Jana Zimmer vs County of Santa Barbara et al
Jana Zimmer vs County of Santa Barbara et al
Case Number
24CV00199
Case Type
Hearing Date / Time
Mon, 02/24/2025 - 10:00
Nature of Proceedings
Demurrer to First Amended Complaint
Tentative Ruling
Jana Zimmer, etc., v. County of Santa Barbara, et al.
Case No. 24CV00199
Hearing Date: February 24, 2025
HEARING: Demurrer of Defendants to First Amended Complaint/ Petition
ATTORNEYS: For Plaintiff and Petitioner Jana Zimmer, individually and as trustee of the Solomon-Zimmer Living Trust: Andrea Marcus; Richard C. Solomon
For Defendants and Respondents County of Santa Barbara, Board of Supervisors of the County of Santa Barbara, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard: Rachel Van Mullem, Callie Kim, Office of the Santa Barbara County Counsel
TENTATIVE RULING:
The demurrer of defendants and respondents to plaintiff and petitioner’s first amended complaint is (1) sustained, without leave to amend, as to the first and third causes of action as to all defendants, (2) is sustained, without leave to amend, as to the fourth cause of action as to defendants Board of Supervisors of the County of Santa Barbara, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard, (3) is overruled as to the second and fifth causes of action as to all defendants, and (4) is overruled as to the fourth cause of action as to defendant County of Santa Barbara. Defendants shall file and serve their answer to the first amended complaint, as it exists following the sustaining of demurrers herein, on or before March 10, 2025.
Background:
(Note: The operative pleading is both a complaint and a petition. For ease of writing, the court refers to the pleading herein as a complaint, and the parties as plaintiff and defendants, respectively.)
As alleged in plaintiff’s first amended complaint (FAC):
Plaintiff Jana Zimmer, individually and as trustee of the Solomon-Zimmer Living Trust (in either or both capacities, Zimmer) owns and resides at real property located at 2640 and 2642 Las Encinas Lane, Santa Barbara (the Property). (FAC, ¶ 14.) The Property is in the Mission Canyon Plan area and consists of approximately one-half acre in a 1-E-1 Zone District. (Ibid.)
The Property has been served, since at least 1973, by a paved private road over which Zimmer has a 15-foot-wide easement. (FAC, ¶ 14.) The easement is over property primarily owned by the Museum of Natural History and also serves neighbors located at 2646 Las Encinas (which is within the City of Santa Barbara), 2636, 2620, and 2589 Puesta Del Sol. (Ibid.)
The Property is currently developed with a single-family residence and an attached, approved residential second unit (RSU). (FAC, ¶ 15.)
In August 2022, Zimmer proposed a “development project” which included (1) conversion of the existing RSU to a junior accessory dwelling unit (JADU), and (2) construction of a new, 1200-square-foot single-family residence as a caregiver unit (Caregiver Unit). (FAC, ¶ 15.) The new residence had been approved, but not yet built, as an accessory dwelling unit (ADU), as authorized under Government Code section 65858.2. (Ibid.) Defendants (defined below) approved the building permit, No. 22 BDP 00357, and a fire protection certificate, No. 22 FPC 00163 (FPC), for the Caregiver Unit, in April and June 2022, as consistent with all laws applicable in “Very High Fire Hazard Areas,” subject to State minimum fire safe regulations. (FAC, ¶ 16.) The Fire Marshal approved the fire protection certificate with a condition requiring “sprinklering” of the new dwelling, as a measure providing “same practical effect” as the fire equipment access requirement to Zimmer’s parcel. (Ibid.)
Zimmer relied on the terms of the approved building permit and the approved FPC, and, in consultation with County Fire (Captain Gray), proceeded to perform substantial improvements on the property, including widening of the lane along her frontage, widening of her driveway to 17 feet, enlargement of her on-site parking area, and limbing of mature oak trees along her frontage and her driveway to a minimum height of 13 feet 5 inches, all as required by the Fire Marshal. (FAC, ¶ 24.)
Zimmer then ascertained that construction under the approved building permit would put her existing home at unacceptable risk, in part because she would lose her existing fire insurance if she built on her existing lot. (FAC, ¶ 25.) She also ascertained, from her insurance company, that if the new dwelling is financed separately and constructed on a separate parcel, this risk of proceeding under her approved building permit would be eliminated. (Ibid.) Zimmer sought a
meeting on August 22, 2022, with defendants Fire Marshal Rob Hazard, Planning Director Lisa Plowman, or Deputy Planning Director Travis Seawards, and a representative from County Counsel to review and clarify the specific applicability of Government Code section 65913.4.6, subdivision (D), to confirm that the “sprinklering” to which Zimmer had already agreed would be applicable and sufficient if the approved dwelling were constructed on its own lot. (Ibid.)
Defendants Plowman, Seawards, and the Fire Marshal declined to meet and instead demanded that Zimmer submit a full application for a lot split, which she did on December 20, 2022, along with a written agreement for permit processing, and a fee deposit of $10,451. (FAC, ¶ 26.) Every six months thereafter, Zimmer applied to extend her building permit so that it would not expire while the application for the lot split was pending. (Ibid.) Each extension was granted until the request of July 21, 2024, to which there was no response. (Ibid.)
On June 14, 2023, the Fire Marshal sent Zimmer a letter stating that the Property does not currently meet fire code standards required to be eligible for a ministerial lot split approval under S.B. 9. (FAC, ¶ 27 & exhibit B.) The letter concludes:
“The Fire Department has determined that in order to consider Same Practical Effect for your proposed SB 9 lot split, your access deficiencies require approved and installed improvements. One of the following two improvements would be considered as meeting Same Practical Effect for access requirements as it relates to your proposed lot split:
“1. Construct an approved Fire Department turnaround meeting the requirements of Fire Department Development Standard # 1. You would have to provide plans drawn by a licensed professional to show the turnaround meets or is equivalent to the requirements in our standard for turnarounds.
“2. Improve Las Encinas Road to ensure all portions of the road to your parcel is constructed to the maximum extent of your allowed easement of 15 feet. The road shall be paved and have a clear width of 15 feet and a vertical clearance of 13.5 feet.
“The above options if pursued shall be approved and installed prior to map recordation.” (FAC, exhibit B, p. 130.)
The Fire Marshall knew or should have known that Zimmer could not comply with the requirements stated in the June 14, 2023, letter. (FAC, ¶ 27.)
As of the filing of the FAC, defendants have failed to take action to approve or deny the application for lot split. (FAC, ¶ 27.) The Fire Marshall has refused to determine whether additional measures proposed and completed by Zimmer since June 14, 2023, have the “same practical effect” as the options set forth in the June 14 letter. (FAC, ¶ 28.) The Fire Marshall has refused to inspect the Property to confirm that Zimmer has substantially achieved the lane widening that was required. (Ibid.)
Defendants suspended processing Zimmer’s application on June 23, 2023, with a demand that Zimmer physically construct improvements not on her Property in violation of law. (FAC, ¶ 33.)
Defendant Board of Supervisors adopted amendments to their Safety Element on July 11, 2023, including minimum road width requirements which, if applied as mandatory, purported to add new requirements which defendants knew Zimmer could not meet. (FAC, ¶ 51.)
On January 16, 2024, Zimmer filed her original petition and complaint in this matter asserting seven causes of action: (1) violations of the Permit Streamlining Act (Gov. Code, § 65920 et seq.); (2) writ of mandate and damages for violations of Government Code section 66411.7; (3) for writ of mandate and damages for violations of Government Code section 65589.5 et seq.; (4) breach of implied covenant of good faith and fair dealing; (5) declaratory judgment re violations of Government Code sections 65913.4, subdivision (a)(6)(D), and 66411.7, subdivision (a)(3)(c); (6) writ of mandate, damages, and penalties for violation of the Housing Accountability Act (Gov. Code, §§ 65913.4, subd. (a)(6)(D), 65589.5, subds. (j)(2)(B), (j)(4), (k)(1)(A)(ii)); (7) writ of mandate and damages for violations of the California Public Records Act (Gov. Code, § 6250 et seq.).
On March 12, 2024, defendants filed their demurrer as to each of the causes of action of the complaint and concurrently filed a motion to strike. On July 1, 2024, the court sustained the demurrer with leave to amend as to each cause of action and ordered the motion to strike off calendar as moot.
On August 9, 2024, Zimmer filed her FAC. The FAC asserts five causes of action: (1) violations of the Permit Streamlining Act (Gov. Code, § 65920 et seq.); (2) writ of mandate and damages for violations of Government Code section 66411.7; (3) for writ of mandate and damages for violations of Government Code section 65589.5 et seq.; (4) breach of written contract, tortious breach of contract, breach of the implied covenant of good faith and fair dealing; and (5) declaratory judgment. Defendants in this action are the County of Santa Barbara (County), the Board of Supervisors of County (Board of Supervisors), Supervisor Das Williams, Planning Director Lisa Plowman, Deputy Planning Director Travis Seawards, and Fire Marshal Rob Hazard. The first, second, third, fourth (for damages), and fifth causes of action are asserted against all defendants; the fourth cause of action (for punitive damages) is asserted against Williams, Hazard, Plowman, and Seawards.
Defendants demur to each of the causes of action of the FAC. The demurrer is opposed by Zimmer.
Analysis:
“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)
(1) Requests for Judicial Notice
In connection with the court’s ruling on the prior demurrer, the court granted various requests of the parties for judicial notice. In opposition to the demurrer, Zimmer has made a supplemental request for judicial notice: (Plaintiffs’ Supplemental Request for Judicial Notice, filed Oct. 31, 2024, exhibit 1) Stats. 2024, ch. 286 (Sen. Bill No. 450 [2023-2024 Reg. Sess.]); (exhibit 2) Cal. Dept. of Housing and Community Development, SB Fact Sheet (2024); (exhibit 3) Assn. of Bay Area Governments, Senate Bill 9 – Ministerial Urban Lot Splits & Two Unit Developments, Frequently Asked Question (FAQ); and (exhibit 4) Southern Cal. Assn. of Governments, SB 9: Ministerial Approval of Duplexes and Urban Lot Splits. The court will grant these requests for judicial notice. (See Evid. Code, § 452, subds. (a), (c).) The court notes that the court does not take judicial notice of the truth of factual statements in documents for which judicial notice is granted.
Zimmer made a second supplemental request for judicial notice: (Plaintiffs’ Second Supplemental Request for Judicial Notice, filed Nov. 6, 2024, exhibit 5) printout re permit 22BDP-00000-00357; (exhibit 6) email dated June 22, 2022; (exhibit 7) email dated July 18, 2024; (exhibit 8) Board of Supervisors Agenda Letter, dated Aug. 31, 2021. With respect to exhibits 5, 6, and 7, these exhibits are relevant only to the extent that the underlying factual statements are incontrovertibly true. Insofar as these statements made are subject to dispute (including dispute as to completeness or characterization), the requests for judicial notice will be denied. (See Evid. Code, § 452, subd. (h).) With respect to exhibit 8, there is insufficient information for which the court takes judicial notice or as alleged in the complaint to demonstrate that the Board of Supervisor’s action in a different, unrelated matter is relevant to the disposition of this pleading challenge. This request for judicial notice will be denied. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063; Evid. Code, § 453, subd. (b).)
(2) Permit Streamlining Act
Zimmer’s first cause of action is for violation of the Permit Streamlining Act (PSA). Zimmer alleges that her proposed lot split is a “housing development project” under Government Code section 65943, subdivision (g). (FAC, ¶ 54.)
“The PSA was enacted in 1977 ‘to relieve applicants from protracted and unjustified governmental delays in processing their permit applications.’ [Citation; fn.] To expedite decisions on development projects, the PSA sets out specific time limits within which a government agency must approve or disapprove an application for a land use permit. ([Gov. Code,] § 65950.) If the agency fails to expressly approve or disapprove an application within the applicable period, ‘the failure to act shall be deemed approval of the permit application for the development project.’ (§ 65956, subd. (b).)” (Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219–1220.)
The time requirements for approval or disapproval of a “development project” under the PSA is set forth in Government Code section 65950, subdivision (a) [“A public agency that is the lead agency for a development project shall approve or disapprove the project within whichever of the following periods is applicable ….”].)
“ ‘Development project’ means any project undertaken for the purpose of development. ‘Development project’ includes a project involving the issuance of a permit for construction or reconstruction but not a permit to operate. ‘Development project’ does not include any ministerial projects proposed to be carried out or approved by public agencies.” (Gov. Code, § 65928, italics added.)
“ ‘Development’ means, on land, in or under water, the placement or erection of any solid material or structure; … change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act (commencing with Section 66410 of the Government Code), and any other division of land except where the land division is brought about in connection with the purchase of such land by a public agency for public recreational use ….” (Gov. Code, § 65927, 1st par.)
“ ‘Project’ means any activity involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (Gov. Code, § 65931.)
In opposition to this demurrer, Zimmer points to language added to Government Code section 65943 that was effective January 1, 2023: “For purposes of this section, ‘development project’ includes a housing development project as defined in paragraph (3) of subdivision (b) of Section 65905.5.” (Gov. Code, § 65943, subd. (g).) Section 65905.5, subdivision (b)(3) provides:
“(A) ‘Housing development project’ has the same meaning as defined in paragraph (2) of subdivision (h) of Section 65589.5.
“(B) ‘Housing development project’ includes, but is not limited to, projects that involve no discretionary approvals and projects that involve both discretionary and nondiscretionary approvals.
“(C) ‘Housing development project’ includes a proposal to construct a single dwelling unit. This subparagraph shall not affect the interpretation of the scope of paragraph (2) of subdivision (h) of Section 65589.5.”
Section 65589.5, subdivision (h)(2) in turn provides:
“ ‘Housing development project’ means a use consisting of any of the following:
“(A) Residential units only.
“(B) Mixed-use developments consisting of residential and nonresidential uses that meet any of the following conditions … [¶] … [¶]
“(C) Transitional housing or supportive housing.
“(D) Farmworker housing, as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code.”
Zimmer argues that her project is a “housing development project” and therefore also a “development project” subject to the PSA regardless of whether the project is only a “ministerial project.” (E.g., FAC, ¶ 64.) Zimmer’s argument contrasts the definition in section 65928, which expressly excludes ministerial projects, with the definition in section 65905.5, subdivision (b)(3)(B) which defines a “housing development project” to include projects that involve no discretionary approvals. A careful review of the statutory language, however, demonstrates that these provisions are not contradictory.
Even if Zimmer’s “project” were a “housing development project” (the correctness of which assumption is addressed below), the definitions asserted by Zimmer are not relevant to this cause of action. The definition of “development project” in section 65943, subdivision (g) that includes a “housing development project” is expressly “for the purposes of” section 65943. Section 65943 has a 30-day deadline to determine completeness of an application for a development project. The first cause of action is not to compel a determination that Zimmer’s application was complete, but instead to compel a determination that Zimmer’s application for a lot split has been approved by operation of law. (FAC, prayer, p. 112.) Section 65943’s definition in subdivision (g) is not carried over to section 65956, which uses the general definition of “development project” found in section 65928 expressly excluding ministerial projects.
The application of the general definition of “development project” in section 65928 makes sense in this context. (See Gov. Code, § 65920, subd. (b).) Section 65956 deems a development project approved by default only where public notice required by law has occurred. (Gov. Code, § 65956, subd. (b).) The public notice and public hearing requirement of section 65956, subdivision (a) would ordinarily relate to actions which are not ministerial projects, hence the general exclusion of ministerial projects from the applicable definition.
Moreover, and more generally, the “project” which is proposed by Zimmer is a lot split, not a “housing development project” as defined in sections 65905.5, subdivision (b)(3), 65589.5, subdivision (h)(2), and 65943, subdivision (g), all of which involve a project consisting of the development of residential units. As Zimmer herself defined the project, the lot split project is independent of the project for the construction of the ADU. This independence is significant because the approval of the ADU project was based upon construction on the same lot, not on a different lot, which, by contrast, is the purpose of the proposed lot split. (See Gov. Code, § 66314, subd. (d)(3) [the accessory dwelling unit must either be attached to the primary dwelling or detached and located on the same lot as the primary dwelling].)
This analysis is consistent with the recent amendment to section 66411.7 by Senate Bill No. 450 (2023-2024 Reg. Sess.) (S.B. 450), effective January 1, 2025, adding subdivision (b)(1)(B), which now provides: “An application for an urban lot split shall be considered and approved or denied within 60 days from the date the local agency receives a completed application. If the local agency has not approved or denied the completed application within 60 days, the application shall be deemed approved.” (Stats. 2024, ch. 286, § 2.) As the legislative history of S.B. 450 indicates, the bill was intended to make clarifying changes to existing law by, among other things, providing a deadline for ministerial lot splits by which inaction would be deemed approval. (Sen. Com. on Housing, Rep. on Sen Bill No. 450 (2023-2024 Reg. Sess.) Apr. 18, 2023, p. 6.) The fact that this provision was an intended change from existing law acknowledges that such a deadline did not exist under then-existing law. (Because Zimmer’s complaint seeks to compel compliance with prior law and necessarily cannot allege exhaustion of administrative remedies based on law and procedures that did not exist at the time of the filing of Zimmer’s petition, the court does not consider whether, or to what extent, later-enacted law might affect Zimmer’s project if submitted to the County under current law. By the same token, the disposition of this cause of action as it relates to prior law is without prejudice to any post-filing administrative submissions or proceedings that may occur.)
Because the lot split is a “development” and a “project” under the definitions of sections 65931 and 65927, and because the section 66411.7 lot split is expressly ministerial, but is also expressly excluded from the definition of “development project” under the third sentence of section 65928, the definitions of the PSA exclude the ministerial lot split from the application of the PSA. Consequently, the project at issue is alleged to be a ministerial project not subject to the PSA. The demurrer to the first cause of action will therefore be sustained. Insofar as this ruling is based upon the inapplicability of the PSA to the project, the demurrer will be sustained without leave to amend.
(3) SB 9 Lot Split
Zimmer’s second cause of action is for violation of Government Code section 66411.7. Defendants demur to this cause of action arguing that the complaint fails to allege facts to show that the County had a mandatory duty to approve the requested lot split. Zimmer argues that she has alleged compliance with Government Code section 66411.7 entitling her to a ministerial lot split.
“Notwithstanding any other provision of this division and any local law, a local agency shall ministerially approve, as set forth in this section, a parcel map for an urban lot split only if the local agency determines that the parcel map for the urban lot split meets all the following requirements:
“(1) The parcel map subdivides an existing parcel to create no more than two new parcels of approximately equal lot area provided that one parcel shall not be smaller than 40 percent of the lot area of the original parcel proposed for subdivision.
“(2) (A) Except as provided in subparagraph (B), both newly created parcels are no smaller than 1,200 square feet.
“(B) A local agency may by ordinance adopt a smaller minimum lot size subject to ministerial approval under this subdivision.
“(3) The parcel being subdivided meets all the following requirements:
“(A) The parcel is located within a single-family residential zone.
“(B) The parcel subject to the proposed urban lot split is located within a city, the boundaries of which include some portion of either an urbanized area or urban cluster, as designated by the United States Census Bureau, or, for unincorporated areas, a legal parcel wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau.
(C) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.
(D) The proposed urban lot split would not require demolition or alteration of any of the following types of housing:
(i) Housing that is subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of moderate, low, or very low income.
(ii) Housing that is subject to any form of rent or price control through a public entity’s valid exercise of its police power.
(iii) A parcel or parcels on which an owner of residential real property has exercised the owner's rights under Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 to withdraw accommodations from rent or lease within 15 years before the date that the development proponent submits an application.
(iv) Housing that has been occupied by a tenant in the last three years.
(E) The parcel is not located within a historic district or property included on the State Historic Resources Inventory, as defined in Section 5020.1 of the Public Resources Code, or within a site that is designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.
(F) The parcel has not been established through prior exercise of an urban lot split as provided for in this section.
(G) Neither the owner of the parcel being subdivided nor any person acting in concert with the owner has previously subdivided an adjacent parcel using an urban lot split as provided for in this section.” (Gov. Code, § 66411.7, subd. (a).)
“An application for a parcel map for an urban lot split shall be approved in accordance with the following requirements:
“(1) A local agency shall approve or deny an application for a parcel map for an urban lot split ministerially without discretionary review.
“(2) A local agency shall approve an urban lot split only if it conforms to all applicable objective requirements of the Subdivision Map Act (Division 2 (commencing with Section 66410)), except as otherwise expressly provided in this section.
“(3) Notwithstanding Section 66411.1, a local agency shall not impose regulations that require dedications of rights-of-way or the construction of offsite improvements for the parcels being created as a condition of issuing a parcel map for an urban lot split pursuant to this section.” (Gov. Code, § 66411.7, subd. (b).)
Under section 66411.7, subdivision (a)(3)(C), in order to qualify for ministerial approval, the local agency must find that the “parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4.” The requirements of section 65913.4 include:
“The development is not located on a site that is any of the following: [¶] … [¶] (D) Within a very high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178, or within the state responsibility area, as defined in Section 4102 of the Public Resources Code. This subparagraph does not apply to sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development, including, but not limited to, standards established under all of the following or their successor provisions:
“(i) Section 4291 of the Public Resources Code or Section 51182, as applicable.
“(ii) Section 4290 of the Public Resources Code.” (Gov. Code, § 65913.4, subd. (a)(6)(D).)
Zimmer alleges that the Property is located within a designated very high fire hazard severity zone, but argues that her lot split is excluded from the requirements of section 65913.4, subdivision (a)(6)(D) because the Fire Marshal has approved specific fire hazard mitigation measures. (FAC, ¶¶ 2, 71.2, 142, 174.6.) The County argues that Zimmer has failed to allege compliance with, or an exception to, the requirements of section 65913.4.
Section 65913.4 provides for ministerial approval of a lot split “only if” the local agency makes various determinations. The local agency determination is in part a legal determination and in part a factual determination. While ministerial approval follows based upon the local agency’s determinations, the fact finding underlying those determinations is reviewable on a petition for a writ of mandate. (See Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277, 298–301.) Here, Zimmer alleges that she has complied with all requirements of the Fire Marshal that are legally necessary for the ministerial approval. (E.g., FAC, ¶¶ 20.1, 27, 28.) Zimmer has alleged that other requirements asserted by the Fire Marshal are unnecessary or illegal. (E.g., FAC, ¶ 29, 50-52.) In order to determine the validity of Zimmer’s allegations, the court must assess the underlying facts as a whole. This is outside the scope of a demurrer, which tests only the sufficiency of the pleadings. Based on this standard, the court will overrule the demurrer to the second cause of action. Nothing in this ruling should be construed by either party as implying any disposition on the merits of Zimmer’s claim when considered upon a full and complete record.
(4) Housing Accountability Act
Zimmer’s third cause of action is based upon alleged noncompliance with Government Code section 65589.5.
“A local agency shall not disapprove a housing development project, including farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code, for very low, low-, or moderate-income households, or an emergency shelter, or condition approval in a manner that renders the housing development project infeasible for development for the use of very low, low-, or moderate-income households, or an emergency shelter, including through the use of design review standards, unless it makes written findings, based upon a preponderance of the evidence in the record, as to one of the following: [¶] … [¶]
“(2) The housing development project or emergency shelter as proposed would have a specific, adverse impact upon the public health or safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low- and moderate-income households or rendering the development of the emergency shelter financially infeasible. As used in this paragraph, a ‘specific, adverse impact’ means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. The following shall not constitute a specific, adverse impact upon the public health or safety:
“(A) Inconsistency with the zoning ordinance or general plan land use designation.
“(B) The eligibility to claim a welfare exemption under subdivision (g) of Section 214 of the Revenue and Taxation Code.” (Gov. Code, § 65589.5, subd. (d)(2).)
“Except as provided in subdivision (o), nothing in this section shall be construed to prohibit a local agency from requiring the housing development project to comply with objective, quantifiable, written development standards, conditions, and policies appropriate to, and consistent with, meeting the jurisdiction’s share of the regional housing need pursuant to Section 65584. However, the development standards, conditions, and policies shall be applied to facilitate and accommodate development at the density permitted on the site and proposed by the development.” (Gov. Code, § 65589.5, subd. (f)(1).)
Zimmer alleges that since July 20, 2023, she has submitted evidence to the County that demonstrates that no reasonable person can conclude that her lot split is inconsistent with any applicable policies, standards, or ordinances. (FAC, ¶ 97.) Zimmer also alleges that “[f]or purposes of compliance with the Housing Accountability Act/ Housing Crisis Act, as amended by SB 8, and as applied in this case, a lot split which is specifically coupled with construction of an approved single dwelling unit must be defined as a ‘housing development,’ ” citing Government Code sections 65905.5, subdivision (b)(3)(C) and 65943, subdivision (g). (FAC, ¶ 94.)
Defendants argue that section 65589.5 does not apply to Zimmer’s development as alleged.
Government Code section 65905.5 is inapplicable to this cause of action.
“(a) Notwithstanding any other law, if a proposed housing development project complies with the applicable, objective general plan and zoning standards in effect at the time an application is deemed complete, after the application is deemed complete, a city, county, or city and county shall not conduct more than five hearings pursuant to Section 65905, or any other law, ordinance, or regulation requiring a public hearing in connection with the approval of that housing development project. If the city, county, or city and county continues a hearing subject to this section to another date, the continued hearing shall count as one of the five hearings allowed under this section. The city, county, or city and county shall consider and either approve or disapprove the application at any of the five hearings allowed under this section consistent with the applicable timelines under the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920)).” (Gov. Code, § 65905.5, subd. (a).)
“(b) For purposes of this section: [¶] … [¶]
“(3) (A) ‘Housing development project’ has the same meaning as defined in paragraph (2) of subdivision (h) of Section 65589.5.
“(B) ‘Housing development project’ includes, but is not limited to, projects that involve no discretionary approvals and projects that involve both discretionary and nondiscretionary approvals.
“(C) ‘Housing development project’ includes a proposal to construct a single dwelling unit. This subparagraph shall not affect the interpretation of the scope of paragraph (2) of subdivision (h) of Section 65589.5.” (Gov. Code, § 65905.5, subd. (b)(3).)
As the above quotation demonstrates, the definition cited by Zimmer refers only to “this section” which in turn relates to a limitation in the number of permissible hearings. Thus, this definition is not particularly helpful. However, section 65589.5 supplies its own definition of “housing development project” of sorts:
“The following definitions apply for the purposes of this section: [¶] … [¶]
“(2) ‘Housing development project’ means a use consisting of any of the following:
“(A) Residential units only.
“(B) Mixed-use developments consisting of residential and nonresidential uses with at least two-thirds of the square footage designated for residential use.
“(C) Transitional housing or supportive housing.” (Gov. Code, § 65589.5, subd. (h)(2).)
After a lengthy analysis of this definition, the court in Reznitskiy v. County of Marin (2022) 79 Cal.App.5th 1016, 1037 concluded: “Given the statutory context in which the definition of ‘housing development project’ appears and the legislative history, we hold that the [Housing Accountability Act (HAA)] does not apply to projects to build individual single-family homes.” Zimmer’s allegation to the contrary therefore is an incorrect legal proposition.
Here, as noted previously, the development project that is the basis for this cause of action is alleged as the lot split not the construction of housing. Under the statutory definition, as interpreted by Reznitskiy, supra, an urban lot split is not a “housing development project” under section 65589.5. As with the arguments made in connection with the first cause of action, Zimmer has not alleged facts to alter the court’s analysis in sustaining the demurrer to this cause of action in the original complaint. As discussed above, under the circumstances as they are alleged now to exist, Zimmer has received the benefit of characterizing the ADU permit process as a project separate from the lot split by utilizing provisions applicable to the construction of an ADU on a single lot. Zimmer now argues a different characterization of her project to take advantage of other provisions incompatible with her original characterization of her project. Under the law applicable to this proceeding, Zimmer has not alleged a violation of section 65589.5.
The demurrer to the third cause of action will therefore be sustained. As with the first cause of action, this determination is based upon applicability of section 65589.5 to the project under the allegations of the FAC, and the demurrer will be sustained without leave to amend.
(5) Breach of the Implied Covenant of Good Faith and Fair Dealing
Zimmer’s fourth cause of action is for damages based on breach of written contract, tortious breach of contract, and breach of the implied covenant of good faith and fair dealing.
Defendants first argue that the court should disregard claims of breach of contract in the FAC because Zimmer asserted only a cause of action for breach of the implied covenant in the original complaint and leave to amend did not expressly permit the addition of other causes of action. As the court noted in ruling on the demurrer to this cause of action in the original complaint, “Breach of the covenant of good faith and fair dealing is nothing more than a cause of action for breach of contract.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1344.) Further articulation of allegations of breach of contract is clearly within the scope of the court’s leave to amend.
Zimmer alleges the contract to be the agreement for payment of fees to process her application. (FAC, ¶ 113 & exhibit F.) Exhibit F is a form alleged to have come from County and on its face is an agreement between Zimmer and County for the payment of fees for the processing of her application. As discussed above in the context of the second cause of action, Zimmer has sufficiently alleged, for pleading purposes, a claim for failure to process her ministerial lot split application in violation of Government Code section 65913.4, including by the Zimmer’s allegations that the County made illegal demands in the processing of that application. Under the standards for pleading, this is a sufficient allegation of a contract for the processing of the application which is breached by County’s alleged failure to process the application as required by law. While the court agrees with County that there is no basis for tort damages under this cause of action (see Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49), a demurrer does not lie as to part of a cause of action or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The demurrer to this cause of action will be overruled as to defendant County.
Defendants make the additional argument with respect to this cause of action that individually named defendants cannot be liable for breach of contract because they are not parties to the contract. The alleged contract (FAC, exhibit F) is expressly an agreement with County and not with any individual with the County. “ ‘[A]n agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal.’ [Citations.]” (Dones v. Life Insurance Company of North America (2020) 55 Cal.App.5th 665, 689.) There are no allegations by which any individual defendant would be liable under the alleged contract. The demurrer will be sustained without leave to amend as to the individual defendants on this cause of action.
(6) Declaratory Relief
Zimmer’s fifth cause of action in the FAC (formerly the sixth cause of action in the original complaint) is for declaratory relief. As noted by the parties, the fifth cause of action seeks alternative relief based upon the same claims asserted in the first and second causes of action. As discussed above, as a matter of pleading, the court will overrule the demurrer to the second cause of action. For the same reason, the court will overrule the demurrer to this cause of action as derivative of the same claims.