Jana Zimmer, etc., v. County of Santa Barbara, et al.

Case Number

24CV00199

Case Type

Hearing Date / Time

Fri, 11/07/2025 - 09:00

Nature of Proceedings

Hearing on Writ of Mandate

Tentative Ruling

Jana Zimmer, etc., v. County of Santa Barbara, et al. 

Case No. 24CV00199

           

Hearing Date: November 7, 2025                                                      

HEARING:              Hearing on Writ of Mandate

ATTORNEYS:        For Petitioner Jana Zimmer, individually and as Trustee of the Solomon-Zimmer Living Trust: Andrea Marcus; Richard C. Solomon  

                                    For Respondents County of Santa Barbara, Board of Supervisors of the County of Santa Barbara, Lisa Plowman, Rob Hazard, Travis Seawards, and Das Williams, as Supervisor: Rachel Van Mullem, Callie Kim, Office of the County Counsel

                                   

TENTATIVE RULING:

The court addresses issues with respect to the petition for writ of mandate as set forth herein and will hear argument concerning these issues at the hearing on November 7. As to all remaining issues, the hearing on the petition for writ of mandate will be continued to Friday, January 30, 2026, at 10:00 a.m. (special setting). The parties shall file and serve supplemental briefing addressing only the issues set forth herein on or before December 5, 2025. The parties may file and serve a response to the opposing parties’ supplemental brief on or before January 9, 2026. No other or further briefing is permitted.

Background:

This proceeding arises from the efforts of petitioner and plaintiff Jana Zimmer, individually and as Trustee of the Solomon-Zimmer Living Trust (in all capacities, Zimmer) to obtain a lot split of her parcel of real property from respondent and defendant County of Santa Barbara (County).

(Note: The operative pleading is both a complaint and a petition. This hearing involves only Zimmer’s petition for issuance of a writ of mandate. Where appropriate, the court will refer to the pleading herein as a petition, and the parties as petitioner and respondents, respectively.)

(1)       Procedural History

On January 16, 2024, Zimmer filed her original petition 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 first amended petition (FAP). The FAP 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, 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.

On February 24, 2025, the court sustained the demurrer as to the first and third causes of action without leave to amend, sustained the demurrer as to individual respondents without leave to amend, overruled the demurrer as to the second and fifth causes of action as to all respondents, and overruled the demurrer as to the fourth cause of action as to County.

On March 3, 2025, Zimmer filed supplemental allegations in support of the fourth cause of action against the individual respondents.

On June 3, 2025, the court entered its order on the stipulation of the parties bifurcating and addressing in phase 1 of trial Zimmer’s petition for writ of mandate under Code of Civil Procedure section 1085 for violations of Government Code section 66411.7, and leaving for phase 2 the two remaining claims for breach of contract and for declaratory relief.

On June 16, 2025, the court granted respondents’ motion to strike the supplemental allegations filed on March 3. The court also clarified its February 24 order that the demurrer to the fourth cause of action was sustained as to individual respondent Das Williams with leave to amend and that the amended complaint must be filed by June 30. No amended complaint was filed by Zimmer pursuant to this leave to amend.

On July 2, 2025, respondents filed their answer to the FAP, admitting and denying allegations thereof and asserting 21 affirmative defenses.

This proceeding is to adjudicate the bifurcated petition for writ of mandate.

(2)       Background Facts

Zimmer is the owner of real property located at 2640 Las Encinas Road, Santa Barbara (the Property). (Plaintiff’s Exhibits [PE], vol. 9, p. 2498 [9 PE 2498].) (Note: The parties do not cite to exhibits uniformly. Zimmer has filed 21 volumes of exhibits in support of the petition and has attached to the opening brief excerpts from those exhibits. These excerpts are apparently in the order in which they are cited in the opening brief. The page numbers for these exhibits run continuously from volume 1. The court will cite such exhibits in the form: [volume] PE [page].) The Property is located with a very high fire hazard severity zone in the maps adopted by the County and approved by the Department of Forestry and Fire Protection. (Tan decl., ¶ 5; Opening Brief, p. 8.) The Property is served by a private road, Las Encinas Road, which is a dead-end road that also provides access to four of Zimmer’s residential neighbors. (Tan decl., ¶ 4.)

On March 29, 2022, Zimmer applied for a building permit for a 1,200 square-foot, detached accessory dwelling unit (ADU) on the Property. (1 PE 111.) The permit was approved as Building Permit 22BDP-00357 (the Building Permit) and conditioned to require, among other things, an automatic fire sprinkler system. (9 PE 2498-2501.)

Shortly before the issuance of the Building Permit, on June 25, 2022, Zimmer sent an email to Plowman stating that with the increased costs of construction, supply chain issues, and rising interest rates, Zimmer was concerned that it would not be economically feasible to proceed with the construction of the ADU. (14 PE 3728.) Zimmer stated, “Having the ability to sell the parcel on which the ADU will be located separately would go a long way to mitigate the risks of proceeding in this unstable economic climate.” (Ibid.) Zimmer then asked questions about an SB 9 lot split. (14 PE 3729.) In response to Zimmer’s question, “[I]s there any basis on which P&D would or could deny a ministerial lot split?”, Plowman replied, “An SB9 project can be denied if it would have unmitigable and unavoidable adverse impact on public safety (e.g[.], inability to evacuate safely during emergency event).” (Ibid.)

On December 20, 2022, Zimmer submitted her application for the “SB-9 Lot Split.” (12 PE 3386; 20 PE 5472-5478.) (Note: “SB 9” refers to the legislation initially enacted as Statutes 2021, chapter 162, amending Government Code sections 65852.21, 66411.7, and 66452.6, and as subsequently further amended.)

On June 14, 2023, Fire Marshal Rob Hazard sent Zimmer a letter determining that the Property does not meet current standards to allow for a lot split under SB 9. (Tan decl., ¶ 6 & exhibit 1; 10 PE 2627-2628.) The letter states in part:

“The parcel being reviewed is located within the Local Responsibility Area (LRA) Very High Fire Hazard Severity Zone (VHFHSZ) as indicated on the approved county and state maps. Government Code Section 65913.4(a)(6)(D) prohibits SB 9 lot splits on parcels located within the LRA VHFHSZ unless the site has adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development. In Santa Barbara County, existing building standards are adopted in the Santa Barbara County Building Code (County Ordinance Chapter 10) and the Santa Barbara County Fire Code (County Ordinance Chapter 15). State fire mitigation measures applicable to your parcel are outlined in the California Code of Regulations Title 14, State Minimum Fire Safe Regulations. Due to being located within the LRAVHFHSZ, the Fire Department shall review for compliance with the adopted Santa Barbara County Fire Code or California Code of Regulations Title 14, State Minimum Fire Safe Regulations.

“Chapter 15 requires a 20 foot wide roadway when the access serves more than two

residential parcels. Title 14 requires a 20 foot wide roadway when it serves more than four residential units. Las Encinas Road is a private road that serves more than two residential parcels and more than four residential units. During a site visit, Las Encinas Road was measured at a width of 12 feet with one area narrowing to a width of 9.5 feet.

“In addition to the road width requirements, a requirement for dead-end roads to have a turnaround also exists. Las Encinas Road does not currently have a turnaround which meets the specifications outlined in the Fire Department’s Development Standard #1, which is adopted in the Santa Barbara County Fire Code.

“For the above reasons, the Fire Department has determined your parcel does not currently meet the standard for ministerial approval of a lot split under SB 9. We are submitting this finding to the Santa Barbara County Planning and Development Department for their consideration.

“There are provisions for the Fire Department to consider Same Practical Effect as a means of providing an alternative to code requirements. These alternatives shall provide for firefighter safety to include access for emergency equipment, safe civilian evacuation, signage that avoids delays in emergency apparatus response, and available and accessible water.

“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.” (10 PE 2627-2628.)

On June 26, 2023, Zimmer submitted plans for a hammerhead turnaround. (Tan decl., ¶ 10 & exhibit 2.) The Fire Department determined that the plans did not meet the Development Standard #1 minimum requirements. (Tan decl., ¶ 10.) Zimmer has not submitted plans that comply with the Same Practical Effect proposals of the June 14, 2023, letter. (Tan decl., ¶ 16.)

The County has failed to approve the lot split as proposed by Zimmer. (10 PE 2630.)

Analysis:

The above recitation of the facts is intended to provide sufficient background for the court’s analysis, and is not intended to be comprehensive. In making this ruling, the court has considered all of the evidence and arguments of the parties, whether or not discussed herein.

(1)       Standard of Review

Zimmer brings this writ petition as a petition for traditional writ of mandate under Code of Civil Procedure section 1085. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“The trial court’s standard of review in a mandamus proceeding depends upon the nature of the agency’s action. Pursuant to section 1085, a court may review both an agency’s ‘ministerial duties’ and ‘quasi-legislative’ actions. [Citation.] The trial court must ‘determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference.’ [Citation.] A ministerial duty is one ‘ “that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment.” [Citations.]’ [Citation.]” (Fair Education Santa Barbara v. Santa Barbara Unified School Dist. (2021) 72 Cal.App.5th 884, 893 (Fair Education).)

“The question of whether an entity’s action was ministerial or quasi-legislative is a question of statutory interpretation …. [Citation.] ‘ “ ‘We examine the “language, function and apparent purpose” ’ of the statute. [Citation.] ... ‘Even if mandatory language appears in [a] statute creating a duty, the duty is discretionary if the [public entity] must exercise significant discretion to perform the duty.’ [Citations.] Thus, in addition to examining the statutory language, we must examine the entire statutory scheme to determine whether the [entity] has discretion to perform a mandatory duty.” [Citation.]’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at p. 894.)

“[R]eview of a local entity’s legislative determination is ‘ “ ‘limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support. [Citation.]’ [Citation.].” ’ [Citation.] Ordinarily, ‘ “mandate will not lie to control a public agency’s discretion .... However, it will lie to correct abuses of discretion. [Citation.]” ’ [Citation.] Such deferential review of quasi-legislative activity ‘ “minimizes judicial interference in the interests of the separation of powers doctrine. [Citation.]” [Citation.]’ [Citation.]” (Fair Education, supra, 72 Cal.App.5th at pp. 894-895.) “Where there is an issue of statutory interpretation, courts will review such questions de novo and apply the ‘principles of statutory construction.’ [Citation.]” (Id. at p. 895.)

(2)       Issues Presented

Zimmer asserts that her proposed lot split meets all legal requirements and, in particular, the requirements upon which County relies are prohibited by statute. Thus, Zimmer frames the issues presented as follows:

“(1)      Gov. Code Section 66411.7(b)(3) expressly prohibits ‘offsite improvements’,

altogether. The construction of ‘offsite roadway improvements’ is not an objective standard under Gov. Code Section 66411.7 that is applicable to the development under Gov. Code Section 65913.4.6(D)

“(2)      Gov. Code Section 66411.7 has no provision for an ‘eligibility’ determination

prior to processing. The Map Act prohibits any performance of conditions prior to recordation of a lot split.

“(3)      Even if the County had the authority to require any offsite improvements, at any time, their refusal to consider improvements that Zimmer ‘voluntarily’ made, and to find ‘same practical effect’ was arbitrary and capricious under 14 C.C.R. 1270.07.” (Opening Brief, p. 3, emphasis and fn. omitted.)

In opposition, County relies upon its determination that a lot split may not be approved for a site within a Very High Fire Hazard Severity Zone without complying with applicable fire safety hazard requirements.

(3)       Statutory Amendments

As set forth above, this action was filed on January 16, 2024, based upon a December 2022 application. The applicable statutes have been amended at different times since then. The parties address the statutes as they read now, without any argument that intervening amendments have changed the requirements or analysis in any material way. Except where the statute itself refers to a prior version or as  otherwise noted, the court will apply statutes as they read at the time of this hearing.

Different code sections are sometimes referred to by the parties by the legislative bill that ultimately enacted the section. For example, Government Code section 65913.4 was originally enacted by Senate Bill No. 35 (2017-2018 Reg. Sess.), section 3 (Stats. 2017, ch. 366), and so is sometimes referred to as “SB 35.” The court will generally cite to the underlying code sections and will cite to chaptered enactments only where statutory history is relevant.

(4)       Requirements Under Section 66411.7

“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: [¶] … [¶] (3) The parcel being subdivided meets all the following requirements: [¶] … [¶] (C) The parcel satisfies the requirements specified in subparagraphs (B) to (K), inclusive, of paragraph (6) of subdivision (a) of Section 65913.4, as that section read on September 16, 2021.” (Gov. Code, § 66411.7, subd. (a)(3)(C).)

The above subparagraphs of section 65913.4 were amended effective September 16, 2021, to read in part as follows:

“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 a high or very high fire hazard severity zone as indicated on maps adopted by the Department of Forestry and Fire Protection pursuant to Section 4202 of the Public Resources Code. This subparagraph does not apply to sites excluded from the specified hazard zones by a local agency, pursuant to subdivision (b) of Section 51179, or sites that have adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.” (Former Gov. Code, § 65913.4, subd. (a)(6)(D), as amended by Stats. 2021, ch. 160, § 1.)

Current section 65913.4, subdivision (a)(6)(D) provides:

“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.

“(iii)    Chapter 7A of the California Building Code (Title 24 of the California Code of Regulations).”

The record here shows that the Property is located within a very high fire hazard severity zone within the meaning of section 65913.4, subdivision (a)(6)(D). The Property therefore does not meet the requirements of section 66411.7, subdivision (a)(3)(C) unless the exception set forth in the second sentence of section 65913.4, subdivision (a)(6)(D) applies, that is, the “site[ ] … ha[s] adopted fire hazard mitigation measures pursuant to existing building standards or state fire mitigation measures applicable to the development.”

According to Zimmer, “applicable to the development” in section 65913.4, subdivision (a)(6)(D) “means fire mitigation measures that can be implemented onsite, not, as the County has argued, implemented anywhere on the Lane or even anywhere in the immediate neighborhood.” (Opening Brief, at p. 15.) Applying this meaning, Zimmer reasons that the Property meets the requirements because the County had approved a site-specific sprinkler in connection with the building permit.

According to County, “applicable to the development” refers to generally applicable measures that would apply to the proposed development and not only those measures that can be implemented within the borders of the parcel. (Opposition Brief, at p. 12.)

“We begin by examining the statutory language, giving terms their plain, ordinary meaning. If the language is ambiguous, we may look to extrinsic sources, including legislative history. We select the construction that comports most closely with the intent of the Legislature, with a view of promoting, rather than defeating, the general purpose of the statute, and avoiding an interpretation that would lead to absurd results.” (Fair Education, supra, 72 Cal.App.5th at p. 898.)

The court observes that until January 1, 2025, section 66411.7, subdivision (a)(3)(C) ended by the cross-reference to section 65913.4, subdivision (a)(6). (See Stats. 2024, ch. 7, § 21 [former § 66411.7, subd. (a)(3)(C) effective as of Mar. 4, 2024].) Later in 2024, the Legislature amended section 66411.7, subdivision (a)(3)(C) to add, effective January 1, 2025, that the cross-reference to section 65913.4, subdivision (a)(6), is to that section as it read on September 16, 2021. (Stats. 2024, ch. 286, § 1.) The difference between section 65913.4, subdivision (a)(6)(D) as it read on September 16, 2021, and as it read on January 1, 2025, as relevant here is the words “including but not limited to standards” with the list of subdivisions (i) through (iii). (Compare with Stats. 2024, ch. 160, § 1 [former § 65913.4, subd. (a)(6)(D) as of Sept. 16, 2021].)

The significance of this amendment is not obvious. The Legislative Counsel’s digest for Statutes 2024, chapter 286, which effected this amendment, states:

“Existing law requires a local agency to ministerially approve a parcel map for an urban lot split that meets certain requirements. Existing law authorizes a local agency to impose objective zoning standards, objective subdivision standards, and objective design standards, as defined, except as specified. Existing law authorizes a local agency to deny an urban lot split if specified conditions are met, including that the building official makes a written finding that the proposed housing development project would have a specific, adverse impact upon public health and safety or the physical environment, as provided.

“This bill would specify that objective zoning standards, objective subdivision standards, and objective design standards imposed by a local agency must be related to the design or improvements of a parcel. This bill would remove the authorization for a local agency to deny a proposed housing development if the building official makes a written finding that the proposed housing development project would have a specific, adverse impact upon the physical environment. The bill would require the local agency to consider and approve or deny the proposed housing development application within 60 days from the date the local agency receives the completed application, and would deem the application approved after that time. The bill would require a permitting agency, if it denies an application, to provide a full set of comments to the applicant with a list of items that are defective or deficient and a description of how the application can be remedied by the applicant.” (Legis. Counsel’ Dig., Sen. Bill No. 450, Stats. 2024, ch. 286 (2023-2024 Reg. Sess.) Summary Dig.)

Words of inclusion (i.e., “including, but not limited to”) are generally terms of enlargement rather than limitation. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101.) The omission of such words by amendment would express an intention to cut back on the enlargement occasioned by the list of inclusion. Putting this together with the Legislative Counsel’s comments, it is reasonable to conclude that the Legislature intended to exclude items within the list following the “including but not limited to” language that may be deemed not “related to the design or improvements of a parcel.” Consequently, it is useful to consider perspectives of interpretation of section 65913.4, subdivision (a)(6)(D) as that section existed on September 16, 2021.

Useful to this consideration, both parties cite to a Letter of Technical Assistance from Shannon West, Housing Accountability Unit Chief, of the Department of Housing and Community Development (HCD), Division of Housing Policy Development, to Jose Perez, Director, Community Development Department, City of Jurupa Valley, California, June 24, 2022 (Jurupa Valley LTA). (7 PE 1811-1812.) The Jurupa Valley LTA addresses a proposed project of 80 units that was submitted for under the Streamlined Ministerial Approval Process (SB 35). (7 PE 1811.) The City of Jurupa Valley had determined that this project did not qualify for the Streamline Ministerial Approval Process because it was located in a very high fire hazard severity zone (VHFHSZ). (7 PE 1812.) The HCD disagreed with the City of Jurupa Valley that the location in the VHFHSZ was sufficient to disqualify the project from eligibility because of the exception in subdivision (a)(6)(D):

“There are existing building standards and state fire mitigation measures applicable to this development. In consultation with the California Department of Forestry and Fire Protection (CAL FIRE), HCD has confirmed that this project must conform with standards set forth in the Chapter 7A of the California Building Code (CBC), Chapter 49 of the California Fire Code (CFC), and the Minimum Fire Safe Regulations in the Public Resources Code Section 4290 (14 CCR 1270 et seq.). These codes have all been updated since the passage of SB 35 in 2017 to establish and/or strengthen development standards that govern residential development within Fire Hazard Severity Zones and Wildland-Urban Interface Fire Areas. Both CBC Chapter 7A and CFC Chapter 49 require compliance with the requirements for

defensible space and building in wildfire prone areas of Government Code sections 51175 through 51189.

“Given the foregoing, the Project’s location in a VHFHSZ does not preclude the Project from eligibility for Streamlined Ministerial Approval Processing. Additionally, HCD is aware that a Fire Protection Plan has been prepared for the Project and will be submitted to the Riverside County Fire Department for review and approval to further ensure the Project meets all construction and infrastructure requirements resulting from a tailored fire risk assessment.” (7 PE 1812.)

The Minimum Fire Safe Regulations identified in the Jurupa Valley LTA include regulations regarding ingress and egress. (Cal. Code Regs., tit. 14, §§ 1273.00-

1273.09.) “Roads, and Driveways, whether public or private, unless exempted under 14 CCR § 1270.03(d), shall provide for safe access for emergency Wildfire equipment and civilian evacuation concurrently, and shall provide unobstructed traffic circulation during a Wildfire emergency consistent with 14 CCR §§ 1273.00 through 1273.09.” (Cal. Code Regs., tit. 14, § 1273.00.)

The position taken in the Jurupa Valley LTA is consistent with the County’s interpretation of these statutes that to qualify for the exception set forth in the second sentence of section 65913.4, subdivision (a)(6)(D), it is necessary for the site to adopt fire hazard mitigation measures generally applicable to the Property.

This interpretation is also consistent with the purpose of the statutory exceptions. While there is no dispute that the overarching goal and purpose of section 66411.7 is to promote the construction of residential housing by eliminating procedural impediments in the approval process, the presumption of the streamlined approval process is that more involved consideration is not necessary to the process. A corollary to this streamlining is to exempt from the streamlined process those types of projects that by their nature need more involved consideration before approval. Section 66411.7, subdivision (a)(3)(C) makes a requirement for the streamlined process that the parcel satisfies all of the requirements set forth in subparagraphs (B) to (K) of paragraph (6) of subdivision (a) of section 65913.4.

While the above discussion has been focused on subparagraph (D), it is useful also to consider the other subparagraphs:

“The development is not located on a site that is any of the following: [¶] … [¶]

“(B)     Either prime farmland or farmland of statewide importance, as defined pursuant to the United States Department of Agriculture land inventory and monitoring criteria, as modified for California, and designated on the maps prepared by the Farmland Mapping and Monitoring Program of the Department of Conservation, or land zoned or designated for agricultural protection or preservation by a local ballot measure that was approved by the voters of that jurisdiction.

“(C)     Wetlands, as defined in the United States Fish and Wildlife Service Manual, Part 660 FW 2 (June 21, 1993). [¶] … [¶]

“(E)     A hazardous waste site that is listed pursuant to Section 65962.5 or a hazardous waste site designated by the Department of Toxic Substances Control pursuant to Section 25356 of the Health and Safety Code, unless either of the following apply:

“(i)       The site is an underground storage tank site that received a uniform closure letter issued pursuant to subdivision (g) of Section 25296.10 of the Health and Safety Code based on closure criteria established by the State Water Resources Control Board for residential use or residential mixed uses. This section does not alter or change the conditions to remove a site from the list of hazardous waste sites listed pursuant to Section 65962.5.

“(ii)      The State Department of Public Health, State Water Resources Control Board, Department of Toxic Substances Control, or a local agency making a determination pursuant to subdivision (c) of Section 25296.10 of the Health and Safety Code, has otherwise determined that the site is suitable for residential use or residential mixed uses.

“(F)     Within a delineated earthquake fault zone as determined by the State Geologist in any official maps published by the State Geologist, unless the development complies with applicable seismic protection building code standards adopted by the California Building Standards Commission under the California Building Standards Law (Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code), and by any local building department under Chapter 12.2 (commencing with Section 8875) of Division 1 of Title 2.

“(G)     Within a special flood hazard area subject to inundation by the 1 percent annual chance flood (100-year flood) as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site. A development may be located on a site described in this subparagraph if either of the following are met:

“(i)       The site has been subject to a Letter of Map Revision prepared by the Federal Emergency Management Agency and issued to the local jurisdiction.

“(ii)      The site meets Federal Emergency Management Agency requirements necessary to meet minimum flood plain management criteria of the National Flood Insurance Program pursuant to Part 59 (commencing with Section 59.1) and Part 60 (commencing with Section 60.1) of Subchapter B of Chapter I of Title 44 of the Code of Federal Regulations.

“(H)     Within a regulatory floodway as determined by the Federal Emergency Management Agency in any official maps published by the Federal Emergency Management Agency, unless the development has received a no-rise certification in accordance with Section 60.3(d)(3) of Title 44 of the Code of Federal Regulations. If a development proponent is able to satisfy all applicable federal qualifying criteria in order to provide that the site satisfies this subparagraph and is otherwise eligible for streamlined approval under this section, a local government shall not deny the application on the basis that the development proponent did not comply with any additional permit requirement, standard, or action adopted by that local government that is applicable to that site.

“(I)      Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code), habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.

“(J)      Habitat for protected species identified as candidate, sensitive, or species of special status by state or federal agencies, fully protected species, or species protected by the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code).

“(K)     Lands under conservation easement.” (Gov. Code, § 65913.4, subd. (a)(6)(B), (C), (E)-(K).)

Subparagraphs (B), (C), and (E) through (K) all, like subparagraph (D), exempt from streamlined approval situations where the site is either in need of special protection from development (e.g., farmland, wetlands, conservation lands, and habitat for protected species) or in need of special attention because of safety concerns in development (e.g., hazardous waste sites, in an earthquake fault zone, in a flood zone). By exempting these types of sites, the statutory scheme acknowledges the need for deeper consideration than in streamlined approval. The statutory scheme contains exceptions to these exemptions where regulations or regulatory action makes streamlined approval reasonable and feasible. In this context, the VHFHSZ exception fits right in. Sites within a VHFHSZ are exempt from streamlined approval unless regulatory compliance with fire hazard mitigation measures will serve the streamlining purpose.

Consequently, Zimmer has not shown that the County has abused its discretion by applying generally applicable fire safety regulations in determining whether Zimmer’s application is subject to streamlined approval as “applicable to the development.”

To address this issue in the specific context of the Property development, it is necessary to consider Zimmer’s interrelated arguments that the County improperly requires offsite improvements and whether Zimmer’s alternative is sufficient as having the “Same Practical Effect.”

(5)       Offsite Improvements

Zimmer argues that the County has improperly required offsite improvements to meet the exception of section 65913.4, subdivision (a)(6)(D).

The general rule for subdivisions of fewer than five lots is: “Notwithstanding Section 66428, whenever a local ordinance requires improvements for a division of land which is not a subdivision of five or more lots, the regulations shall be limited to the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements for the parcels being created.” (Gov. Code, § 66411.1, subd. (a).)

However, an exception to this rule for streamlined approval is part of section 66411.7:

“An application for a parcel map for an urban lot split shall be approved in accordance with the following requirements: [¶] … [¶] (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)(3).)

In support of her argument, Zimmer points to other letters of technical assistance issued by the HCD. In the Letter of Technical Assistance from Shannon West, Housing Accountability Unit Chief, of the HCD, Division of Housing Policy Development, to Anwer Ibriheem, Assistant Engineer, Engineering Division, Development Services Department, City of San Diego, April 10, 2025 (San Diego LTA) the issue was whether under the City of San Diego could require improvements to an existing driveway apron and sidewalk located in the public right-of-way as a condition to approval of the urban lot split. (20 PE 5542.) The San Diego LTA determined the City of San Diego could not:

“HCD understands the applicant has submitted a parcel map application for an SB 9 urban lot split to subdivide an approximately 5,100 square-foot lot into two parcels. One of the proposed parcels is designed to access the public street via an existing private driveway, an existing driveway apron, and sidewalk between the private driveway and apron. The driveway is located on private property while the driveway apron and sidewalk are located in the public right-of-way. HCD understands that the driveway apron and sidewalk do not meet current City design standards. Specifically, they do not meet Standard No. SDG-159, which, among other purposes, is intended to implement ADA requirements.” (20 PE 5542.)

“The required reconstruction of an existing driveway apron and sidewalk in the public right-of-way, to meet current City standards, constitutes a requirement for ‘the construction of offsite improvements.’ Furthermore, approval of the parcel map is subject to compliance with this reconstruction requirement and therefore constitutes a ‘condition of issuing a parcel map for an urban lot split’ that is prohibited in Government Code section 66411.7, subdivision (b)(3).” (20 PE 5543.)

“HCD wholeheartedly agrees with the importance of improving ADA access. HCD also understands, through discussion with City staff, that the City does have the legal authority to require the specified driveway apron and sidewalk improvement during future construction permit processes for the subject site. Therefore, while HCD has determined that these offsite improvements cannot be required during an urban lot split application, HCD understands from the City that there will be other opportunities for the improvements to be required as a part of future land development approvals.” (20 PE 5544.)

In the Letter of Technical Assistance from Shannon West, Housing Accountability Unit Chief, of the HCD, Division of Housing Policy Development, to Justin Murphy, City Manager, City of Menlo Park, July 11, 2024 (Menlo Park LTA), the Menlo Park LTA concludes that recreation in-lieu fees charged on subdivision applications may not be imposed as a condition of approval for urban lot splits under SB 9. (19 PE 5125-5127.) The Menlo Park LTA reasoned that these in-lieu fees were imposed for park and recreational purposes that are intended to be used, and are used by the City of Menlo Park, for offsite improvements. (19 PE 5125.)

In the Letter of Technical Assistance from Shannon West, Housing Accountability Unit Chief, of the HCD, Division of Housing Policy Development, to David Contreras, Director, Community Development Department, City of Laguna Beach, September 19, 2024 (Laguna Beach LTA), the Laguna Beach LTA concludes that a municipal ordinance that categorically excludes SB 9 lot splits from a VHFHSZ must be reviewed to ensure compliance with updated statutory language in Government Code section 65913.4. (18 PE 4979-4980.)

In the Letter of Technical Assistance from Shannon West, Housing Accountability Unit Chief, of the HCD, Division of Housing Policy Development, to Alison Spindler-Ruiz, Planning Bureau Manager, City of Long Beach, August 9, 2024 (Long Beach LTA), the Long Beach LTA addressed municipal revisions to standards to facilitate SB-9 developments. (18 PE 4983-4987.) The Long Beach LTA addressed these issues in the following context:

“HCD received a request for technical assistance from a City of Long Beach resident

(requester). HCD understands the requester is interested in pursuing an urban lot split within the R-1-N (Single-family Residential, standard lot) zoning district and alerted HCD that several objective standards contained within the City’s subdivision ordinance preclude approval of a parcel map under an SB 9 urban lot split (henceforth referred to as an ‘urban lot split’). Specifically, the requester’s lot does not abut a rear street or alley and was thus precluded from pursuing an urban lot split pursuant due to standards contained within the subdivision ordinance.” (18 PE 4983.)

The Long Beach LTA explained:

“SB 9 sets forth the requirement that a local agency ministerially approve an urban lot split for two new parcels if the application meets several requirements. [Fn.] To facilitate the lot split, SB 9 establishes guardrails for these objective standards. Specifically, SB 9 provides: [¶] ‘A local agency shall not impose objective zoning standards, objective subdivision standards, and objective design review standards that would have the effect of physically precluding the construction of two units on either of the resulting parcels or that would result in a unit size of less than 800 square feet.’ (Gov. Code, § 66411.7, subd. (c)(2).) (Emphasis added.) [¶] It follows that, to have two units on ‘either of the resulting parcels,’ the resulting parcels

must be able to occur. [Fn.] In the case of the requester’s lot, the urban lot split is physically precluded by [Long Beach Municipal Code] sections 20.18.100 (G), 20.10.100 (I), and 20.18.100 (J).” (18 PE 4985.)

None of these Letters of Technical Assistance are helpful here. The San Diego LTA is the closest factually to the situation here, but it merely reiterates that offsite improvements may not be required as a condition to the lot split. The San Diego LTA does not address the statutory requirement for streamlined approval in section 66411.7, subdivision (a)(3)(C), or provide a standard for determining what constitutes an offsite improvement. The Menlo Park LTA concludes that in-lieu fees that are intended for offsite improvements are improper, but no in-lieu fees are at issue here. The Laguna Beach LTA states that the categorical exclusion of lot splits in a VHFHSZ are improper, but the letter implies that the converse is also incorrect, that is, that not all lot splits in a VHFHSZ may be proper. The Long Beach LTA states generally that a local agency may not impose objective subdivision standards that have the effect of physically precluding construction on either of the resulting parcels, but arrives at this conclusion where the parcel is not subject to an exemption by being in a VHFHSZ.

As in the previous discussion, section 66411.7, subdivision (a) allows for ministerial approval of a lot split “only if” the parcel map meets, among other things, the requirements of subdivision (a)(3)(C). Subdivision (a)(3)(C) requires satisfaction of the requirements of, among other things, section 65913.4, subdivision (a)(6)(D). A lot does not satisfy section 65913.4, subdivision (a)(6)(D) if it is located within a VHFHSZ unless the site has adopted fire hazard mitigation measures pursuant to existing standards. To the extent that offsite improvements may be considered necessary to implement such standards (which is further discussed below), the completion of such improvements is not a condition of issuance of the parcel map imposed by the local authority, but completion of such improvements is a statutory condition—the “only if” condition—to qualify for ministerial approval under section 66411.7, subdivision (a).

Additionally and alternatively, Zimmer does not demonstrate that offsite improvements were imposed as a requirement. The County identified that a compliant hammerhead turnaround would meet the requirements for fire mitigation measures. (Tan decl., ¶ 9 & exhibit 1.) Although the County rejected as noncompliant Zimmer’s proposal for a hammerhead turnaround (Tan decl., ¶ 10 & exhibit 2), Zimmer does not point to anything in the record to demonstrate that a hammerhead turnaround could not be constructed onsite that would be sufficient to meet fire mitigation requirements.

Similarly, there is no discussion by Zimmer as to the nature of the legal rights to the easement. County alternatively proposed improvements to Las Encinas Road to the full extent of the easement. (Tan decl., ¶ 9 & exhibit 1; see also 2 PE 489 [easement map].) Although Zimmer does not have a fee interest in the land underlying the easement, the evidence implies that Zimmer has an express right-of-way easement. (See 2 PE 489, 491.) In general, an “express right-of-way easement presumptively contemplate[s] ‘normal future development,’ [and] such an easement will generally not be restricted to its historic use.” (Zissler v. Saville (2018) 29 Cal.App.5th 630, 641.) Zimmer has not shown that she has no legal right to improve the easement to satisfy the fire mitigation requirements. Moreover, it is an open question, not addressed by the parties, as to whether improvements on an express right-of-way easement appurtenant to the Property would constitute “offsite” improvements prohibited by section 66411.7, subdivision (b)(3), or “onsite” as within the bundle of rights owned by Zimmer with the Property. In the San Diego LTA, supra, the HCD opined, without legal analysis, that ADA improvements in a public right-of-way, which would have required an encroachment permit to undertake, were prohibited offsite improvements. Insofar as the right-of-way easement would presumably remain appurtenant to both parcels in the event of a lot split, an argument could be made that improvements to the easement that are within the legal rights of Zimmer to perform as “onsite.”

In any event, it is sufficient for these purposes to conclude that Zimmer does not show that the County abused its discretion in determining that the Property does not meet the legal requirements for a ministerial lot split under section 66411.7, subdivision (a), where such requirements could be met by the completion of improvements to the Property.

(6)       Adverse Impact

Zimmer notes in her opening brief that the County has authority to deny the application by finding a site-specific public safety issue as provided in Government Code section 66411.7, subdivision (d). (Opening Brief, at p. 18.) Zimmer then asserts that the County could not, however, make the required factual findings.

“Notwithstanding subdivision (a), a local agency may deny an urban lot split if the building official makes a written finding, based upon a preponderance of the evidence, that the proposed housing development project would have a specific, adverse impact, as defined and determined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact.” (Gov. Code, § 66411.7, subd. (d).)

In response, the County points out that it does not rely upon subdivision (d) because the requirements of subdivision (a) have not been met. (Respondent’s Brief, at p. 17.)

Because the court finds that the requirements of subdivision (a) have not been shown to have been met, and the County does not rely upon subdivision (d) for any purpose, no discussion of subdivision (d) is necessary.

(7)       “Same Practical Effect”

Prescribed fire hazard mitigation measures are subject to exceptions:

“Upon request by the applicant, an Exception to standards within this Subchapter may be allowed by the Inspection entity in accordance with 14 CCR § 1270.06 (Inspections) where the Exceptions provide the Same Practical Effect as these regulations towards providing Defensible Space. Exceptions granted by the Local Jurisdiction listed in 14 CCR § 1270.06, shall be made on a case-by-case basis only.” (Cal. Code Regs., tit. 14, § 1270.07, subd. (a).)

“The following definitions are applicable to Subchapter 2. [¶] … [¶]

“(f) Defensible Space: The area within the perimeter of a parcel, Development, neighborhood or community where basic wildland fire protection practices and measures are implemented, providing the key point of defense from an approaching Wildfire or defense against encroaching Wildfires or escaping Structure fires. The perimeter as used in this regulation is the area encompassing the parcel or parcels proposed for construction and/or Development, excluding the physical Structure itself. The area is characterized by the establishment and maintenance of emergency vehicle access, emergency water reserves, Road names and Building identification, and fuel modification measures. [¶] … [¶]
 

“(aa) Same Practical Effect: As used in this subchapter, means an Exception or alternative with the capability of applying accepted wildland fire suppression strategies and tactics, and provisions for fire fighter safety, including:

“(1) access for emergency wildland fire equipment,

“(2) safe civilian evacuation,

“(3) signing that avoids delays in emergency equipment response,

“(4) available and accessible water to effectively attack Wildfire or defend a Structure from Wildfire, and

“(5) fuel modification sufficient for civilian and fire fighter safety.” (Cal. Code Regs., tit. 14, § 1270.01, subds. (f), (aa).)

“Requests for an Exception shall be made in writing to the Local Jurisdiction listed in 14 CCR § 1270.06 by the applicant or the applicant’s authorized representative.

At a minimum, the request shall state the specific section(s) for which an Exception is requested; material facts supporting the contention of the applicant; the details of the Exception proposed; and a map showing the proposed location and siting of the Exception. Local Jurisdictions listed in § 1270.06 (Inspections) may establish additional procedures or requirements for Exception requests.” (Cal. Code Regs., tit. 14, § 1270.07, subd. (b).)

Zimmer argues both that the County has abused its discretion in determining what may constitute a Same Practical Effect exception and what may not, and that the County has failed to provide Zimmer with her procedural rights in addressing this determination. This latter issue raised by Zimmer has further implications as to whether Zimmer has been deprived of a right to an administrative appeal, the absence of which in turn raises the question of the prematurity of determining this petition for writ at to those issues on a substantive basis.

“Where an Exception is not granted by the inspection entity, the applicant may appeal such denial to the Local Jurisdiction. The Local Jurisdiction may establish or utilize an appeal process consistent with existing local building or planning department appeal processes.” (Cal. Code Regs., tit. 14, § 1270.07, subd. (c).)

Under section 1270.07, subdivision (c), the applicant appears to be entitled to an appeal of the denial of a request. No such appellate process appears to have taken place. The parties do not adequately discuss this procedural issue. The court therefore requests further briefing on the following issues:

1.         To what extent, if any, has Zimmer made a written request for a Same Practical Effect exception;

2.         With respect to any such request by Zimmer and with respect to the County determination set forth in the letter, dated June 14, 2023, as to improvements as meeting Same Practical Effect for access requirements (10 PE 2627-2628; Tan decl., exhibit 1), what administrative appellate process, if any, is available;

3.         To the extent that a request and appellate process discussed above is available to Zimmer, has Zimmer complied with such process or is Zimmer excused from complying with such process;

4.         What is the legal effect, if any, of Zimmer or the County failing to comply with an available process (e.g., is there a failure to exhaust administrative remedies) or of the County failing to provide an administrative appellate process (e.g., may the court require the County to hold an administrative appeal).

The court will require further briefing on these issues before resolving the remaining issues. In addressing these issues, the parties shall identify all applicable authority and, to the extent the response involves the communications or conduct of the parties, the parties shall provide specific citations to the record now before the court. The parties may not file any further evidence; argument in the supplemental response shall be limited to responding to the above issues.