Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSS702996. Donald R. Alvarez, Judge.
Liebold McClendon & Mann, John G. McClendon and Alisha M. Winterswyk for Plaintiffs and Appellants.
Allen Matkins Leck Gamble Mallory & Natsis, Stephen R. Thames, Nicholas S. Shantar; Robin B. Cochran and Bart W. Brizzee, Deputy County Counsel, for Defendants and Respondents.
OPINION
MILLER J.
The trial court denied the petition of His Light Investments, Ltd. (HLI); Olive Branch Investors, LLC; and William W. Greenway, Jr. (collectively referred to as plaintiffs) for a writ of mandate. In short, HLI petitioned the trial court to direct the County of San Bernardino (the County) to approve HLI’s application for a conditional use permit (the permit). The permit would have authorized HLI to construct a mobile home park. The County denied HLI’s permit application because the high-density mobile home park was not compatible with the surrounding rural area. Plaintiffs contend that the County’s foregoing reason for denying HLI’s permit application was a pretext for discriminating against low-income households. Plaintiffs assert that the County erred by not following a variety of statutory laws. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
HLI was formed in December 2003 for the purpose of investing in real estate. During January 2006, HLI received approximately 40 acres of real property in the Piñon Hills/Phelan area (the property). One month later, in February, HLI applied for a conditional use permit, so that it could construct 160 mobile home spaces on the property (the project).
Approximately 800 people signed petitions against the project; the petitions were given to the San Bernardino County Planning Commission (the Planning Commission). At the December 21, 2006, Planning Commission meeting, an employee of the County’s Land Use Services Department presented the project proposal to the Planning Commission, and said that he could “find no reason to recommend denial on this project.” The Planning Commission approved HLI’s application for a conditional use permit, by a vote of three to two.
Don Slater, an individual, “on behalf of the communities of Piñon Hills [and] Phelan,” appealed the Planning Commission’s approval of the conditional use permit. Slater submitted his appeal to the County Board of Supervisors (Board of Supervisors) on January 3, 2007. Slater contended that the Planning Commission’s approval of the permit was erroneous because the project would not be compatible with the surrounding area. Specifically, Slater complained that the project would be high density, while the surrounding area was rural.
The Board of Supervisors considered Slater’s appeal at their meeting on March 27, 2007. The director of the County’s Department of Land Use Services presented the appeal to the Board of Supervisors. The director stated that the project provided for a maximum of four mobile homes per acre, which was permitted by the area’s zoning.
Slater also spoke during the Board of Supervisors’ meeting. Slater argued that his appeal should be granted because (1) high-density housing was not compatible with the rural neighborhood; (2) the local elementary school was overcrowded; (3) the local water supply was insufficient; and (4) the community did not support the project. A variety of other community members and County employees spoke at the meeting.
Supervisor Mitzelfelt made a motion to (1) grant the appeal “[b]ecause the concerns of the citizens of Piñon Hills are important to [him and he] believe[s] those concerns are valid”; and (2) find that the project was not compatible with the surrounding community-compatibility was required by the area’s General Plan. Supervisor Gonzales seconded the motion, and stated that the “consistency in the development, the conforming use element” was an issue. The Board of Supervisors unanimously passed the motion.
On March 12, 2008, plaintiffs filed a second amended petition for a writ of mandate and complaint seeking damages. In the petition for a writ of mandate, plaintiffs alleged that the Board of Supervisors failed to comply with a variety of statutes and County codes, including (1) Government Code section 65008, subdivision (b)(1)(C), which prohibits administering ordinances in a manner that discriminates against residential development for people of low or moderate incomes; (2) section 65589.5, subdivision (d), which prohibits local agencies from disapproving a housing development project for low or moderate income households in a manner that renders the project infeasible for development for the use of low or moderate income; and (3) section 65863, subdivision (b), which prohibits counties from reducing the residential density for any parcel by administrative or legislative action.
All further references to “the petition” and “the complaint” will be to the second amended petition for writ of mandate and complaint for damages, unless otherwise indicated.
All further statutory references are to the Government Code unless otherwise indicated.
Plaintiffs requested that the trial court issue a writ of mandate directing the Board of Supervisors to enter a decision denying Slater’s appeal. Plaintiffs’ complaint sought damages for inverse condemnation.
On January 20, 2009, the trial court filed a written judgment in the matter. In regard to all of the alleged statutory and code violations, the trial court found that plaintiffs (1) failed to exhaust their administrative remedies, and/or (2) failed to establish a violation of the relevant statute or code. The trial court denied the writ petition, and dismissed the complaint with prejudice.
Plaintiffs filed a petition for a writ of mandate with this court on April 2, 2009. Plaintiffs requested that this court issue a writ of mandate directing the trial court to reverse its judgment on the writ petition. This court denied plaintiffs’ petition for a writ of mandate on May 18, 2009. This court gave the following reasons for the denial: “We agree with the trial court that [plaintiffs’] attempt to suggest that the project is ‘affordable,’ within the meaning of... section 66589.5, came too late, and, in any event, [plaintiffs] failed to demonstrate with specific figures that the project qualified under the detailed requirements of the statute. We also find that real party in interest properly found that the project was inconsistent with specified goals of the general plan.”
DISCUSSION
Plaintiffs’ briefs contain a myriad of arguments combined with competing standards of review. For example, plaintiffs contend that the Board of Supervisors violated a variety of statutes and code sections, but ultimately conclude that substantial evidence does not support the Board of Supervisors’ decision. Because the substantial evidence standard of review is typically applied to the denial of a conditional use permit (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1213), we will apply that standard to our review of the Board of Supervisors’ decision. We will then address the arguments that we believe plaintiffs were trying to raise in their briefs.
A. SUBSTANTIAL EVIDENCE
We review the Board of Supervisors’ decision to determine if it is supported by substantial evidence. We conclude that substantial evidence does support the vote by the Board of Supervisors.
A conditional use permit authorizes a property owner to use his or her land in a manner that is desirable to the community, but typically it is not the type of use that would be authorized in every area within the zoning district, e.g., a repair shop with heavy machinery. (Upton v. Gray (1969) 269 Cal.App.2d 352, 357; County Ordinance No. 4011, § 85.06.010(a).) Because of potential problems, such as noise or traffic that could be created by a project that requires a conditional use permit, local agencies approve a non-conforming use with certain restrictions, i.e., conditions that will mitigate the specific problems raised by the proposed project. For example, a noisy repair shop must be closed from 7:00 p.m. until 9:00 a.m. (People v. Perez (1963) 214 Cal.App.2d Supp. 881, 885-886.)
It was the duty of the trial court to review the Board of Supervisors’ decision by reviewing the entire administrative record and then determining whether the Board of Supervisors’ findings are supported by substantial evidence and whether the agency committed any errors of law. On appeal, we perform a review identical to the review conducted by the trial court. (Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1005.) “The burden is on the [plaintiffs] to show there is no substantial evidence whatsoever to support the findings of the board [of Supervisors]. [Citation.]” (Saad v. City of Berkeley, supra,24 Cal.App.4th at p. 1212.)
The Board of Supervisors found that the project was inconsistent with two portions of the general plan. The two portions of the general plan cited by the Board of Supervisors were: (1) projects should be compatible with adjacent land uses and community character, and (2) future growth should be directed to areas where infrastructure and public services are preexisting or can be easily provided.
The property at issue consisted of native vegetation, such as Joshua Trees, Yuccas, sagebrush, and grasses. The land immediately adjacent to the east, south, and west of the property was vacant, but several single-family homes were being constructed to the immediate north of the property. The larger area around the property, i.e., not immediately adjacent, are “rural in nature with scattered residential structures and vacant land.” Many homes in the area were located on lots that are a minimum of two acres.
The proposed project would be located on 40 acres of land, and it would include: (1) 160 mobile home spaces, with estimated lot sizes of 0.17 an acre each; (2) a clubhouse; (3) a swimming pool; (4) a soccer field; (5) a softball field; and (6) a playground. Additionally, two linear miles of road that provided access to the mobile home community would need to be paved, and the mobile home community would need its own on-site package treatment plant to treat sewage.
We now analyze the evidence related to the Board of Supervisors’ first finding-that the project was incompatible with the adjacent land uses and community character. The evidence of the lot size difference between the established homes, which were mostly on lots that were a minimum of two acres, and the proposed mobile home spaces, which would be approximately 0.17 an acre each, was substantial evidence that the project was incompatible. It is reasonable to find that the smaller mobile home lots would be incompatible with the community character, because 160 homes located on 0.17 an acre each, could look out-of-place among “scattered residential structures and vacant land.”
Next, we address the Board of Supervisors’ finding that the project was incompatible with the plan to direct future growth to areas where infrastructure and public services were preexisting or could be easily provided. The evidence that the project would require two linear miles of road to be paved, and an on-site package sewage treatment plant, supports the conclusion that the necessary infrastructure was not preexisting. Further, the paved road would provide the only all-weather access to the project, “until another alternate pave[d] access is provided in the future”; and the on-site sewage treatment plant would require approval of the County’s Environmental Health Services Department and the California Regional Water Quality Control Board. A reasonable person could infer from this evidence that the necessary infrastructure could not be “easily provided.” Therefore, we conclude that substantial evidence supports the Board of Supervisors’ finding that the project was incompatible with the general plan’s goal of directing future growth to areas where infrastructure and public services were preexisting or could be easily provided.
In sum, substantial evidence supports the Board of Supervisors decision to grant Slater’s appeal.
Plaintiffs contend that the Board of Supervisors denied the conditional use permit because the Board of Supervisors was discriminating against the potential low-income residents that would occupy the mobile home community. Plaintiffs assert that the Board of Supervisors relied on the high-density aspect of the project as a means of hiding their discriminatory intent. Plaintiffs quote a variety of section 65008’s subdivisions. It is unclear from plaintiffs’ briefs exactly which subdivision their argument relies upon. Accordingly, for the sake of being thorough, we will analyze whether section 65008, subdivisions (a) and (b), were violated. We conclude that neither subdivision was violated.
1. SUBDIVISION (a)
Section 65008, subdivision (a), provides that “any action” by a county will be “null and void if it denies to any individual or group of individuals the enjoyment of residence, landownership, tenancy, or any other land use in this state because” of the individual’s, or group’s, occupation, age, sex, sexual orientation, color, race, religion, ancestry, national origin, familial status, marital status, disability, source of income, or method of financing.
Section 65008, subdivision (a), does not protect against acts of discrimination based upon an individual’s or group’s level of income. Accordingly, plaintiffs’ argument is unpersuasive.
2. SUBDIVISION (b)
Government Code section 65008, subdivision (b)(1)(C), provides that no county “shall, in the enactment or administration of ordinances pursuant to any law,... prohibit or discriminate against any residential development” because the development “is intended for occupancy by persons and families of very low, low, or moderate income.” The discrimination prohibited by Government Code section 65008, subdivision (b), includes denying a residential development due to the occupancy by people of low or moderate incomes. (Govt. Code, § 65008, subd. (b)(2)(B).) “Residential development” includes manufactured homes. (Govt. Code, § 65008, subd. (f).) The term people of “low or moderate income” refers to “persons and families whose income does not exceed 120 percent of area median income, adjusted for family size.” (Health & Saf. Code, § 50093.)
At the Board of Supervisors’ meeting, Greenway, HIL’s spokesman, said, “Although costs keep rising, we expect to sell a typical [1,600] square foot, three bedroom, two bath home for between [$160,000] and [$175,000] in this community.... Space rents will range from [$400] to [$500] a month, depending upon location. We compute the combination of mortgage and space rent would average [$1,550] a month, assuming an eight percent interest rate and five percent down payment. Also at the meeting, HIL’s attorney said, “This is affordable housing. Under your own [Housing and Community Development] standards for 2006, the most current standards, people-a family of four and five would qualify for [moderate income]. A household would qualify to purchase property here.”
Nowhere in the presentation do Greenway or HLI’s attorney discuss the incomes of the families who will reside in the mobile home community. Plaintiffs’ argument mentions the estimated monthly costs associated with living in the community, and the Housing and Community Development standards for the area; however, there is nothing reflecting that the people who will potentially occupy the units will have salaries that do not exceed 120 percent of the area median income, adjusted for family size. In other words, there is nothing showing that the potential households will be moderate or low income.
In plaintiffs’ opening and reply briefs, plaintiffs compute various figures to demonstrate that low and moderate income households would have been able to afford a home in the mobile home community. Specifically, plaintiffs claim that the law provides for a moderate income family of four to spend $1,775 per month on housing, and a moderate income family of five to spend $1,912.50 per month on housing. Again, plaintiffs present no information about the potential residents’ incomes. Rather, all the information provided relates to the costs of the units.
For the foregoing reasons, this court cannot determine if the Board of Supervisors discriminated against the project due to the occupancy by people of low or moderate incomes. (§ 65008, subd. (b)(2)(B).) We note that within plaintiffs’ contention related to section 65008, they cite to the statutory definition for “‘Housing for very low, low-, or moderate-income households.’” (§ 65589.5, subd. (h)(3).) Plaintiffs argue that the project met the requirements for low or moderate income housing, because 100 percent of the housing units could have been sold to moderate income households. (§ 65589.5, subd. (h)(3).) Plaintiffs’ argument fails to appreciate that section 65008, subdivision (b), prohibits the County from discriminating against people of low or moderate incomes; it does not prohibit discriminating against housing for low or moderate income residents. In other words, the important evidence for this case is not the affordability of the housing, but the incomes of the potential residents.
Plaintiffs go on to assert that the “trial court ignored the evidence.” When reviewing the denial of a petition for a writ of administrative mandate, an appellate court applies the substantial evidence test “to the trial court’s findings if a fundamental vested right is involved or substantially affected and [if] the trial court exercised its independent judgment in examining the administrative decision. [Citation.]” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 851.)
“On the other hand, if no fundamental vested right presents in the case[, as in the instant case,] and the trial court applied the substantial evidence test, then the reviewing court’s task is the same as the trial court’s-examination, under the substantial evidence test, of the administrative agency’s findings. [Citation.]” (Antelope Valley Press v. Poizner, supra, 162 Cal.App.4th at p. 851.) Based upon the foregoing rule of appellate review, we do not discuss plaintiffs’ contention that the trial court ignored certain evidence, because we are reviewing the Board of Supervisors’ decision, not the trial court’s ruling.
C. TRIAL COURT
Plaintiffs raise a variety of contentions related to the trial court’s ruling. First, plaintiffs contend that the trial court erred by shifting the burden of proof from the County to plaintiffs. Second, plaintiffs assert that the trial court erred when it concluded that plaintiffs did not exhaust their administrative remedies. As we noted ante, this court reviews the decision by the Board of Supervisors, not the ruling by the trial court. Accordingly, we decline to discuss plaintiffs’ foregoing contentions related to the trial court.
Third, plaintiffs describe the “great lengths” they went to in order to educate the trial court about the County’s failure to make the findings required by section 65589.5, subdivision (j). Section 65589.5, subdivision (j), directs local agencies to make certain findings when disapproving housing development projects that comply with the relevant local general plan. Plaintiffs appear to be asserting that the trial court misconstrued section 65589.5, subdivision (j), although their argument is somewhat confusing. Assuming that the foregoing is plaintiffs’ contention, we decline to discuss the argument, because we do not review the trial court’s ruling.
Plaintiffs contend that the Board of Supervisors erred by reducing the allowable housing density on the property by 200 homes. We disagree.
Plaintiffs reach the number 200 by asserting that all 160 proposed mobile home spaces “would be affordable to persons and families of low and moderate income,” and therefore, HLI would have been entitled to a 35 percent “density bonus” (§ 65915), for building low-income housing, which would have resulted in 216 potential mobile home spaces.
Section 65863, subdivision (b), prohibits a county from taking quasi-judicial action that lowers the residential density of any parcel unless the county makes written findings supported by substantial evidence that (1) the reduction is consistent with the general plan; and (2) “[t]he remaining sites identified in the housing element are adequate to accommodate the jurisdiction’s share of the regional housing need.”
The phrase “lowers residential density” can have two different meanings. The first definition is relevant to counties that adopted a housing element that is in substantial compliance with section 65580 et seq. (Former § 65863, subd. (h)(1).) The second definition is relevant to counties that did not adopt a housing element in a timely manner, or whose housing element is not in substantial compliance with section 65580 et seq. (Former § 65863, subd. (h)(2).)
Section 65863, subdivision (h), was reorganized in January 2009, and is now subdivision (g).
The administrative record does not include a copy of the County’s General Plan (§ 65302). However, the 12-volume administrative record does include two different versions of the “Housing Element” portion of the General Plan. A “Housing Element” consists 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.” (§ 65583.)
The first housing element in the administrative record became effective on June 24, 2003; however, the housing element did not comply with statutory requirements, and therefore, the California Department of Housing and Community Development (DHCD) did not certify the June 2003 housing element. The second housing element in the administrative record became effective on April 13, 2007-approximately two weeks after the Board of Supervisors’ decision to grant Slater’s appeal, and therefore, we do not find it applicable to the instant appeal.
In sum, the first housing element was not in full compliance with the statutory requirements; however, it is unclear if the housing element was in substantial compliance with the statutory mandates. Plaintiffs do not inform this court which definition of “lower residential density” is applicable to the instant case. Rather, plaintiffs quote both definitions, but place an “or” in between them, implying that we can choose which definition to apply. This court cannot determine which definition of “lower residential density” should be applied; and therefore, we cannot determine if the Board of Supervisors effectively lowered the residential density of the property.
Next, plaintiffs assert that the trial court erred by applying an incorrect baseline when determining whether the County lowered the residential density of the property. We decline to discuss this contention because we review the decision of the Board of Supervisors, not the ruling of the trial court.
E. COUNTY CODE
Plaintiffs contend that the Board of Supervisors violated former County Code section 83.010625. The foregoing county code section provided: “Upon hearing the appeal, the appeal body shall consider the record and such additional evidence as may be offered, and may affirm, reverse or modify, in whole or in part, the decision appealed. The appeal body is subjected to all of the criteria, findings, and requirements imposed by this Code upon the original decision maker.” (Former County Code, § 83.010625.)
Specifically, plaintiffs assert that the Board of Supervisors failed to (1) consider whether Slater’s and the community’s objections to the project constituted substantial evidence; (2) consider Slater’s and the community’s objections to the project in light of the entire record; and (3) follow the foregoing code section (Former County Code, § 83.010625.) Plaintiffs do not cite to the record or legal authority to support their arguments. Additionally, plaintiffs present the arguments without explanation-they simply conclude that the Board of Supervisors erred.
This court is “not required to search the record to ascertain whether it contains support for [plaintiffs’] contentions.” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 (Mansell).) We do not serve as “backup appellate counsel,” or make the parties’ arguments for them. (Id. at p. 546.) Consequently, the issue, to the extent one has been raised, is waived. (Ibid.)
F. DEMURRER-CALIFORNIA’S ENVIRONMENTAL QUALITY ACT
1. FACTS
In plaintiffs’ original complaint, the sixth cause of action alleged:
“68. Petition realleges paragraphs 1 through 67.
“69. [California’s Environmental Quality Act] CEQA applies to all ‘governmental agencies at all levels’ and requires public agencies to prepare environmental documentation whenever a discretionary decision may result in significant adverse effects or impacts on the environment.
“70. [The County’s] decision to deny the Project was a discretionary decision made without first complying with (among other statutes) Government Code section 65589.5(b), and despite causing potentially significant adverse economic, social, and environmental effects.
“71. Failure to prepare any environmental in conjunction [sic] with the granting of the appeal constituted a violation of CEQA and the State CEQA Guidelines.
“72. [The County] also failed to timely comply with Public Resources Code section 21151.5 and CEQA Guidelines section 15107 by failing to adopt the Mitigated Negative Declaration within 180 days after Petitioner [HIL’s] application for the Project was deemed complete.
“73. Petitioners have suffered significant damages on account of [the County’s] failure to comply with Public Resources Code section 21151.5 and CEQA Guidelines section 15107.”
2. ANALYSIS
Plaintiffs contend that the trial court erred by sustaining the County’s demurrer to plaintiffs’ original complaint, with leave to amend. The original complaint alleged a violation of CEQA. Plaintiffs omitted the CEQA cause of action from their first amended complaint. We disagree with plaintiffs’ contention.
When reviewing an order sustaining a demurrer, this court applies the de novo standard of review. Specifically, we independently judge “whether the complaint states a cause of action as a matter of law. [Citations.]” (Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 539.) We treat “the demurrer as admitting all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. [Citation.]” (Id. at p. 538.) “We give the complaint a reasonable interpretation, reading the complaint as a whole and its parts in context. [Citation.] When a demurrer is sustained with leave to amend but the plaintiff elects not to do so, we presume the complaint states as strong a case as the plaintiff can muster. [Citations.] We will affirm if the trial court’s decision to sustain the demurrer was correct on any theory. [Citations.]” (Id. at pp. 538-539.)
CEQA is not applicable to “[p]rojects which a public agency rejects or disapproves.” (Pub. Res. Code, § 21080, subd. (b)(5).) Based upon the foregoing code section, plaintiffs could not have brought an action under CEQA for the County’s rejection of HLI’s conditional use permit application. Consequently, as a matter of law, plaintiffs’ CEQA cause of action is not viable. Therefore, the trial court did not err by sustaining the County’s demurrer.
Plaintiffs assert that the foregoing statute (Pub. Res. Code, § 21080, subd. (b)(5)) is not applicable to the instant case, because it is a general statute that has been superseded by a more specific provision relating to residential developments. The “more specific provision” cited by plaintiffs is Government Code section 65589.5, subdivision (b), which provides: “It is the policy of the state that a local government not reject or make infeasible housing [developments], that contribute to meeting the need [of affordable housing] without a thorough analysis of the economic, social, and environmental effects of the action....”
We do not need to analyze whether Government Code section 65589.5 has superseded Public Resources Code section 21080, because plaintiffs have not demonstrated how their project contributes to meeting the community’s need for affordable housing. It is not this court’s responsibility to make plaintiffs’ arguments for them, and therefore our analysis of this issue need not proceed any further. (Mansell, supra,30 Cal.App.4th at p. 545.)
G. DEMURRER-INVERSE CONDEMNATION
Plaintiffs contend that if this court reverses the trial court’s ruling denying the petition for a writ of mandate, then we should also reverse the trial court’s ruling dismissing plaintiffs’ cause of action for inverse condemnation. We have not granted relief to plaintiffs in regard to their petition for a writ of mandate, and therefore, we do not discuss this issue.
H. EXHAUSTION
The County contends that a variety of plaintiffs’ contentions are barred, because plaintiffs did not exhaust their administrative remedies. We elected to address the merits of plaintiffs’ arguments, because the issues were easily resolved. Therefore, we do not analyze the County’s contentions concerning exhaustion.
I. EXCLUSIVE REMEDY
The County asserts that a party must bring actions concerning Government Code section 65589.5, subdivision (j), via a petition for a writ of mandate. Government Code section 65589.5, subdivision (m), provides that a party seeking to enforce the provisions of Government Code section 65589.5 must seek relief via a petition for an administrative writ of mandate (Code Civ. Proc., § 1094.5); then, if the party wants “to obtain appellate review of the [trial court’s] order, [the party must] file a petition.” Rather than determine whether a petition for an administrative writ of mandate is plaintiffs’ exclusive remedy, we chose to address the merits of plaintiffs’ contention, because the issues were easily resolved. Accordingly, we do not discuss the County’s contention.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur, HOLLENHORST Acting P. J., KING J.