” To resolve this purported ambiguity, the county suggests we 

consider the legislative history of recent amendments of the statute.

Before resorting to legislative history, however, there must in fact be an ambiguity 

in the words of the statute. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) While the 

language “seeks and agrees to construct” does indeed include a volitional aspect, 

“affording the words of the provision their ordinary and usual meaning and viewing them 

in their statutory context” (ibid.), that language plainly refers to the voluntary nature of 
27

the developer‟s decision to seek permission and agree to proceed with a project 

dedicating a portion of the development to affordable housing. There is no implication in 

this language that the developer must seek and agree to do more than required by local 

ordinances, including any inclusionary requirement for affordable housing. Indeed, 

allowing the county to increase the minimum number of affordable units required for a 

density bonus would conflict with subdivision (f), which bases the amount of density 

bonus on the percentage of affordable housing units in the project. (§ 65915, subd. (f).) 

Were there any ambiguity, the legislative history provides little help in clarifying 

it. Although the legislative history does indicate that some legislators sought to impress 

the county‟s interpretation into the statute, others disagreed. The exchange within the 

Legislature is at best inconclusive. As explained in the trial court‟s discussion of the 

legislative history, “When Government Code section 65915 was amended in 2005, the 

original bill was initially amended to delete the phrase „seeks and agrees to construct.‟ 

Ultimately, however, the language was reinserted into the bill and included in the statute 

as amended. An analysis of the third reading of the bill as amended on August 18, 2005, 

notes specifically that the „seeks and agrees to construct‟ language that was added back to 

the bill on June 21, 2005 „was intended to clarify that these density bonus requirements 

only apply when either: 1) a local government does not have an inclusionary housing 

ordinance or 2) an applicant proposes to include affordable units over and above those 

required by a locally adopted ordinance. That amendment was adopted by the Assembly 

Housing Committee to clarify that issue.‟ [¶] Contrarily, a senate floor analysis prepared 

on August 22, 2005, states that the Assembly amendment reinserting the „seeks and 

agrees to construct‟ language „means that any affordable housing units in a development

count toward meeting density bonus requirements, regardless of whether or not 

affordable units are required to be constructed by the local government pursuant to a local 

ordinance.‟ However, another Senate Floor analysis, prepared by apparently the same 

person 7 days later, deletes the foregoing interpretation from the analysis. It also includes 

the following argument by the author of the bill in support of it: [¶] „When AB 435 was 

heard in the Assembly Housing and Community Development Committee the bill was 
28

amended in order to not place the bill at risk. One of the amendments restored the law 

pertaining to subdivision (b)(1). This subdivision relates to whether an applicant “agrees” 

to construct affordable units. My statement before the committee concerning the 

amendment was: „. . . A handful of local jurisdictions have argued since 1979 that the 

density bonus law does not apply until inclusionary requirements have been met. The vast 

majority of cities, counties and experts take the opposite view, as do I. By adding back 

language that has been the law since 1979 [the “seeks and agrees to construct”], we will 

enable this handful of jurisdictions to continue to make their strained argument, but that 

is not troubling because the language has consistently been interpreted for 25 years by the 

vast majority of cities, counties and experts to mean that inclusionary requirements count 

toward meeting density bonus requirements.” ‟ ” 

We conclude that the interpretation of “the vast majority of cities, counties and 

experts” correctly reflects the plain meaning of the statutory language. The county‟s 

ordinance which fails to credit low cost units satisfying the county‟s inclusionary 

requirement toward satisfying the density bonus requirements fails to comply with the 

state law. To the extent the ordinance requires a developer to dedicate a larger percentage 

of its units to affordable housing than required by section 65915, the ordinance is void. 

(Friends of Lagoon Valley v. City of Vacaville, supra, 154 Cal.App.4th at p. 830 [An 

otherwise valid local ordinance that conflicts with the state Density Bonus Law is 

preempted.]; Sherwin–Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897 

[“ „If otherwise valid local legislation conflicts with state law, it is preempted by such law 

and is void.‟ ”].) 

The county suggests that if the ordinance is otherwise invalid, the ordinance is 

“saved” by the provision in section 18.107.190 that states, “If any section of this chapter 

conflicts with Government Code Section 65915 or other applicable state law, state law 

shall supersede this chapter.” It argues, “if application of the ordinance to any specific 

development proposal conflicts with the state Density Bonus Law, the county may not 

enforce it” and “[f]or this reason alone, this court may affirm the judgment.” 
29

The county relies on Shea Homes Ltd. Partnership v. County of Alameda (2003) 

110 Cal.App.4th 1246, 1265-1266. In that case, the court rejected a claim that a local 

agriculture and open space measure adopted by popular vote conflicted with the state 

density bonus law. The court reasoned that while the challenged measure required the 

county to meet its state-imposed housing obligations in a particular portion of the county, 

it also “specifically states that none of its provisions shall be applied so as to preclude the 

County‟s compliance with state law housing obligations” and the measure included two 

mechanisms to ensure compliance with those housing obligations if the restrictions 

adopted by the measure should prevent it. (Id. at pp. 1265-1266.) The “savings” provision 

included in the county‟s ordinance in the present case, however, does no more than state 

the truism that state law prevails over conflicting local law. Section 18.107.190 does not 

modify any particular provision of the local ordinance nor does it identify any provision 

of state law that controls under any particular circumstances. Persons reading the 

ordinance without the benefit of a legal opinion as to the extent of its validity would 

understand that units satisfying the inclusionary requirement do not count towards the 

number of units necessary to qualify for the density bonus. Since that requirement does 

violate the statute, a writ of mandate should be issued to require its removal from the 

ordinance. 

III. Housing Discrimination

Plaintiffs assert housing discrimination claims under three statutes: 42 United 

States Code section 3604, subdivisions (a) and (f) of the Fair Housing Act, which makes 

it unlawful to “make unavailable or deny[] a dwelling to any person because of race” or 

because of a household member‟s disability; section 12955, subdivision (l) of the 

California Fair Employment and Housing Act, which makes it unlawful to discriminate 

through public or private land use practices, including the use of zoning laws to “make 

housing opportunities unavailable” because of race or disability; and section 65008 of the 

Planning and Zoning Law, which invalidates planning actions that “den[y] to any 

individual or group of individuals the enjoyment of residence” because of their race or 

disability, and makes it unlawful for a county “in the enactment or administration of 
30

ordinances pursuant to any law” to “discriminate against any residential development . . . 

[b]ecause the development . . . is intended for occupancy by persons and families of very 

low, low, or moderate income . . . .” In the context of the land use and zoning policies at 

issue in this case, the three statutes govern essentially the same activities in the same way 

and require similar proofs. (Keith v. Volpe (9th Cir. 1988) 858 F.2d 467, 485; The 

Committee Concerning Community Improvement v. City of Modesto (9th Cir. 2009) 583 

F.3d 690, 702). The statutes have been broadly construed “to encompass actions by 

individuals or government units that affected the availability of housing to [protected 

classifications].” (Jackson v. Okaloosa County, Fla. (11th Cir. 1994) 21 F.3d 1531, 1542, 

fn. 17.)

Initially, we reject plaintiffs‟ contention that the court construed their claims too 

narrowly, assertedly failing to consider the impact of the county‟s “overall zoning 

scheme.” The trial court‟s decision states explicitly that plaintiffs were challenging “the 

entirety of the county‟s land-use regulatory system as it relates to housing.” For this 

reason, the court heard evidence on the system‟s key features and on its application to 

specific portions of the county. In its extensive statement of decision, the court set out a 

detailed recitation of the evidence regarding the county‟s zoning code, including 

“(1) pertinent general features of the Napa County zoning code,” “(2) specific zoning 

districts in Napa County,” “(3) development patterns in Napa county,” (4) zoning features 

at “specific locations within Napa County,” and “(5) factors affecting development of

affordable housing.” The court made findings regarding the impact of the various zoning 

features, as well as of other factors, on the availability of affordable housing. Insofar as 

the court‟s analysis emphasizes the zoning applicable to the sites identified in the housing 

element as suitable for affordable housing, the decision responds to the evidence 

presented at trial. Plaintiffs‟ own expert testified that he “was asked to examine the 

county‟s zoning related to development of housing, to particularly look at the feasibility 

of the four clusters of sites that are designated under the AHCD zoning and . . . to note 

the constraints and alternatives for development of affordable housing.” The court did 

not, as plaintiffs suggest, consider “only the small subsection of the county‟s zoning 
31

policy that „related to the assignment of general plan designations to meet the county‟s 

share of affordable housing.‟ ” 

Likewise, contrary to plaintiffs‟ suggestion, the court did not apply an incorrect 

legal standard in evaluating plaintiffs‟ claims. The court‟s decision states, “To prove 

discrimination in violation of [the federal Fair Housing Act], [the state Fair Employment 

and Housing Act], or the planning and zoning law, the evidence must show that the effect 

of county laws or actions on the availability of housing is to discriminate among persons 

on the basis of one or more characteristics set forth in these statutes as unlawful bases for 

discrimination. The evidence need not show that county laws discriminate expressly on 

any of these unlawful bases. Rather, on the allegations of this case, plaintiffs could 

prevail if the evidence showed that county laws and actions have had, or will have, the 

effect of making housing affordable to households with moderate and lower incomes 

unavailable.” The court articulated the correct standard (see Jackson v. Okaloosa County, 

Fla., supra, 21 F.3d at p. 1542, fn. 17 [statutes encompass actions by government units 

that affect the availability of housing to protected classifications]), and did not, as 

plaintiffs suggest, require them “to show that the county actually prevented or removed 

affordable housing.” Although the court did not use the language “make it more difficult 

for Latinos or people with disabilities to obtain housing,” the decision, fairly read, makes 

clear that the court understood that plaintiffs would be entitled to relief if the county‟s 

policies were shown to have such an effect. 

Plaintiffs assert that the evidence establishes both discrimination based on a 

disparate impact theory and intentional discrimination. We shall consider each contention 

in turn. 

A. Disparate Impact

Plaintiffs contend that “Napa County maintains a zoning scheme that limits, if not 

effectively prohibits, the construction of affordable housing anywhere in the 

unincorporated portions of the county,” which has a greater impact on Latinos and people 

with disabilities who rely on affordable housing to a greater extent than other county 

residents. The trial court found that “[w]hether or not the availability of affordable 
32

housing differentially affects groups identified in the [federal Fair Housing Act], [state 

Fair Employment and Housing Act], or the planning and zoning law, the evidence did not 

prove that the county‟s land-use regulations have restricted or will restrict the availability 

in Napa County as a whole of housing affordable to households with very low, low, and 

moderate incomes.” The court explained that “[e]vidence showed that some county 

actions increase the supply of affordable housing in Napa County, but no evidence 

showed that other county actions decrease it.” According to the trial court, “the evidence 

did not demonstrate that the county‟s existing land-use rules or actions will result or have 

resulted in Napa County‟s having, overall, fewer housing units affordable to households 

with very low, low and moderate incomes than would exist under a different system of 

county land-use rules or actions.” In other words, while recognizing that there is a 

shortage of affordable housing in the county, the court found that the shortage was not 

caused by the county‟s land use policies. (See Gallagher v. Magner (8th Cir. 2010) 619 

F.3d 823, 836, fn. 4 [“Merely showing that there is a shortage of housing accessible to a 

protected group is insufficient to establish a prima facie case for a disparate impact claim. 

Plaintiffs must also show that such a shortage is causally linked to a neutral policy, 

resulting in a disproportionate adverse effect on the protected population.”].) We find no 

error in the court‟s decision.

Plaintiffs‟ disparate impact claim is analyzed under a three-step process. “First, 

[plaintiffs] must establish a prima facie case, which requires showing „that the objectedto action[s] result[ed] in . . . a disparate impact upon protected classes compared to a 

relevant population.‟ [Citation.] Stated differently, [plaintiffs] „must show a facially 

neutral policy ha[d] a significant adverse impact on members of a protected minority 

group.‟ [Citation.] [Plaintiffs] are not required to show that the policy or practice was 

formulated with discriminatory intent. [Citations.] If [plaintiffs] establish a prima facie 

case, the burden shifts to the [county] to demonstrate that its policy or practice had 

„ “manifest relationship” ‟ to a legitimate, non discriminatory policy objective and was 

necessary to the attainment of that objective. [Citation.] If the [county] shows that its 

actions were justified, then the burden shifts back to [plaintiffs] to show „a viable 
33

alternative means‟ was available to achieve the legitimate policy objective without 

discriminatory effects.” (Gallagher v. Magner, supra, 619 F.3d at pp. 833-834; see also 

The Committee Concerning Community Improvement v. City of Modesto, supra, 583 F.3d 

at p. 711.)

Critical to plaintiffs‟ prima facie case is the identification of the policy or practice 

being challenged. (Gallagher v. Magner, supra, 619 F.3d at p. 834.) For example, in 

United States v. City of Parma (6th Cir. 1981) 661 F.2d 562, 575-576, the court found an 

impermissible discriminatory impact from an ordinance requiring two and one-half 

parking spaces per residential unit, which increased the cost of housing and 

disproportionately affected racial minorities. In Huntington Branch, N.A.A.C.P. v. Town 

of Huntington (2d Cir. 1988) 844 F.2d 926, 937-942, the town‟s refusal to permit 

construction of multifamily dwellings outside of an urban renewal area was held to 

disproportionately affect the availability of housing for racial minorities. Plaintiffs‟ 

insistence here that they are challenging “the entirety of Napa County‟s zoning scheme” 

makes it somewhat difficult to evaluate their claims. They argue that the county‟s “set of 

zoning policies” “generally restricted the ability of developers to construct affordable 

housing,” but provide little additional specificity in their appellate briefs as to precisely 

which policies allegedly have such an effect. 

In the trial court, plaintiffs at one point made reference to the following specific 

“land use and zoning laws, policies and practices” that allegedly adversely affect the 

availability of affordable housing in Napa County: (1) “limiting residential density to 

levels that will not support affordable housing”; (2) “assigning general plan designations 

to sites that lack adequate infrastructure and amenities”; and (3) “assigning general plan 

and zoning designations to small scattered sites.”18 In supporting these arguments, 

 

18 Plaintiffs‟ trial brief also identified the elimination of particular zoning categories such 

as urban residential as a practice that adversely affects the development of affordable 

housing, but the trial court found that the issue had been waived because “there was no 

presentation of specific evidence and argument on this issue.” Plaintiffs have not 

challenged this finding on appeal.
34

plaintiffs relied primarily on their expert‟s opinion that multi-unit affordable residential 

development at the sites identified in the housing element is not fiscally feasible, or at 

least is made more difficult, by the isolation of the sites and low-density zoning. 19 The 

expert also explained that by selecting sites that are far from urban centers, potential 

developers are unlikely to receive tax credits and other financial benefits that make the 

development of affordable housing more feasible. 

The trial court rejected the expert‟s opinion that the county‟s low-density zoning 

contributes to lack of affordable housing in the county. The court pointed out that 

plaintiffs “identified no area in unincorporated Napa County in which a change in zoning 

would cause construction of housing affordable to low- or very-low income households.” 

Plaintiffs‟ expert acknowledged that he was unable to “identify any site in the 

unincorporated portion of Napa County that is not presently zoned for multifamily 

housing but on which [he believed] that multifamily housing, housing for a person with 

low or very low incomes would be developed if the county rezoned it.”

The court identified a number of other factors that discourage the development of 

affordable housing in the county. “Most of unincorporated Napa County is rural. The 

population density in the unincorporated area is generally low. Public transit services, 

schools, hospitals, and retail businesses are concentrated in the Napa Valley, and travel 

 

19 The expert opined that because the isolated sites identified by the county have limited 

access to necessities and amenities, any potential development “would need to have 

enough scale to be able to pay to bring these in.” While he acknowledged that the 

county‟s planned development (PD) zoning is “a good ordinance for housing in general,” 

he did not believe much affordable housing would be built in those zoning areas. He 

explained, “PD zoning requires a lot of amenities to be built on and again you have the 

scale problem where not only [do] you have to generate enough [] money to build the 

building, but also to build the sites. PD zoning, for example, requires 50 percent of the 

property [to] be open space. That‟s gonna require landscaping. That‟s not including 

operating costs. Those operating costs get spread out over [the] number of units. [If y]ou 

can‟t put enough units on the site, it gets difficult to pay for those costs. It‟s not really a 

problem from the market rate where the elements are high.” The expert also opined that 

while the AHCD overlay increased permissible density, it also included considerable 

additional requirements relating to transportation and infrastructure which add additional 

costs.
35

distances from the majority of the county to such services are long.” In addition, “[a] 

person wishing to develop any new housing in unincorporated Napa County must 

demonstrate access to sufficient potable water to serve the residents, and must arrange for 

treatment of the wastewater they generate. . . . [¶] . . . The county itself provides neither 

water not wastewater service.” The court found that these barriers to development “apply 

identically to housing intended for rental or sale at market rates and to housing intended 

to be affordable for households of moderate, low, or very low incomes.” Although the 

county had not recently approved any low-cost housing, neither had it “denied permission 

to construct any new affordable or market-rate multifamily residential development in 

unincorporated Napa County in several years.” 

The court also rejected the argument that the assignment of AHCD designation to 

sites that currently lack infrastructure and are generally located far from the urban centers 

makes housing “unavailable” within the meaning of the discrimination statutes. The court 

explained that plaintiffs are challenging “the county‟s policies and practices not because 

they make it more difficult to obtain affordable housing than it would be without such 

policies and practices, but rather because they make it more difficult than it would be if 

they had different, more development-friendly policies and practices. The court is 

unaware of any case in which a court found that a policy or practice of designating sites 

for affordable housing was found to be discriminatory simply because it was not likely to 

accomplish that purpose as well as other policies and practices might. To find 

discrimination for not optimizing the development of affordable housing would open the 

door to a discrimination claim virtually every time sites are designated for affordable 

housing, since arguably there would always exist sites better suited for the promotion of 

affordable housing.”

The trial court was correct that the failure to adopt potentially more effective 

affirmative measures is not a practice that supports a disparate impact claim. Although 

the state Housing Element Law imposes upon the county a role and responsibility to 

contribute to the “attainment of the state housing goal” (§§ 65580, subd. (c), 65581, 

subd. (a)), as indicated ante, the county has satisfied its obligations under that statute. Its 
36

failure to do more is not the equivalent of discrimination. Moreover, plaintiffs have not 

challenged the trial court‟s findings that the county established legitimate reasons for its 

low-density zoning scheme, including a preference for “urban-centered growth and 

preservation of agricultural land for employment” and that “the evidence showed neither 

that any of plaintiffs‟ proposed alternative land-use regulations[20] would achieve the 

county‟s urban-centered development objectives nor that they would achieve the county‟s 

objectives while improving the county‟s affordable housing supply.” For multiple 

reasons, therefore, the court properly rejected plaintiffs‟ disparate impact claim.

B. Intentional Housing Discrimination

Plaintiffs contend the county has intentionally discriminated against affordable 

housing “by constraining, discouraging and failing to permit” development of affordable 

housing. To establish such discrimination, plaintiffs must show (1) that the county‟s 

policies had a discriminatory effect and (2) that the county adopted these policies with an 

intent or purpose to discriminate against the development of affordable housing. (The 

Committee Concerning Community Improvement v. City of Modesto, supra, 583 F.3d at 

pp. 702-703; Keith v. Volpe, supra, 858 F.2d at p. 482 [A discriminatory effect means 

“that „the conduct of the defendant actually or predictably results in . . . discrimination.‟ 

”].) The trial court found that plaintiffs failed to prove either element. As discussed 

 

20 Alternatives suggested by plaintiffs include the county purchasing affordable housing sites and 

remediating contamination in preparation for development, enacting zoning ordinances that 

allow greater densities, modifying setback requirements in zoning ordinances applicable to the 

sites selected for affordable housing to reduce construction costs, and rezoning parcels closer to 

the cities under the residential multifamily designation. At oral argument, plaintiffs‟ counsel 

emphasized the proposed alternative of using the residential multifamily (RM) zoning 

designation or incorporating those standards into the planned development (PD) zoning category. 

The county‟s planning director testified at trial, however, that the zoning ordinance already 

incorporates this “alternative” because the PD section of the zoning ordinance references other 

zoning districts, including RM zoning, and provides that uses allowed under those other 

designations are allowed within a PD zone. Although plaintiffs‟ counsel sought to distinguish 

between incorporating the uses allowed in the RM zoning and the density allowed under RM 

zoning, the planning director, who is charged with interpreting the ordinance for the county, did 

not find the distinction important. She testified that because housing developments including 20 

units per acre are permitted under the RM zoning, “we would interpret those as being allowed in 

the PD [zones].”
37

above, plaintiffs failed to prove that the county‟s facially-neutral land use policies 

constrained or discouraged the development of affordable housing. On this basis alone, 

the judgment may be affirmed. However, substantial evidence also supports the trial 

court‟s finding that the county has not acted with discriminatory animus.

Proof of discriminatory purpose may include both direct evidence of 

discriminatory intent and indirect evidence that creates an inference of discriminatory 

intent. (Gallagher v. Magner, supra, 619 F.3d at p. 831.) “Direct evidence is evidence 

„showing a specific link between the alleged discriminatory animus and the challenged 

decision, sufficient to support a finding by a reasonable fact finder that an illegitimate 

criterion actually motivated the adverse . . . action.” (Ibid.) “Direct evidence does not 

include stray remarks . . ., statements by nondecisionmakers, or statements by 

decisionmakers unrelated to the decisional process itself.” (Ibid.) Relevant indirect 

evidence of discriminatory intent may include, among other things, “the historical 

background of the decision, the sequence of events leading up to the decision, and any 

relevant legislative or administrative history.” (The Committee Concerning Community 

Improvement v. City of Modesto, supra, 583 F.3d at p. 703, citing Village of Arlington 

Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252, 267-268 

(Arlington Heights); LeBlanc-Sternberg v. Fletcher (2d. Cir. 1995) 67 F.3d 412, 425-

426.)21

 

21 Contrary to plaintiffs‟ suggestion, the trial court‟s decision is not deficient because it 

fails to address separately each of the factors that the United States Supreme Court in 

Arlington Heights held to be relevant in evaluating a claim of intentional discrimination, 

or to address all of plaintiffs‟ evidence. “A statement of decision need not address all the 

legal and factual issues raised by the parties. Instead, it need do no more than state the 

grounds upon which the judgment rests, without necessarily specifying the particular 

evidence considered by the trial court in reaching its decision.” (Muzquiz v. City of 

Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125.) While the section of the court‟s 

statement of decision entitled “Plaintiffs have not shown direct evidence of 

discrimination” expresses its findings in a relatively summary fashion, read as a whole 

the statement of decision addresses each of the relevant legal factors and sufficiently 

identifies the evidence that supports the court‟s finding.
38

While for reasons discussed below we question the significance of the evidence on 

which plaintiffs rely to establish discriminatory animus, even assuming that some 

evidence does tend to support their contention, the trial court‟s contrary finding must be 

upheld if the record contains evidence that supports its finding. When an appellate court 

is faced with a challenge to the sufficiency of the evidence supporting a questioned 

finding, the standard of review is the substantial evidence rule. The presumption is in 

favor of the judgment and if the evidence is in conflict, an appellate court will not disturb 

the trial court‟s findings. All factual matters, including inferences reasonably drawn from 

the evidence, are viewed most favorably to the prevailing party and in support of the 

judgment. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 

58.) 

The trial court identified several steps the county has taken in an attempt to 

encourage the development of affordable housing. The AHCD zoning increases 

permissible density levels for affordable housing projects and thus, as the court noted, 

“would permit, not preclude, development of multifamily housing including affordable 

housing.” The court found that the county adopted the AHCD zoning to encourage the 

development of affordable housing and applied it at sites throughout the county that are 

most suitable for affordable housing. The county has created an affordable housing fund 

that is available to “assist developers of affordable housing in addressing the cost of 

providing water or wastewater services” and “to subsidize development or operation of 

affordable housing.” Loans have been made from the affordable housing fund to 

subsidize the development of over 700 units of affordable housing in cities within the 

county. The court also noted that “[a]lthough no multifamily residential development has 

occurred in recent years,” the county has approved development of 10 second units a 

year, the market rents for which are affordable to households with moderate incomes, and 

has ensured through code enforcement that the 70 to 80 farm labor dwellings currently in 

the county remain in use for farm workers. In 2009, when the county updated the housing 

element, the Napa Pipe sites were included and other sites deemed less appropriate were 

removed. Despite the concerns regarding the environmental contamination at the Napa 
39

Pipe sites, which is delaying the ability to develop those sites, plaintiffs‟ expert 

acknowledged that “Napa Pipe is actually the best of all sites primarily because there‟s a 

potential to build enough scale to be able to provide the amenities. And . . . it‟s in one of 

the employment growth areas for the county.”22

To prove the county‟s intent to discriminate against affordable housing, plaintiffs 

relied primarily on the history of potential development in an area of the county referred 

to as the “Monticello Road” sites, statements made by “county decisionmakers,” and the 

fact that “virtually no units of housing affordable to low- and very-low-income persons 

have been built in the unincorporated county since at least 2004.” 

As to the Monticello Road sites (located near Silverado Country Club), in 2004 the 

county‟s housing element identified these sites, to which the AHCD zoning was then 

applicable, as suitable for the development of affordable housing. In July 2006, a 

developer wrote to the county and the Local Agency Formation Commission (LAFCO) 

expressing its interest in developing affordable housing on one of the sites on Monticello 

Road. The letter requested that the proposed development site be included in the 

sanitation district‟s sphere of influence, which LAFCO was then reviewing. After 

receiving the developer‟s letter, the county wrote LAFCO, reiterating its prior March 

2006 request that LAFCO defer action on adjustments to the sanitation district‟s sphere 

of influence pending the county‟s general plan update. The county‟s July 2006 letter 

states, “The [Napa Sanitation Department] Comprehensive Sphere of Influence Review 

report dated July 2006 accurately summarizes the position of the county when it states 

that there are several parcels located along Monticello Road designated for affordable 

housing that may be appropriate sites to receive sewer services. We wish to reiterate that 

 

22 While the inclusion of Program H-4e in the Housing Element to rezone 20 acres on 

Napa Pipe property for the development of affordable housing may at this point be 

considered a positive step by the county toward encouraging the development of 

affordable housing, we again note that continued reliance on the rezoning of only 20 

acres of the Napa Pipe site may demonstrate a discriminatory animus, should it become 

clear that the parcel rezoned under Program H-4e will not realistically support the 

development of affordable housing. 
40

the county supports the development of affordable housing on those parcels listed in the 

housing element and supports the extension of services to these sites.” The letter 

explained that its request was “not intended to exclude [the Monticello site] from the 

sphere, but rather to ensure that a thorough analysis of all appropriate and necessary 

services to the broader area is conducted after the county land use policies have been 

reviewed.” 

The Monticello Road sites were removed from the housing element when it was 

revised in 2008. Plaintiffs contends that their removal evidences the county‟s hostility to 

affordable housing and that this contention is buttressed by the developer‟s testimony that 

county Supervisor Bill Dodd told him that affordable housing would be developed at the 

Monticello Road site “over [his] dead body.” However, whatever Supervisor Dodd‟s 

views may have been,23 the developer acknowledged that other than the letter written to 

 

23 Plaintiffs also presented evidence of Supervisor Dodd‟s statements at a meeting on 

October 14, 2008, at which he acknowledged that he had voted to include the Monticello 

Road sites in the 2004 housing element only because he was confident that affordable 

housing would never be built there. At the meeting, Dodd stated: “[R]ecalling back to the 

last housing element cycle process, we were challenged legally, and the board went into 

closed session, as we have the right to do, to settle lawsuits, and . . . [the Monticello 

Road] sites were put in by the board without any public hearing, and at the time I agreed 

with it because I thought it was the right thing to do for the county. We were in harm‟s 

way, we would have stopped all building permits, everything, not only just in that area 

. . . [a]nd that would have just stopped commerce altogether in my view in Napa County. 

And I had supervisors even looking at me in the closed session and saying are you sure, 

do you want to do that, that‟s political suicide. Sure. That was one of the things I think 

that we needed to do to take it on the chin, and put those housing sites on there. Now to 

be clear, and I‟ve told other people this, without the services, the water and the sewer, it 

was not a big gamble. It wasn‟t a gamble at all because I didn‟t think that those things 

would be built in this timeframe anyway. Nor do I think they‟ll be built in the future. 

They‟re not, as far as LAFCO is concerned, the Napa Sanitation District is not, that 

whole area is not annexed in at this time. Nor do I think it will be until this issue is 

adjudicated one way or another.” Dodd explained that in his opinion, development at the 

Monticello Road sites was “dumb growth” and that “it‟s ridiculous to put that kind of 

intensity that far away from the services and everything else.” He indicated that he agreed 

to the inclusion of those sites in the prior housing element because he had “a 5-0 vote 

from the board of supervisors that as soon as that was practicable we would remove the 

affordable housing overlay zone from that area.”
41

LAFCO, no application for the extension of services to the site was ever made and that he 

had abandoned the potential project because the owner‟s asking price for the land was 

almost twice what appraisals indicated the property was worth. The trial court found that 

the county‟s communication with LAFCO reflected its support of affordable housing at 

the Monticello Road sites and that the project was abandoned because the developer 

could not purchase the property for a reasonable price. The Monticello Road sites were 

removed from the housing element because Napa Pipe “is a superior site for the 

development of larger scale affordable housing during the 2007-2014 housing element 

cycle.” The evidence supports the court‟s finding that this history does not support an 

inference of discriminatory animus. 

Plaintiffs also presented evidence of statements made by two other county officials 

at an October 14, 2008 joint meeting of the Napa County Board of Supervisors and 

Planning Commission regarding the draft 2009 housing element update. Planning 

Commissioner Fiddman stated that he felt the county was complying with state 

requirements but that he thought more emphasis should be placed on developing low-cost 

housing in the incorporated urban areas of the county.24 At the same meeting, Supervisor 

 

24 Planning Commissioner Fiddman stated: “I think we‟re doing a great job toward meeting state 

requirements . . . that are needed for us to have a certified housing element, and I realize how 

important that is. And I certainly would not argue with that being kind of a number one goal 

here. But I don‟t think that precludes us from standing back and saying, what should we really be 

trying to do about housing here in Napa County. . . . [¶] But I would like to see us . . . put a little 

more emphasis on the strategy of building housing in our urban areas that are already established 

. . . . And to the extent that we can include some information about what our incorporated cities‟ 

housing element plans are . . . and their plans for growth, and show how that starts to meet . . . 

the real need in this county. I think that would be very helpful, and maybe start presenting our 

arguments to the county, which from my point of view, we shouldn‟t really be building any 

housing in the county, of any quantity at least, and certainly not the affordable housing, and 

certainly not at the kind of densities that are being talked about today. It should all be built in the 

cities.” Fiddman went on to make additional suggestions such as that the county “ought to have a 

requirement for any major employers that would build facilities in the county to actually provide 

some workforce housing. . . . They ought to actually build some housing not just pay an in lieu of 

fee.” He also suggested that the county “ought to have some commentary about the issues we‟re 

working on with respect to vacation rentals and fractionalized housing because to the extent that 

we can prevent having more housing taken out of the actual housing stock, and made virtually 

resort stock, I think that would be a good thing to do.”
42

Diane Dillon expressed concerns about some of the sites identified for affordable housing 

in the housing element and felt that emphasis should be placed on developing housing at 

locations that will reduce greenhouse gas emissions.25

The trial court found that Commissioner Fiddman‟s statement did not establish the 

county‟s intent to discriminate against affordable housing. The court explained, “One 

planning commissioner‟s communication of a preference for keeping higher-density, 

affordable housing concentrated in urban areas near public facilities and infrastructure is 

simply not demonstrative of an overall discriminatory animus against low-income 

housing or those in need of it. And there is no evidence of any causal connection between 

the commissioner‟s statement and the lack of development in the unincorporated areas of 

the county.” We agree that Fiddman‟s comments do not evidence a discriminatory 

animus towards affordable housing. Although the court did not specifically address the 

comments made by other county officials, the same can be said of their statements as 

well.

Finally, while plaintiffs are apparently correct that no affordable housing has been 

developed in the unincorporated portions of the county since 2004, that fact does not 

establish that the failure has been caused by discriminatory policies or practices. The 

failing unquestionably is a matter of serious concern, but the record indicates that efforts 

 

25 Supervisor Dillon explained, “I understand our legal need to keep some alternative 

sites [but] I‟d like to see something in this document that would reflect that those are 

places of last resort . . . . [¶] The world has changed since we started our general plan 

process, and certainly since we did our housing element update. We‟ve got . . . Assembly 

Bill 32, which mandates that we look at greenhouse gas emissions and roll them back. 

We‟ve got Senate Bill 375 . . . , which says we‟re going to look at vehicle miles traveled 

and greenhouse gas emissions when we evaluate any development.” She offered as an 

example that for Spanish Flat and Moskowite Corner she would “like to see us do 

something . . . where we said, yes that‟s appropriate if there is development at Berryessa 

where we need to have housing up there. Because, in fact, building housing up there 

would reduce vehicle miles traveled because there are new employees, because there are 

new resorts and new developments up there.” Similarly, she proposed that “housing that‟s 

built at Angwin should be tied to worker jobs at Angwin and employees who work in the 

Angwin area and their need for housing.”
43

to remedy the situation are in fact under way. In all events, the record supports the trial 

court‟s finding that plaintiffs failed to establish either a discriminatory effect of county 

actions or discriminatory animus underlying them. Therefore, we must uphold the court‟s 

ruling in the county‟s favor on plaintiffs‟ discrimination claims.

DISPOSITION

The judgment is reversed insofar as it finds in favor of the county on plaintiff‟s 

second cause of action to compel the county to comply with the state Density Bonus Law 

but is affirmed in all other respects. The matter is remanded to the trial court for entry of 

a writ of mandate consistent with this opinion. The parties shall bear their respective 

costs on appeal.

_________________________

Pollak, Acting P.J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.
1

SIGGINS, J., —

I fully concur in the decision of the court. I write separately to express my view 

that a civil action and subsequent appeal, even with calendar preference, will rarely 

provide an efficacious remedy to address a deficiency in the general planning process. 

Work began to update Napa County‟s (the county) housing element in January 

2008, and it was adopted by the board of supervisors that June. This lawsuit was filed in 

November 2009. The trial court issued its statement of decision and ruled against 

plaintiffs on February 1, 2012. The briefing was complete in this court at the end of 

February 2013. The housing element is to next be revised and updated by June 2015. 

Thus, we are well into the planning period for the next update.

Against this backdrop, we are to consider whether a challenged plan actually 

complies in substance with every reasonable objective of the general plan statute. (Camp 

v. Board of Supervisors (1981) 123 Cal.App.3d 334, 348.) If it does not, we may reject it 

and the county has 120 days to effectuate a compliant plan. (Gov. Code, § 65754.) 

In a case like this one where the challengers point to no alternative that would 

readily fulfill the objectives of the statute, and none is readily apparent in the record, 

judicial rejection of the plan will only create more uncertainty. Here, I urge the county to 

carefully consider during this planning period the reservations expressed in Justice 

Pollak‟s majority opinion of the feasibility of the selected sites, particularly Napa Pipe. 

The Housing Element Law (Gov. Code, § 65580 et seq.) was intended to facilitate 

and expedite the construction of affordable housing (Gov. Code, § 65582.1). It is hard to 

discern the fulfillment of that statutory objective when repeatedly the housing envisioned 

in adopted plans exists only in concept on paper.

_________________________

Siggins, J.
Priority Housing Development Sites

FIGURE H-1-1 

0 5 10 Miles

Angwin

·|}þ

128

|

}þ2 9

Calistoga

St. Helena

Napa Pipe

Yountville

|

}þ29

|}

þ

12

Napa

American 

Canyon

|}

þ

12

|

}þ2 9

|

}þ29

|}

þ

12

|}

þ

12

|

}þ29

Moskowite Corner

Spanish Flat

LOCATION OF PRIORITY HOUSING 

DEVELOPMENT SITES

C O U N T Y O F N A P A

H O U S I N G E L E M E N T U P D A T E 

S I T E S I N V E N T O R Y A N D A N A L Y S I S
Trial court: Napa County Superior Court

Trial judge: Honorable Raymond Guadagni

Counsel for plaintiffs and appellants: Relman, Dane & Colfax PLLC

Reed N. Colfax

D. Scott Chang

David Grabill

California Rural Legal Assistance, Inc.

Ilene J. Jacobs

:

California Affordable Housing Law Project of the 

Public Interest Law Project

Craig Castellanet

Michael Rawson

California Rural Legal Assistance, Inc.

Jeffrey Hoffman

Richard A. Marcantonio and Samuel P. TeppermanGelfant for Public Advocates Inc. as amicus curiae on 

behalf of appellants.

Counsel for defendant and respondent: Goldfarb & Lipman LLP

Juliet E. Cox

Barbara E. Kautz

County Of Napa

Minh C. Tran, County Counsel

Silva Darbinian, Chief Deputy County Counsel

Jennifer B. Henning for California State Association of 

Counties as amicus curiae on behalf of respondent.

A135094