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,                                   A135094

v.                                                                    (Napa County
COUNTY OF NAPA,                                                       Super. Ct. No. 26-50568)
         Defendant and Respondent.


         Latinos Unidos Del Valle de Napa y Solano (Latinos Unidos)1 and 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 “non-
discriminatory 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.

                                                            1
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

                                              2
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.)4 The 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.”

                                                3
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.
                                                4
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.)

                                               5
       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).)


                                              6
       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.
                                               7
       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 lower-
income 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.

                                             8
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.

                                              9
       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.

                                              10
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

                                             11
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

                                             12
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

                                              13
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

                                              14
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

                                              15
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.

                                             16
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.”

                                                17
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 build-
out 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.
                                              18
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 on-
going 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

                                              19
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




                                             20
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.
                                             21
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.
                                             22
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.”

                                               23
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 moderate-
income 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
                                                 24
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.

                                                25
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

                                              26
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

                                             27
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.”


                                             28
       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

                                              29
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

                                                 30
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

                                              31
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 objected-
to 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

                                             32
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.

                                              33
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.

                                              34
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

                                              35
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].”
                                               36
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.

                                              37
       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

                                             38
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.
                                              39
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.”

                                            40
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.”

                                                  41
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.”

                                             42
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.




                                              43
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.




                                               1
                            |
                 }
                 þ 9
                   2
            }8
            |2
            ·1
            þ           Calistoga




                                                                                                            Spanish Flat


      Angwin
                                     St. Helena
                                                                                     |
                                                                        }
                                                                        þ 9
                                                                          2
                                                                                                             |
                                                                                                       }
                                                                                                       þ
                                                                                                       9
                                                                                                       2

                                                                                                           Moskowite Corner
                                                               |
                                                      }
                                                      þ 9
                                                        2
                                                  Yountville


                                                                                                   }
                                                                                                   |
                                                                                           1
                                                                                           2
                                                                                           þ


                                                               Napa
                                                                                     }
                                                                                     |
                                                                         1
                                                                         2
                                                                        |þ
                                                                        }
                                                               1
                                                               2
                                                               þ
                                     Napa Pipe                        American                 }
                                                                                               |
                                                                                     1
                                                                                     2
                                                                       Canyon        þ

0          5      10 Miles
                                                                                          |
                                                                              }
                                                                              þ  9
                                                                                 2

                                                                                                                 FIGURE H-1-1
Priority Housing Development Sites

                                                                                         LOCATION OF PRIORITY HOUSING
                                                                                                   DEVELOPMENT SITES

                                                                                                         COUNTY OF NAPA
                                                                                                HOUSING ELEMENT UPDATE
                                                                                              SITES INVENTORY AND ANALYSIS
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. Tepperman-
                                         Gelfant 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
