Preview
1 Law Office of Andréa Marcus, APC
Andréa Marcus (SBN 118098)
2 133 E. De La Guerra St. #143
Santa Barbara California 93101
3 Telephone: (888) 215-9021
4 Fax: (888) 215-9021
Email: andrea@andreamarcuslaw.com
5
Richard C. Solomon (SBN 41107)
6 2640 Las Encinas Lane
Santa Barbara, CA, 93105
7 Telephone: (805) 452-5839
8 Fax: (888) 215-9021
Email: rcsolomon42@gmail.com
9
Attorneys for Plaintiff/Petitioner
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SANTA BARBARA
12
JANA ZIMMER, INDIVIDUALLY AND AS ) Case No.: 24CV00199
13 TRUSTEE OF THE SOLOMON-ZIMMER )
LIVING TRUST, ) PLAINTIFF’S REQUEST FOR
14 ) JUDICIAL NOTICE; POINTS AND
Plaintiff/Petitioner, ) AUTHORITIES; PLAINTIFF’S
15 v. ) OBJECTION TO DEFENDANTS’
16 ) REQUEST FOR JUDICIAL NOTICE
COUNTY OF SANTA BARBARA, BOARD )
17 OF SUPERVISORS OF THE COUNTY OF ) Petition Filed: January 16, 2024
SANTA BARBARA, LISA PLOWMAN, ) Hearing: April 29, 2024 10:00 AM
18 DIRECTOR OF PLANNING AND )
DEVELOPMENT, ROB HAZARD, FIRE ) Judge: Hon. Colleen Sterne
19 MARSHAL, TRAVIS SEAWARDS, ) Dept: 5
DEPUTY DIRECTOR OF PLANNING AND )
20 DEVELOPMENT, DAS WILLIAMS, FIRST )
21 DISTRICT SUPERVISOR, DOES 1-25, in )
their official and individual capacities, )
22 )
Defendants/Respondents. )
23 )
24
25 TO THE COURT, AND TO ALL PARTIES OF RECORD AND THEIR ATTORNEYS
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
1 In support of their Opposition to Demurrer, and their Opposition to Defendants’ Motion to
2 Strike, Plaintiff, Jana Zimmer as Trustee of the Solomon-Zimmer Living Trust, through her
3 attorneys of record, requests that the Court take judicial notice of the records listed below pursuant
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to California Evidence Code Section 451, 452(b), (h) and 453. All exhibits are true and correct
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copies of the document referenced. Each and all of them are relevant to establish Plaintiff’s claims.
6
7 1. SB 35 An act to amend Sections 65400 and 65582.1 of, and to add and repeal Section
65913.4 of, the Government Code, relating to housing. SB 35 added Section
8 65913.4.6(D), and was applied to ADUs through Gov. Code Section 65582.1(g)
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2. HCD Guidelines on SB 35, Streamlined Processing 9.29.2017
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11 3. SB 8 An act to amend Sections 65589.5, 65905.5, 65913.10, 65940, 65941.1, 65943,
12 65950, 66300, and 66301 of the Government Code, and to amend Section 2 of Chapter
654 of the Statutes of 2019, relating to housing.
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14 4. SB 9 An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to
the Government Code, relating to land use.
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16 5. HCD SB 9 Fact Sheet March, 2021
17 6. SB 330 An act to amend Section 65589.5 of, to amend, repeal, and add Sections 65940,
65943, and 65950 of, to add and repeal Sections 65905.5, 65913.10, and 65941.1 of, and
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to add and repeal Chapter 12 (commencing with Section 66300) of Division 1 of Title 7
19 of, the Government Code, relating to housing. [ Approved
by Governor October 09, 2019. Filed with Secretary of State October 9, 2019. ]
20
21 7. California Legislative Information – Bill History SB 8 and SB 9 amending SB 330
signed together 9.16.2021
22
8. SB 423 An act to amend Section 65913.4 of the Government Code, relating to land
23 use. Approved by Governor October 11, 2023. Filed with Secretary of
24 State October 11, 2023. ]
25 9. State Responsibility Area (SRA) FIRE SAFE REGULATIONS, 2020 amendments to 14
CCR, Division 1.5, Chapter 7 Fire Protection, Subchapter 2, Articles 1-5.
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27 10. AB 1033 Ting Accessory dwelling units. local ordinances: separate sale or conveyance.
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
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11. Minute Order County of Santa Barbara Board of Supervisors, Resolution No. 23-271,
2 adoption of Housing Element 12.5.2023, with public comment letter Zimmer 12.3.2023.
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12. Santa Barbara County Standard format and content: Determination of Application
4 Completeness.
5 13. Minute Order and Resolution No. 23-18 of the Board of Supervisors of Santa Barbara
6 County re: International Holocaust Remembrance Day 1.23.2023, with speaker list
7 14. Policy Fire MC-3, Mission Canyon Specific Plan, pp. 32-51
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15. E-mail Attorney Solomon to County Counsel 4-1-2024 re: Plaintiff’s Index of proposed
9 Exhibits for hearing
10 16. E-mail Response of Attorney Solomon to County Counsel re: Meet and Confer on
11 County proposed Demurrer 3.11.2024
12 17. E-mail cover, Fire Marshal demand of 6.21.2023 for “Option” demanded prior to
recordation
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14 18. County of Santa Barbara announcement re: delays in building permit processing
15 19. E mail chain Plowman, Seawards, Dargiel and Zimmer 4.13-4.14.2023 re: Status
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20. AICP Code of Ethics
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21. AB 473 Public Records Act recodification
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19 22. Assembly Judiciary on AB 473 recodification
20 23. Santa Barbara County Records Notice dated 7.31.23 of “Extension” under Public
Records Act to 8.14.2023
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22 24. E mail Fire Marshal to Zimmer 6.21.2023 demanding improvements “prior to
recordation”
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25. E-Mail from Fire Marshal to Zimmer 5.14.2023 admission that Local Responsibility Area
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Maps not sent to State in 2013
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26. “Anti-Semitism Uncovered: A Guide to Old Myths in a New Era” Anti-Defamation
26 League (2023)
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
1 27. E-mail Zimmer to Board of Supervisors Comment on Impact of Safety Element 7.6.2023
on her pending lot split application
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3 28. County of Santa Barbara Amended Resolution adopted 12.5.2022
4 29. HCD Letter to County of Santa Barbara January 30, 2024
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6 30. FPPC Advice Letter 12.11.2013 re: use of campaign funds to defend litigation
7 31. FPPC Letter to SB County 3.21.03
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The court may take judicial notice of each and all of Exhibits 1-31 under Evid. Code
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10 452(b), 452(h) because they are:
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1. Legislative enactments of the State of California Exhibit 1,3,4,6,7,8,10,21,22
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2. Legislative enactments of the County of Santa Barbara Exhibit 11,13,14
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14 3. Guidelines or regulations of a State Agency Exhibit 2,5,9,
15 4. Matters which are not subject to dispute under Evid. Code Section 452(h), as they are
16 documents generated by the County or within the County’s possession.
17 12,15,16,17,18,19,20,23,24,25,26,27, 28,29
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5. 26 Anti-Defamation League Definitions of antisemitism not reasonably subject to
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dispute, e.g., defamatory tropes about Jews’ greed, preoccupation with saving money,
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influence.
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22 6. FPPC Advice Letters 30,31
23 Argument
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“It is well recognized that the purpose of judicial notice is to expedite the production and
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introduction of otherwise admissible evidence.”). Mozzetti v. City of Brisbane (1977) 67
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27 Cal.App.3d 565, 578. "Judicial notice of matters upon demurrer will be dispositive only in those
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
1 instances where there is not or cannot be a factual dispute concerning that which is sought to be
2 judicially noticed." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 (Cruz);
3 accord, Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325.)
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Plaintiff objects to Defendant’s Request for Judicial Notice as irrelevant, and
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6 inadmissible, and highly prejudicial in context of Defendants’ Demurrer.
7 First, their Exhibits 1 and 2 do not accurately reflect the actions taken by the Board of
8 Supervisors, or the reasons for them. (See, Plaintiff’s RJN 28) The pages submitted appear to be
9 a mix of a excerpts of a few pages from the Building Code, a few pages of a pre-existing version
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of the local Fire Code, Chapter 15 of the County Code. (even the typeface is different). The
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references in that attachment, to Section 503.2.1 through 503.2 reflect standards with which
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Plaintiff has already complied, or which cannot be applied to her lot split. The specific hose
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14 length requirement mentioned is the same requirement which the Fire Marshal expressly waived
15 when Plaintiff agreed to install sprinklers in her ADU. (Complaint, Para. 23, and Plaintiff’s RJN
16 28.)
17 The Resolution adopted by the Board of Supervisors on December 5, 2022 reflects
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additions to the County Fire Code deemed necessary due to local conditions and appear to justify
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the need to add a sprinkler requirement in all buildings within the urban boundary. They do not
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appear to reflect changes to road width standards. Plaintiff already agreed to sprinkler the new
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22 dwelling in March of 2022. (Para. 23)
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24 “County Fire approved that dwelling, subject only to a condition that Plaintiff install
sprinklers in the new unit, which the Fire Marshal found had the “same practical effect”
25 as the 150 foot equipment access requirement set forth in their Development Standards (
5.12 Building Access. “The furthest projection of the exterior wall of a building shall be
26 accessible from within one hundred fifty feet (150’) of an approved public or private road
or private driveway for where the fire apparatus shall position as measured by an
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
1 unobstructed route around the exterior of the building.) This development standard
constitutes an “objective standard” within the meaning of Gov. Code 65913.4(a)(6)(D).)”
2
The specific references to Title 14 in the Building Code explicitly provide for substituting
3
4 sprinklering for the 150 foot hose length requirement. Plaintiff did agree to sprinkler her ADU, as
5 a “same practical effect” measure for fire equipment access, even though it was not then required
6 under the Fire Code. (Complaint, Para. 6. )
7
Second , their submittal reflects the 20 foot road width requirement which they know
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they cannot lawfully apply under policy Mission Canyon Plan FIRE-MC3, to pre-existing roads,
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10 and which they have waived, presumably on advice of Counsel, in favor of a 15’ foot road width,
11 with which Plaintiff has complied. (Complaint Para. 10, 49, 54-55, 111, 112). Plaintiff alleges
12 that she in fact achieved the 15’ road width prior to filing the Complaint. (Para 9)
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Defendants’ Request for Judicial Notice is not relevant, and is entirely misleading.
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16 Respectfully Submitted,
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__ __ DATED: April 16, 2024
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20 Richard C. Solomon, Esq.
21 Andréa Marcus
22 Attorneys for Plaintiff
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES;
PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
EXHIBIT 1
STATE OF CALIFORNIA
AUTHENTICATED
ELECTRONIC LEGAL MATERIAL
Senate Bill No. 35
CHAPTER 366
An act to amend Sections 65400 and 65582.1 of, and to add and repeal
Section 65913.4 of, the Government Code, relating to housing.
[Approved by Governor September 29, 2017. Filed with
Secretary of State September 29, 2017.]
legislative counsel’s digest
SB 35, Wiener. Planning and zoning: affordable housing: streamlined
approval process.
(1) The Planning and Zoning Law requires a city or county to adopt a
general plan for land use development within its boundaries that includes,
among other things, a housing element. The Planning and Zoning Law
requires a planning agency, after a legislative body has adopted all or part
of a general plan, to provide an annual report to the legislative body, the
Office of Planning and Research, and the Department of Housing and
Community Development on the status of the general plan and progress in
meeting the community’s share of regional housing needs. Existing law
requires the housing element portion of the annual report to be prepared
through the use of forms and definitions adopted by the department pursuant
to the Administrative Procedure Act.
This bill would require the housing element portion of the annual report
to be prepared through the use of standards, forms, and definitions adopted
by the department. The bill would eliminate the requirement that the forms
and definitions be adopted by the department pursuant to the Administrative
Procedure Act and would instead authorize the department to review, adopt,
amend, and repeal the standards, forms, or definitions, as provided. The bill
would also require the planning agency to include in its annual report
specified information regarding units of net new housing, including rental
housing and for-sale housing that have been issued a completed entitlement,
building permit, or certificate of occupancy. The bill would also require the
Department of Housing and Community Development to post an annual
report submitted pursuant to the requirement described above on its Internet
Web site, as provided.
(2) Existing law requires an attached housing development to be a
permitted use, not subject to a conditional use permit, on any parcel zoned
for multifamily housing if at least certain percentages of the units are
available at affordable housing costs to very low income, lower income,
and moderate-income households for at least 30 years and if the project
meets specified conditions relating to location and being subject to a
discretionary decision other than a conditional use permit. Existing law
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Ch. 366 —2—
provides for various incentives intended to facilitate and expedite the
construction of affordable housing.
This bill would authorize a development proponent to submit an
application for a multifamily housing development, which satisfies specified
planning objective standards, that is subject to a streamlined, ministerial
approval process, as provided, and not subject to a conditional use permit.
The bill would require a local government to notify the development
proponent in writing if the local government determines that the development
conflicts with any of those objective standards by a specified time; otherwise,
the development is deemed to comply with those standards. The bill would
limit the authority of a local government to impose parking standards or
requirements on a streamlined development approved pursuant to these
provisions, as provided. The bill would provide that if a local government
approves a project pursuant to that process, that approval will not expire if
that project includes investment in housing affordability, and would
otherwise provide that the approval of a project expire automatically after
3 years, unless that project qualifies for a one-time, one-year extension of
that approval. The bill would provide that approval pursuant to its provisions
would remain valid for three years and remain valid thereafter so long as
vertical construction of the development has begun and is in progress, and
would authorize a discretionary one-year extension, as provided. The bill
would prohibit a local government from adopting any requirement that
applies to a project solely or partially on the basis that the project receives
ministerial or streamlined approval pursuant to these provisions. The bill
would repeal these provisions as of January 1, 2026.
(3) The bill would make findings that ensuring access to affordable
housing is a matter of statewide concern and declare that its provisions
would apply to all cities and counties, including a charter city, a charter
county, or a charter city and county.
(4) By imposing new duties upon local agencies with respect to the
streamlined approval process and reporting requirement described above,
this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies
and school districts for certain costs mandated by the state. Statutory
provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for
a specified reason.
(5) This bill would incorporate additional changes to Section 65400 of
the Government Code proposed by AB 879 to be operative only if this bill
and AB 879 are enacted and this bill is enacted last.
This bill would incorporate additional changes to Section 65582.1 of the
Government Code proposed by AB 73 to be operative only if this bill and
AB 73 are enacted and this bill is enacted last.
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The people of the State of California do enact as follows:
SECTION 1. Section 65400 of the Government Code is amended to
read:
65400. (a) After the legislative body has adopted all or part of a general
plan, the planning agency shall do both of the following:
(1) Investigate and make recommendations to the legislative body
regarding reasonable and practical means for implementing the general plan
or element of the general plan, so that it will serve as an effective guide for
orderly growth and development, preservation and conservation of
open-space land and natural resources, and the efficient expenditure of
public funds relating to the subjects addressed in the general plan.
(2) Provide by April 1 of each year an annual report to the legislative
body, the Office of Planning and Research, and the Department of Housing
and Community Development that includes all of the following:
(A) The status of the plan and progress in its implementation.
(B) The progress in meeting its share of regional housing needs
determined pursuant to Section 65584 and local efforts to remove
governmental constraints to the maintenance, improvement, and development
of housing pursuant to paragraph (3) of subdivision (c) of Section 65583.
The housing element portion of the annual report, as required by this
paragraph, shall be prepared through the use of standards, forms, and
definitions adopted by the Department of Housing and Community
Development. The department may review, adopt, amend, and repeal the
standards, forms, or definitions, to implement this article. Any standards,
forms, or definitions adopted to implement this article shall not be subject
to Chapter 3.5 (commencing with Section 11340) or Part 1 of Division 3 of
Title 2. Before and after adoption of the forms, the housing element portion
of the annual report shall include a section that describes the actions taken
by the local government towards completion of the programs and status of
the local government’s compliance with the deadlines in its housing element.
That report shall be considered at an annual public meeting before the
legislative body where members of the public shall be allowed to provide
oral testimony and written comments.
The report may include the number of units that have been substantially
rehabilitated, converted from nonaffordable to affordable by acquisition,
and preserved consistent with the standards set forth in paragraph (2) of
subdivision (c) of Section 65583.1. The report shall document how the units
meet the standards set forth in that subdivision.
(C) The degree to which its approved general plan complies with the
guidelines developed and adopted pursuant to Section 65040.2 and the date
of the last revision to the general plan.
(D) The number of net new units of housing, including both rental housing
and for-sale housing, that have been issued a completed entitlement, a
building permit, or a certificate of occupancy, thus far in the housing element
cycle, and the income category, by area median income category, that each
unit of housing, including both rental housing and housing designated for
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Ch. 366 —4—
home ownership, satisfies. That production report shall, for each income
category described in this subparagraph, distinguish between the number
of rental housing units and the number of for-sale housing units that satisfy
each income category. The production report shall include, for each
entitlement, building permit, or certificate of occupancy, a unique site
identifier, which must include an assessor’s parcel number, but may also
include street address or other identifiers.
(E) The number of applications submitted pursuant to subdivision (a) of
Section 65913.4, the location and the total number of developments approved
pursuant to subdivision (b) of Section 65913.4, the total number of building
permits issued pursuant to subdivision (b) of Section 65913.4, the total
number of units including both rental housing and for-sale housing by area
median income category constructed using the process provided for in
subdivision (b) of Section 65913.4.
(F) The Department of Housing and Community Development shall post
a report submitted pursuant to this paragraph on its Internet Web site within
a reasonable time of receiving the report.
(b) If a court finds, upon a motion to that effect, that a city, county, or
city and county failed to submit, within 60 days of the deadline established
in this section, the housing element portion of the report required pursuant
to subparagraph (B) of paragraph (2) of subdivision (a) that substantially
complies with the requirements of this section, the court shall issue an order
or judgment compelling compliance with this section within 60 days. If the
city, county, or city and county fails to comply with the court’s order within
60 days, the plaintiff or petitioner may move for sanctions, and the court
may, upon that motion, grant appropriate sanctions. The court shall retain
jurisdiction to ensure that its order or judgment is carried out. If the court
determines that its order or judgment is not carried out within 60 days, the
court may issue further orders as provided by law to ensure that the purposes
and policies of this section are fulfilled. This subdivision applies to
proceedings initiated on or after the first day of October following the
adoption of forms and definitions by the Department of Housing and
Community Development pursuant to paragraph (2) of subdivision (a), but
no sooner than six months following that adoption.
SEC. 1.5. Section 65400 of the Government Code is amended to read:
65400. (a) After the legislative body has adopted all or part of a general
plan, the planning agency shall do both of the following:
(1) Investigate and make recommendations to the legislative body
regarding reasonable and practical means for implementing the general plan
or element of the general plan, so that it will serve as an effective guide for
orderly growth and development, preservation and conservation of
open-space land and natural resources, and the efficient expenditure of
public funds relating to the subjects addressed in the general plan.
(2) Provide by April 1 of each year an annual report to the legislative
body, the Office of Planning and Research, and the Department of Housing
and Community Development that includes all of the following:
(A) The status of the plan and progress in its implementation.
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(B) The progress in meeting its share of regional housing needs
determined pursuant to Section 65584 and local efforts to remove
governmental constraints to the maintenance, improvement, and development
of housing pursuant to paragraph (3) of subdivision (c) of Section 65583.
The housing element portion of the annual report, as required by this
paragraph, shall be prepared through the use of standards, forms, and
definitions adopted by the Department of Housing and Community
Development. The department may review, adopt, amend, and repeal the
standards, forms, or definitions, to implement this article. Any standards,
forms, or definitions adopted to implement this article shall not be subject
to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of
Title 2. Before and after adoption of the forms, the housing element portion
of the annual report shall include a section that describes the actions taken
by the local government towards completion of the programs and status of
the local government’s compliance with the deadlines in its housing element.
That report shall be considered at an annual public meeting before the
legislative body where members of the public shall be allowed to provide
oral testimony and written comments.
The report may include the number of units that have been substantially
rehabilitated, converted from nonaffordable to affordable by acquisition,
and preserved consistent with the standards set forth in paragraph (2) of
subdivision (c) of Section 65583.1. The report shall document how the units
meet the standards set forth in that subdivision.
(C) The number of housing development applications received in the
prior year.
(D) The number of units included in all development applications in the
prior year.
(E) The number of units approved and disapproved in the prior year.
(F) The degree to which its approved general plan complies with the
guidelines developed and adopted pursuant to Section 65040.2 and the date
of the last revision to the general plan.
(G) A listing of sites rezoned to accommodate that portion of the city’s
or county’s share of the regional housing need for each income level that
could not be accommodated on sites identified in the inventory required by
paragraph (1) of subdivision (c) of Sections 65583 and 65584.09. The listing
of sites shall also include any additional sites that may have been required
to be identified by Section 65863.
(H) The number of net new units of housing, including both rental housing
and for-sale housing, that have been issued a completed entitlement, a
building permit, or a certificate of occupancy, thus far in the housing element
cycle, and the income category, by area median income category, that each
unit of housing satisfies. That production report shall, for each income
category described in this subparagraph, distinguish between the number
of rental housing units and the number of for-sale units that satisfy each
income category. The production report shall include, for each entitlement,
building permit, or certificate of occupancy, a unique site identifier which
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Ch. 366 —6—
must include the assessor’s parcel number, but may include street address,
or other identifiers.
(I) The number of applications submitted pursuant to subdivision (a) of
Section 65913.4, the location and the total number of developments approved
pursuant to subdivision (b) of Section 65913.4, the total number of building
permits issued pursuant to subdivision (b) of Section 65913.4, the total
number of units including both rental housing and for-sale housing by area
median income category constructed using the process provided for in
subdivision (b) of Section 65913.4.
(J) The Department of Housing and Community Development shall post
a report submitted pursuant to this paragraph on its Internet Web site within
a reasonable time of receiving the report.
(b) If a court finds, upon a motion to that effect, that a city, county, or
city and county failed to submit, within 60 days of the deadline established
in this section, the housing element portion of the report required pursuant
to subparagraph (B) of paragraph (2) of subdivision (a) that substantially
complies with the requirements of this section, the court shall issue an order
or judgment compelling compliance with this section within 60 days. If the
city, county, or city and county fails to comply with the court’s order within
60 days, the plaintiff or petitioner may move for sanctions, and the court
may, upon that motion, grant appropriate sanctions. The court shall retain
jurisdiction to ensure that its order or judgment is carried out. If the court
determines that its order or judgment is not carried out within 60 days, the
court may issue further orders as provided by law to ensure that the purposes
and policies of this section are fulfilled. This subdivision applies to
proceedings initiated on or after the first day of October following the
adoption of forms and definitions by the Department of Housing and
Community Development pursuant to paragraph (2) of subdivision (a), but
no sooner than six months following that adoption.
SEC. 2. Section 65582.1 of the Government Code is amended to read:
65582.1. The Legislature finds and declares that it has provided reforms
and incentives to facilitate and expedite the approval and construction of
affordable housing. Those reforms and incentives can be found in the
following provisions:
(a) Housing element law (Article 10.6 (commencing with Section 65580)
of Chapter 3).
(b) Extension of statute of limitations in actions challenging the housing
element and brought in support of affordable housing (subdivision (d) of
Section 65009).
(c) Restrictions on disapproval of housing developments (Section
65589.5).
(d) Priority for affordable housing in the allocation of water and sewer
hookups (Section 65589.7).
(e) Least cost zoning law (Section 65913.1).
(f) Density bonus law (Section 65915).
(g) Accessory dwelling units (Sections 65852.150 and 65852.2).
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(h) By-right housing, in which certain multifamily housing are designated
a permitted use (Section 65589.4).
(i) No-net-loss-in zoning density law limiting downzonings and density
reductions (Section 65863).
(j) Requiring persons who sue to halt affordable housing to pay attorney
fees (Section 65914) or post a bond (Section 529.2 of the Code of Civil
Procedure).
(k) Reduced time for action on affordable housing applications under
the approval of development permits process (Article 5 (commencing with
Section 65950) of Chapter 4.5).
(l) Limiting moratoriums on multifamily housing (Section 65858).
(m) Prohibiting discrimination against affordable housing (Section
65008).
(n) California Fair Employment and Housing Act (Part 2.8 (commencing
with Section 12900) of Division 3).
(o) Community redevelopment law (Part 1 (commencing with Section
33000) of Division 24 of the Health and Safety Code, and in particular
Sections 33334.2 and 33413).
(p) Streamlining housing approvals during a housing shortage (Section
65913.4).
SEC. 2.5. Section 65582.1 of the Government Code is amended to read:
65582.1. The Legislature finds and declares that it has provided reforms
and incentives to facilitate and expedite the construction of affordable
housing. Those reforms and incentives can be found in the following
provisions:
(a) Housing element law (Article 10.6 (commencing with Section 65580)
of Chapter 3).
(b) Extension of statute of limitations in actions challenging the housing
element and brought in support of affordable housing (subdivision (d) of
Section 65009).
(c) Restrictions on disapproval of housing developments (Section
65589.5).
(d) Priority for affordable housing in the allocation of water and sewer
hookups (Section 65589.7).
(e) Least cost zoning law (Section 65913.1).
(f) Density bonus law (Section 65915).
(g) Accessory dwelling units (Sections 65852.150 and 65852.2).
(h) By-right housing, in which certain multifamily housing are designated
a permitted use (Section 65589.4).
(i) No-net-loss-in zoning density law limiting downzonings and density
reductions (Section 65863).
(j) Requiring persons who sue to halt affordable housing to pay attorney
fees (Section 65914) or post a bond (Section 529.2 of the Code of Civil
Procedure).
(k) Reduced time for action on affordable housing applications under
the approval of development permits process (Article 5 (commencing with
Section 65950) of Chapter 4.5).
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(l) Limiting moratoriums on multifamily housing (Section 65858).
(m) Prohibiting discrimination against affordable housing (Section
65008).
(n) California Fair Employment and Housing Act (Part 2.8 (commencing
with Section 12900) of Division 3).
(o) Community redevelopment law (Part 1 (commencing with Section
33000) of Division 24 of the Health and Safety Code, and in particular
Sections 33334.2 and 33413).
(p) Streamlining housing approvals during a housing shortage (Section
65913.4).
(q) Housing sustainability districts (Chapter 11 (commencing with Section
66200)).
SEC. 3. Section 65913.4 is added to the Government Code, to read:
65913.4. (a) A development proponent may submit an application for
a development that is subject to the streamlined, ministerial approval process
provided by subdivision (b) and not subject to a conditional use permit if
the development satisfies all of the following objective planning standards:
(1) The development is a multifamily housing development that contains
two or more residential units.
(2) The development is located on a site that satisfies all of the following:
(A) A site that is a legal parcel or parcels located in a city if, and only
if, the city boundaries 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 or parcels wholly within the boundaries
of an urbanized area or urban cluster, as designated by the United States
Census Bureau.
(B) A site in which at least 75 percent of the perimeter of the site adjoins
parcels that are developed with urban uses. For the purposes of this section,
parcels that are only separated by a street or highway shall be considered
to be adjoined.
(C) A site that is zoned for residential use or residential mixed-use
development, or has a general plan designation that allows residential use
or a mix of residential and nonresidential uses, with at least two-thirds of
the square footage of the development designated for residential use.
(3) If the development contains units that are subsidized, the development
proponent already has recorded, or is required by law to record, a land use
restriction for the following applicable minimum durations:
(A) Fifty-five years for units that are rented.
(B) Forty-five years for units that are owned.
(4) The development satisfies both of the following:
(A) Is located in a locality that the department has determined is subject
to this subparagraph on the basis that the number of units that have been
issued building permits is less than the locality’s share of the regional
housing needs, by income category, for that reporting period. A locality
shall remain eligible under this subparagraph until the department’s
determination for the next reporting period. A locality shall be subject to
this subparagraph if it has not submitted an annual housing element report
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to the department pursuant to paragraph (2) of subdivision (a) of Section
65400 for at least two consecutive years before the development submitted
an application for approval under this section.
(B) The development is subject to a requirement mandating a minimum
percentage of below market rate housing based on one of the following:
(i) The locality did not submit its latest production report to the
department by the time period required by Section 65400, or that production
report reflects that there were fewer units of above moderate-income housing
approved than were required for the regional housing needs assessment
cycle for that reporting period. In addition, if the project contains more than
10 units of housing, the project seeking approval dedicates a minimum of
10 percent of the total number of units to housing affordable to households
making below 80 percent of the area median income. If the locality has
adopted a local ordinance that requires that greater than 10 percent of the
units be dedicated to housing affordable to households making below 80
percent of the area median income, that zoning ordinance applies.
(ii) The locality did not submit its latest production report to the
department by the time period required by Section 65400, or that production
report reflects that there were fewer units of housing affordable to households
making below 80 percent of the area median income that were issued
building permits than were required for the regional housing needs
assessment cycle for that reporting period, and the project seeking approval
dedicates 50 percent of the total number of units to housing affordable to
households making below 80 percent of the area median income, unless the
locality has adopted a local ordinance that requires that greater than 50
percent of the units be dedicated to housing affordable to households making
below 80 percent of the area median income, in which case that ordinance
applies.
(iii) The locality did not submit its latest production report to the
department by the time period required by Section 65400, or if the production
report reflects that there were fewer units of housing affordable to any
income level described in clause (i) or (ii) that were issued building permits
than were required for the regional housing needs assessment cycle for that
reporting period, the project seeking approval may choose between utilizing
clause (i) or (ii).
(5) The development, excluding any additional density or any other
concessions, incentives, or waivers of development standards granted
pursuant to the Density Bonus Law in Section 65915, is consistent with
objective zoning standards and objective design review standards in effect
at the time that the development is submitted to the local government
pursuant to this section. For purposes of this paragraph, “objective zoning
standards” and “objective design review standards” mean standards that
involve no personal or subjective judgment by a public official and are
uniformly verifiable by reference to an external and uniform benchmark or
criterion available and knowable by both the development applicant or
proponent and the public official prior to submittal. These standards may
be embodied in alternative objective land use specifications adopted by a
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Ch. 366 — 10 —
city or county, and may include, but are not limited to, housing overlay
zones, specific plans, inclusionary zoning ordinances, and density bonus
ordinances, subject to the following:
(A) A development shall be deemed consistent with the objective zoning
standards related to housing density, as applicable, if the density proposed
is compliant with the maximum density allowed within that land use
designation, notwithstanding any specified maximum unit allocation that
may result in fewer units of housing being permitted.
(B) In the event that objective zoning, general plan, or design review
standards are mutually inconsistent, a development shall be deemed
consistent with the objective zoning standards pursuant to this subdivision
if the development is consistent with the standards set forth in the general
plan.
(6) The development is not located on a site that is any of the following:
(A) A coastal zone, as defined in Division 20 (commencing with Section
30000) of the Public Resources Code.
(B) Either prime farmland or farmland of statewide importance, as defined
pursuant to 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).
(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.
(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
the Department of Toxic Substances Control has cleared the site 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.
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(G) Within a flood plain as determined by maps promulgated by the
Federal Emergency Management Agency, unless the development has been
issued a flood plain development permit 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 floodway as determined by maps promulgated 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.
(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.
(7) The development is not located on a site where any of the following
apply:
(A) The development would require the demolition 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) Housing that has been occupied by tenants within the past 10 years.
(B) The site was previously used for housing that was occupied by tenants
that was demolished within 10 years before the development proponent
submits an application under this section.
(C) The development would require the demolition of a historic structure
that was placed on a national, state, or local historic register.
(D) The property contains housing units that are occupied by tenants,
and units at the property are, or were, subsequently offered for sale to the
general public by the subdivider or subsequent owner of the property.
(8) The development proponent has done both of the following, as
applicable:
(A) Certified to the locality that either of the following is true, as
applicable:
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Ch. 366 — 12 —
(i) The entirety of the development is a public work for purposes of
Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the
Labor Code.
(ii) If the development is not in its entirety a public work, that all
construction workers employed in the execution of the development will
be paid at least the general prevailing rate of per diem wages for the type
of work and geographic area, as determined by the Director of Industrial
Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except
that apprentices registered in programs approved by the Chief of the Division
of Apprenticeship Standards may be paid at least the applicable apprentice
prevailing rate. If the development is subject to this subparagraph, then for
those portions of the development that are not a public work all of the
following shall apply:
(I) The development proponent shall ensure that the prevailing wage
requirement is included in all contracts for the performance of the work.
(II) All contractors and subcontractors shall pay to all construction
workers employed in the execution of the work at least the general prevailing
rate of per diem wages, except that apprentices registered in programs
approved by the Chief of the Division of Apprenticeship Standards may be
paid at least the applicable apprentice prevailing rate.
(III) Except as provided in subclause (V), all contractors and
subcontractors shall maintain and verify payroll records pursuant to Section
1776 of the Labor Code and make those records available for inspection
and copying as provided in therein.
(IV) Except as provided in subclause (V), the obligation of the contractors
and subcontractors to pay prevailing wages may be enforced by the Labor
Commissioner through the issuance of a civil wage and penalty assessment
pursuant to Section 1741 of the Labor Code, which may be reviewed
pursuant to Section 1742 of the Labor Code, within 18 months after the
completion of the development, by an
Preview
1 Law Office of Andréa Marcus, APC Andréa Marcus (SBN 118098) 2 133 E. De La Guerra St. #143 Santa Barbara California 93101 3 Telephone: (888) 215-9021 4 Fax: (888) 215-9021 Email: andrea@andreamarcuslaw.com 5 Richard C. Solomon (SBN 41107) 6 2640 Las Encinas Lane Santa Barbara, CA, 93105 7 Telephone: (805) 452-5839 8 Fax: (888) 215-9021 Email: rcsolomon42@gmail.com 9 Attorneys for Plaintiff/Petitioner 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SANTA BARBARA 12 JANA ZIMMER, INDIVIDUALLY AND AS ) Case No.: 24CV00199 13 TRUSTEE OF THE SOLOMON-ZIMMER ) LIVING TRUST, ) PLAINTIFF’S REQUEST FOR 14 ) JUDICIAL NOTICE; POINTS AND Plaintiff/Petitioner, ) AUTHORITIES; PLAINTIFF’S 15 v. ) OBJECTION TO DEFENDANTS’ 16 ) REQUEST FOR JUDICIAL NOTICE COUNTY OF SANTA BARBARA, BOARD ) 17 OF SUPERVISORS OF THE COUNTY OF ) Petition Filed: January 16, 2024 SANTA BARBARA, LISA PLOWMAN, ) Hearing: April 29, 2024 10:00 AM 18 DIRECTOR OF PLANNING AND ) DEVELOPMENT, ROB HAZARD, FIRE ) Judge: Hon. Colleen Sterne 19 MARSHAL, TRAVIS SEAWARDS, ) Dept: 5 DEPUTY DIRECTOR OF PLANNING AND ) 20 DEVELOPMENT, DAS WILLIAMS, FIRST ) 21 DISTRICT SUPERVISOR, DOES 1-25, in ) their official and individual capacities, ) 22 ) Defendants/Respondents. ) 23 ) 24 25 TO THE COURT, AND TO ALL PARTIES OF RECORD AND THEIR ATTORNEYS 26 27 28 1 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 1 In support of their Opposition to Demurrer, and their Opposition to Defendants’ Motion to 2 Strike, Plaintiff, Jana Zimmer as Trustee of the Solomon-Zimmer Living Trust, through her 3 attorneys of record, requests that the Court take judicial notice of the records listed below pursuant 4 to California Evidence Code Section 451, 452(b), (h) and 453. All exhibits are true and correct 5 copies of the document referenced. Each and all of them are relevant to establish Plaintiff’s claims. 6 7 1. SB 35 An act to amend Sections 65400 and 65582.1 of, and to add and repeal Section 65913.4 of, the Government Code, relating to housing. SB 35 added Section 8 65913.4.6(D), and was applied to ADUs through Gov. Code Section 65582.1(g) 9 2. HCD Guidelines on SB 35, Streamlined Processing 9.29.2017 10 11 3. SB 8 An act to amend Sections 65589.5, 65905.5, 65913.10, 65940, 65941.1, 65943, 12 65950, 66300, and 66301 of the Government Code, and to amend Section 2 of Chapter 654 of the Statutes of 2019, relating to housing. 13 14 4. SB 9 An act to amend Section 66452.6 of, and to add Sections 65852.21 and 66411.7 to the Government Code, relating to land use. 15 16 5. HCD SB 9 Fact Sheet March, 2021 17 6. SB 330 An act to amend Section 65589.5 of, to amend, repeal, and add Sections 65940, 65943, and 65950 of, to add and repeal Sections 65905.5, 65913.10, and 65941.1 of, and 18 to add and repeal Chapter 12 (commencing with Section 66300) of Division 1 of Title 7 19 of, the Government Code, relating to housing. [ Approved by Governor October 09, 2019. Filed with Secretary of State October 9, 2019. ] 20 21 7. California Legislative Information – Bill History SB 8 and SB 9 amending SB 330 signed together 9.16.2021 22 8. SB 423 An act to amend Section 65913.4 of the Government Code, relating to land 23 use. Approved by Governor October 11, 2023. Filed with Secretary of 24 State October 11, 2023. ] 25 9. State Responsibility Area (SRA) FIRE SAFE REGULATIONS, 2020 amendments to 14 CCR, Division 1.5, Chapter 7 Fire Protection, Subchapter 2, Articles 1-5. 26 27 10. AB 1033 Ting Accessory dwelling units. local ordinances: separate sale or conveyance. 28 2 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 1 11. Minute Order County of Santa Barbara Board of Supervisors, Resolution No. 23-271, 2 adoption of Housing Element 12.5.2023, with public comment letter Zimmer 12.3.2023. 3 12. Santa Barbara County Standard format and content: Determination of Application 4 Completeness. 5 13. Minute Order and Resolution No. 23-18 of the Board of Supervisors of Santa Barbara 6 County re: International Holocaust Remembrance Day 1.23.2023, with speaker list 7 14. Policy Fire MC-3, Mission Canyon Specific Plan, pp. 32-51 8 15. E-mail Attorney Solomon to County Counsel 4-1-2024 re: Plaintiff’s Index of proposed 9 Exhibits for hearing 10 16. E-mail Response of Attorney Solomon to County Counsel re: Meet and Confer on 11 County proposed Demurrer 3.11.2024 12 17. E-mail cover, Fire Marshal demand of 6.21.2023 for “Option” demanded prior to recordation 13 14 18. County of Santa Barbara announcement re: delays in building permit processing 15 19. E mail chain Plowman, Seawards, Dargiel and Zimmer 4.13-4.14.2023 re: Status 16 20. AICP Code of Ethics 17 21. AB 473 Public Records Act recodification 18 19 22. Assembly Judiciary on AB 473 recodification 20 23. Santa Barbara County Records Notice dated 7.31.23 of “Extension” under Public Records Act to 8.14.2023 21 22 24. E mail Fire Marshal to Zimmer 6.21.2023 demanding improvements “prior to recordation” 23 25. E-Mail from Fire Marshal to Zimmer 5.14.2023 admission that Local Responsibility Area 24 Maps not sent to State in 2013 25 26. “Anti-Semitism Uncovered: A Guide to Old Myths in a New Era” Anti-Defamation 26 League (2023) 27 28 3 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 1 27. E-mail Zimmer to Board of Supervisors Comment on Impact of Safety Element 7.6.2023 on her pending lot split application 2 3 28. County of Santa Barbara Amended Resolution adopted 12.5.2022 4 29. HCD Letter to County of Santa Barbara January 30, 2024 5 6 30. FPPC Advice Letter 12.11.2013 re: use of campaign funds to defend litigation 7 31. FPPC Letter to SB County 3.21.03 8 The court may take judicial notice of each and all of Exhibits 1-31 under Evid. Code 9 10 452(b), 452(h) because they are: 11 1. Legislative enactments of the State of California Exhibit 1,3,4,6,7,8,10,21,22 12 2. Legislative enactments of the County of Santa Barbara Exhibit 11,13,14 13 14 3. Guidelines or regulations of a State Agency Exhibit 2,5,9, 15 4. Matters which are not subject to dispute under Evid. Code Section 452(h), as they are 16 documents generated by the County or within the County’s possession. 17 12,15,16,17,18,19,20,23,24,25,26,27, 28,29 18 5. 26 Anti-Defamation League Definitions of antisemitism not reasonably subject to 19 dispute, e.g., defamatory tropes about Jews’ greed, preoccupation with saving money, 20 influence. 21 22 6. FPPC Advice Letters 30,31 23 Argument 24 “It is well recognized that the purpose of judicial notice is to expedite the production and 25 introduction of otherwise admissible evidence.”). Mozzetti v. City of Brisbane (1977) 67 26 27 Cal.App.3d 565, 578. "Judicial notice of matters upon demurrer will be dispositive only in those 28 4 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 1 instances where there is not or cannot be a factual dispute concerning that which is sought to be 2 judicially noticed." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 (Cruz); 3 accord, Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325.) 4 Plaintiff objects to Defendant’s Request for Judicial Notice as irrelevant, and 5 6 inadmissible, and highly prejudicial in context of Defendants’ Demurrer. 7 First, their Exhibits 1 and 2 do not accurately reflect the actions taken by the Board of 8 Supervisors, or the reasons for them. (See, Plaintiff’s RJN 28) The pages submitted appear to be 9 a mix of a excerpts of a few pages from the Building Code, a few pages of a pre-existing version 10 of the local Fire Code, Chapter 15 of the County Code. (even the typeface is different). The 11 references in that attachment, to Section 503.2.1 through 503.2 reflect standards with which 12 Plaintiff has already complied, or which cannot be applied to her lot split. The specific hose 13 14 length requirement mentioned is the same requirement which the Fire Marshal expressly waived 15 when Plaintiff agreed to install sprinklers in her ADU. (Complaint, Para. 23, and Plaintiff’s RJN 16 28.) 17 The Resolution adopted by the Board of Supervisors on December 5, 2022 reflects 18 additions to the County Fire Code deemed necessary due to local conditions and appear to justify 19 the need to add a sprinkler requirement in all buildings within the urban boundary. They do not 20 appear to reflect changes to road width standards. Plaintiff already agreed to sprinkler the new 21 22 dwelling in March of 2022. (Para. 23) 23 24 “County Fire approved that dwelling, subject only to a condition that Plaintiff install sprinklers in the new unit, which the Fire Marshal found had the “same practical effect” 25 as the 150 foot equipment access requirement set forth in their Development Standards ( 5.12 Building Access. “The furthest projection of the exterior wall of a building shall be 26 accessible from within one hundred fifty feet (150’) of an approved public or private road or private driveway for where the fire apparatus shall position as measured by an 27 28 5 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 1 unobstructed route around the exterior of the building.) This development standard constitutes an “objective standard” within the meaning of Gov. Code 65913.4(a)(6)(D).)” 2 The specific references to Title 14 in the Building Code explicitly provide for substituting 3 4 sprinklering for the 150 foot hose length requirement. Plaintiff did agree to sprinkler her ADU, as 5 a “same practical effect” measure for fire equipment access, even though it was not then required 6 under the Fire Code. (Complaint, Para. 6. ) 7 Second , their submittal reflects the 20 foot road width requirement which they know 8 they cannot lawfully apply under policy Mission Canyon Plan FIRE-MC3, to pre-existing roads, 9 10 and which they have waived, presumably on advice of Counsel, in favor of a 15’ foot road width, 11 with which Plaintiff has complied. (Complaint Para. 10, 49, 54-55, 111, 112). Plaintiff alleges 12 that she in fact achieved the 15’ road width prior to filing the Complaint. (Para 9) 13 Defendants’ Request for Judicial Notice is not relevant, and is entirely misleading. 14 15 16 Respectfully Submitted, 17 18 __ __ DATED: April 16, 2024 19 20 Richard C. Solomon, Esq. 21 Andréa Marcus 22 Attorneys for Plaintiff 23 24 25 26 27 28 6 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE; POINTS AND AUTHORITIES; PLAINTIFF’S OBJECTION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE EXHIBIT 1 STATE OF CALIFORNIA AUTHENTICATED ELECTRONIC LEGAL MATERIAL Senate Bill No. 35 CHAPTER 366 An act to amend Sections 65400 and 65582.1 of, and to add and repeal Section 65913.4 of, the Government Code, relating to housing. [Approved by Governor September 29, 2017. Filed with Secretary of State September 29, 2017.] legislative counsel’s digest SB 35, Wiener. Planning and zoning: affordable housing: streamlined approval process. (1) The Planning and Zoning Law requires a city or county to adopt a general plan for land use development within its boundaries that includes, among other things, a housing element. The Planning and Zoning Law requires a planning agency, after a legislative body has adopted all or part of a general plan, to provide an annual report to the legislative body, the Office of Planning and Research, and the Department of Housing and Community Development on the status of the general plan and progress in meeting the community’s share of regional housing needs. Existing law requires the housing element portion of the annual report to be prepared through the use of forms and definitions adopted by the department pursuant to the Administrative Procedure Act. This bill would require the housing element portion of the annual report to be prepared through the use of standards, forms, and definitions adopted by the department. The bill would eliminate the requirement that the forms and definitions be adopted by the department pursuant to the Administrative Procedure Act and would instead authorize the department to review, adopt, amend, and repeal the standards, forms, or definitions, as provided. The bill would also require the planning agency to include in its annual report specified information regarding units of net new housing, including rental housing and for-sale housing that have been issued a completed entitlement, building permit, or certificate of occupancy. The bill would also require the Department of Housing and Community Development to post an annual report submitted pursuant to the requirement described above on its Internet Web site, as provided. (2) Existing law requires an attached housing development to be a permitted use, not subject to a conditional use permit, on any parcel zoned for multifamily housing if at least certain percentages of the units are available at affordable housing costs to very low income, lower income, and moderate-income households for at least 30 years and if the project meets specified conditions relating to location and being subject to a discretionary decision other than a conditional use permit. Existing law 87 8 Ch. 366 —2— provides for various incentives intended to facilitate and expedite the construction of affordable housing. This bill would authorize a development proponent to submit an application for a multifamily housing development, which satisfies specified planning objective standards, that is subject to a streamlined, ministerial approval process, as provided, and not subject to a conditional use permit. The bill would require a local government to notify the development proponent in writing if the local government determines that the development conflicts with any of those objective standards by a specified time; otherwise, the development is deemed to comply with those standards. The bill would limit the authority of a local government to impose parking standards or requirements on a streamlined development approved pursuant to these provisions, as provided. The bill would provide that if a local government approves a project pursuant to that process, that approval will not expire if that project includes investment in housing affordability, and would otherwise provide that the approval of a project expire automatically after 3 years, unless that project qualifies for a one-time, one-year extension of that approval. The bill would provide that approval pursuant to its provisions would remain valid for three years and remain valid thereafter so long as vertical construction of the development has begun and is in progress, and would authorize a discretionary one-year extension, as provided. The bill would prohibit a local government from adopting any requirement that applies to a project solely or partially on the basis that the project receives ministerial or streamlined approval pursuant to these provisions. The bill would repeal these provisions as of January 1, 2026. (3) The bill would make findings that ensuring access to affordable housing is a matter of statewide concern and declare that its provisions would apply to all cities and counties, including a charter city, a charter county, or a charter city and county. (4) By imposing new duties upon local agencies with respect to the streamlined approval process and reporting requirement described above, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. (5) This bill would incorporate additional changes to Section 65400 of the Government Code proposed by AB 879 to be operative only if this bill and AB 879 are enacted and this bill is enacted last. This bill would incorporate additional changes to Section 65582.1 of the Government Code proposed by AB 73 to be operative only if this bill and AB 73 are enacted and this bill is enacted last. 87 9 —3— Ch. 366 The people of the State of California do enact as follows: SECTION 1. Section 65400 of the Government Code is amended to read: 65400. (a) After the legislative body has adopted all or part of a general plan, the planning agency shall do both of the following: (1) Investigate and make recommendations to the legislative body regarding reasonable and practical means for implementing the general plan or element of the general plan, so that it will serve as an effective guide for orderly growth and development, preservation and conservation of open-space land and natural resources, and the efficient expenditure of public funds relating to the subjects addressed in the general plan. (2) Provide by April 1 of each year an annual report to the legislative body, the Office of Planning and Research, and the Department of Housing and Community Development that includes all of the following: (A) The status of the plan and progress in its implementation. (B) The progress in meeting its share of regional housing needs determined pursuant to Section 65584 and local efforts to remove governmental constraints to the maintenance, improvement, and development of housing pursuant to paragraph (3) of subdivision (c) of Section 65583. The housing element portion of the annual report, as required by this paragraph, shall be prepared through the use of standards, forms, and definitions adopted by the Department of Housing and Community Development. The department may review, adopt, amend, and repeal the standards, forms, or definitions, to implement this article. Any standards, forms, or definitions adopted to implement this article shall not be subject to Chapter 3.5 (commencing with Section 11340) or Part 1 of Division 3 of Title 2. Before and after adoption of the forms, the housing element portion of the annual report shall include a section that describes the actions taken by the local government towards completion of the programs and status of the local government’s compliance with the deadlines in its housing element. That report shall be considered at an annual public meeting before the legislative body where members of the public shall be allowed to provide oral testimony and written comments. The report may include the number of units that have been substantially rehabilitated, converted from nonaffordable to affordable by acquisition, and preserved consistent with the standards set forth in paragraph (2) of subdivision (c) of Section 65583.1. The report shall document how the units meet the standards set forth in that subdivision. (C) The degree to which its approved general plan complies with the guidelines developed and adopted pursuant to Section 65040.2 and the date of the last revision to the general plan. (D) The number of net new units of housing, including both rental housing and for-sale housing, that have been issued a completed entitlement, a building permit, or a certificate of occupancy, thus far in the housing element cycle, and the income category, by area median income category, that each unit of housing, including both rental housing and housing designated for 87 10 Ch. 366 —4— home ownership, satisfies. That production report shall, for each income category described in this subparagraph, distinguish between the number of rental housing units and the number of for-sale housing units that satisfy each income category. The production report shall include, for each entitlement, building permit, or certificate of occupancy, a unique site identifier, which must include an assessor’s parcel number, but may also include street address or other identifiers. (E) The number of applications submitted pursuant to subdivision (a) of Section 65913.4, the location and the total number of developments approved pursuant to subdivision (b) of Section 65913.4, the total number of building permits issued pursuant to subdivision (b) of Section 65913.4, the total number of units including both rental housing and for-sale housing by area median income category constructed using the process provided for in subdivision (b) of Section 65913.4. (F) The Department of Housing and Community Development shall post a report submitted pursuant to this paragraph on its Internet Web site within a reasonable time of receiving the report. (b) If a court finds, upon a motion to that effect, that a city, county, or city and county failed to submit, within 60 days of the deadline established in this section, the housing element portion of the report required pursuant to subparagraph (B) of paragraph (2) of subdivision (a) that substantially complies with the requirements of this section, the court shall issue an order or judgment compelling compliance with this section within 60 days. If the city, county, or city and county fails to comply with the court’s order within 60 days, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions. The court shall retain jurisdiction to ensure that its order or judgment is carried out. If the court determines that its order or judgment is not carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled. This subdivision applies to proceedings initiated on or after the first day of October following the adoption of forms and definitions by the Department of Housing and Community Development pursuant to paragraph (2) of subdivision (a), but no sooner than six months following that adoption. SEC. 1.5. Section 65400 of the Government Code is amended to read: 65400. (a) After the legislative body has adopted all or part of a general plan, the planning agency shall do both of the following: (1) Investigate and make recommendations to the legislative body regarding reasonable and practical means for implementing the general plan or element of the general plan, so that it will serve as an effective guide for orderly growth and development, preservation and conservation of open-space land and natural resources, and the efficient expenditure of public funds relating to the subjects addressed in the general plan. (2) Provide by April 1 of each year an annual report to the legislative body, the Office of Planning and Research, and the Department of Housing and Community Development that includes all of the following: (A) The status of the plan and progress in its implementation. 87 11 —5— Ch. 366 (B) The progress in meeting its share of regional housing needs determined pursuant to Section 65584 and local efforts to remove governmental constraints to the maintenance, improvement, and development of housing pursuant to paragraph (3) of subdivision (c) of Section 65583. The housing element portion of the annual report, as required by this paragraph, shall be prepared through the use of standards, forms, and definitions adopted by the Department of Housing and Community Development. The department may review, adopt, amend, and repeal the standards, forms, or definitions, to implement this article. Any standards, forms, or definitions adopted to implement this article shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2. Before and after adoption of the forms, the housing element portion of the annual report shall include a section that describes the actions taken by the local government towards completion of the programs and status of the local government’s compliance with the deadlines in its housing element. That report shall be considered at an annual public meeting before the legislative body where members of the public shall be allowed to provide oral testimony and written comments. The report may include the number of units that have been substantially rehabilitated, converted from nonaffordable to affordable by acquisition, and preserved consistent with the standards set forth in paragraph (2) of subdivision (c) of Section 65583.1. The report shall document how the units meet the standards set forth in that subdivision. (C) The number of housing development applications received in the prior year. (D) The number of units included in all development applications in the prior year. (E) The number of units approved and disapproved in the prior year. (F) The degree to which its approved general plan complies with the guidelines developed and adopted pursuant to Section 65040.2 and the date of the last revision to the general plan. (G) A listing of sites rezoned to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on sites identified in the inventory required by paragraph (1) of subdivision (c) of Sections 65583 and 65584.09. The listing of sites shall also include any additional sites that may have been required to be identified by Section 65863. (H) The number of net new units of housing, including both rental housing and for-sale housing, that have been issued a completed entitlement, a building permit, or a certificate of occupancy, thus far in the housing element cycle, and the income category, by area median income category, that each unit of housing satisfies. That production report shall, for each income category described in this subparagraph, distinguish between the number of rental housing units and the number of for-sale units that satisfy each income category. The production report shall include, for each entitlement, building permit, or certificate of occupancy, a unique site identifier which 87 12 Ch. 366 —6— must include the assessor’s parcel number, but may include street address, or other identifiers. (I) The number of applications submitted pursuant to subdivision (a) of Section 65913.4, the location and the total number of developments approved pursuant to subdivision (b) of Section 65913.4, the total number of building permits issued pursuant to subdivision (b) of Section 65913.4, the total number of units including both rental housing and for-sale housing by area median income category constructed using the process provided for in subdivision (b) of Section 65913.4. (J) The Department of Housing and Community Development shall post a report submitted pursuant to this paragraph on its Internet Web site within a reasonable time of receiving the report. (b) If a court finds, upon a motion to that effect, that a city, county, or city and county failed to submit, within 60 days of the deadline established in this section, the housing element portion of the report required pursuant to subparagraph (B) of paragraph (2) of subdivision (a) that substantially complies with the requirements of this section, the court shall issue an order or judgment compelling compliance with this section within 60 days. If the city, county, or city and county fails to comply with the court’s order within 60 days, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions. The court shall retain jurisdiction to ensure that its order or judgment is carried out. If the court determines that its order or judgment is not carried out within 60 days, the court may issue further orders as provided by law to ensure that the purposes and policies of this section are fulfilled. This subdivision applies to proceedings initiated on or after the first day of October following the adoption of forms and definitions by the Department of Housing and Community Development pursuant to paragraph (2) of subdivision (a), but no sooner than six months following that adoption. SEC. 2. Section 65582.1 of the Government Code is amended to read: 65582.1. The Legislature finds and declares that it has provided reforms and incentives to facilitate and expedite the approval and construction of affordable housing. Those reforms and incentives can be found in the following provisions: (a) Housing element law (Article 10.6 (commencing with Section 65580) of Chapter 3). (b) Extension of statute of limitations in actions challenging the housing element and brought in support of affordable housing (subdivision (d) of Section 65009). (c) Restrictions on disapproval of housing developments (Section 65589.5). (d) Priority for affordable housing in the allocation of water and sewer hookups (Section 65589.7). (e) Least cost zoning law (Section 65913.1). (f) Density bonus law (Section 65915). (g) Accessory dwelling units (Sections 65852.150 and 65852.2). 87 13 —7— Ch. 366 (h) By-right housing, in which certain multifamily housing are designated a permitted use (Section 65589.4). (i) No-net-loss-in zoning density law limiting downzonings and density reductions (Section 65863). (j) Requiring persons who sue to halt affordable housing to pay attorney fees (Section 65914) or post a bond (Section 529.2 of the Code of Civil Procedure). (k) Reduced time for action on affordable housing applications under the approval of development permits process (Article 5 (commencing with Section 65950) of Chapter 4.5). (l) Limiting moratoriums on multifamily housing (Section 65858). (m) Prohibiting discrimination against affordable housing (Section 65008). (n) California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3). (o) Community redevelopment law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code, and in particular Sections 33334.2 and 33413). (p) Streamlining housing approvals during a housing shortage (Section 65913.4). SEC. 2.5. Section 65582.1 of the Government Code is amended to read: 65582.1. The Legislature finds and declares that it has provided reforms and incentives to facilitate and expedite the construction of affordable housing. Those reforms and incentives can be found in the following provisions: (a) Housing element law (Article 10.6 (commencing with Section 65580) of Chapter 3). (b) Extension of statute of limitations in actions challenging the housing element and brought in support of affordable housing (subdivision (d) of Section 65009). (c) Restrictions on disapproval of housing developments (Section 65589.5). (d) Priority for affordable housing in the allocation of water and sewer hookups (Section 65589.7). (e) Least cost zoning law (Section 65913.1). (f) Density bonus law (Section 65915). (g) Accessory dwelling units (Sections 65852.150 and 65852.2). (h) By-right housing, in which certain multifamily housing are designated a permitted use (Section 65589.4). (i) No-net-loss-in zoning density law limiting downzonings and density reductions (Section 65863). (j) Requiring persons who sue to halt affordable housing to pay attorney fees (Section 65914) or post a bond (Section 529.2 of the Code of Civil Procedure). (k) Reduced time for action on affordable housing applications under the approval of development permits process (Article 5 (commencing with Section 65950) of Chapter 4.5). 87 14 Ch. 366 —8— (l) Limiting moratoriums on multifamily housing (Section 65858). (m) Prohibiting discrimination against affordable housing (Section 65008). (n) California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3). (o) Community redevelopment law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code, and in particular Sections 33334.2 and 33413). (p) Streamlining housing approvals during a housing shortage (Section 65913.4). (q) Housing sustainability districts (Chapter 11 (commencing with Section 66200)). SEC. 3. Section 65913.4 is added to the Government Code, to read: 65913.4. (a) A development proponent may submit an application for a development that is subject to the streamlined, ministerial approval process provided by subdivision (b) and not subject to a conditional use permit if the development satisfies all of the following objective planning standards: (1) The development is a multifamily housing development that contains two or more residential units. (2) The development is located on a site that satisfies all of the following: (A) A site that is a legal parcel or parcels located in a city if, and only if, the city boundaries 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 or parcels wholly within the boundaries of an urbanized area or urban cluster, as designated by the United States Census Bureau. (B) A site in which at least 75 percent of the perimeter of the site adjoins parcels that are developed with urban uses. For the purposes of this section, parcels that are only separated by a street or highway shall be considered to be adjoined. (C) A site that is zoned for residential use or residential mixed-use development, or has a general plan designation that allows residential use or a mix of residential and nonresidential uses, with at least two-thirds of the square footage of the development designated for residential use. (3) If the development contains units that are subsidized, the development proponent already has recorded, or is required by law to record, a land use restriction for the following applicable minimum durations: (A) Fifty-five years for units that are rented. (B) Forty-five years for units that are owned. (4) The development satisfies both of the following: (A) Is located in a locality that the department has determined is subject to this subparagraph on the basis that the number of units that have been issued building permits is less than the locality’s share of the regional housing needs, by income category, for that reporting period. A locality shall remain eligible under this subparagraph until the department’s determination for the next reporting period. A locality shall be subject to this subparagraph if it has not submitted an annual housing element report 87 15 —9— Ch. 366 to the department pursuant to paragraph (2) of subdivision (a) of Section 65400 for at least two consecutive years before the development submitted an application for approval under this section. (B) The development is subject to a requirement mandating a minimum percentage of below market rate housing based on one of the following: (i) The locality did not submit its latest production report to the department by the time period required by Section 65400, or that production report reflects that there were fewer units of above moderate-income housing approved than were required for the regional housing needs assessment cycle for that reporting period. In addition, if the project contains more than 10 units of housing, the project seeking approval dedicates a minimum of 10 percent of the total number of units to housing affordable to households making below 80 percent of the area median income. If the locality has adopted a local ordinance that requires that greater than 10 percent of the units be dedicated to housing affordable to households making below 80 percent of the area median income, that zoning ordinance applies. (ii) The locality did not submit its latest production report to the department by the time period required by Section 65400, or that production report reflects that there were fewer units of housing affordable to households making below 80 percent of the area median income that were issued building permits than were required for the regional housing needs assessment cycle for that reporting period, and the project seeking approval dedicates 50 percent of the total number of units to housing affordable to households making below 80 percent of the area median income, unless the locality has adopted a local ordinance that requires that greater than 50 percent of the units be dedicated to housing affordable to households making below 80 percent of the area median income, in which case that ordinance applies. (iii) The locality did not submit its latest production report to the department by the time period required by Section 65400, or if the production report reflects that there were fewer units of housing affordable to any income level described in clause (i) or (ii) that were issued building permits than were required for the regional housing needs assessment cycle for that reporting period, the project seeking approval may choose between utilizing clause (i) or (ii). (5) The development, excluding any additional density or any other concessions, incentives, or waivers of development standards granted pursuant to the Density Bonus Law in Section 65915, is consistent with objective zoning standards and objective design review standards in effect at the time that the development is submitted to the local government pursuant to this section. For purposes of this paragraph, “objective zoning standards” and “objective design review standards” mean standards that involve no personal or subjective judgment by a public official and are uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public official prior to submittal. These standards may be embodied in alternative objective land use specifications adopted by a 87 16 Ch. 366 — 10 — city or county, and may include, but are not limited to, housing overlay zones, specific plans, inclusionary zoning ordinances, and density bonus ordinances, subject to the following: (A) A development shall be deemed consistent with the objective zoning standards related to housing density, as applicable, if the density proposed is compliant with the maximum density allowed within that land use designation, notwithstanding any specified maximum unit allocation that may result in fewer units of housing being permitted. (B) In the event that objective zoning, general plan, or design review standards are mutually inconsistent, a development shall be deemed consistent with the objective zoning standards pursuant to this subdivision if the development is consistent with the standards set forth in the general plan. (6) The development is not located on a site that is any of the following: (A) A coastal zone, as defined in Division 20 (commencing with Section 30000) of the Public Resources Code. (B) Either prime farmland or farmland of statewide importance, as defined pursuant to 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). (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. (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 the Department of Toxic Substances Control has cleared the site 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. 87 17 — 11 — Ch. 366 (G) Within a flood plain as determined by maps promulgated by the Federal Emergency Management Agency, unless the development has been issued a flood plain development permit 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 floodway as determined by maps promulgated 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. (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. (7) The development is not located on a site where any of the following apply: (A) The development would require the demolition 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) Housing that has been occupied by tenants within the past 10 years. (B) The site was previously used for housing that was occupied by tenants that was demolished within 10 years before the development proponent submits an application under this section. (C) The development would require the demolition of a historic structure that was placed on a national, state, or local historic register. (D) The property contains housing units that are occupied by tenants, and units at the property are, or were, subsequently offered for sale to the general public by the subdivider or subsequent owner of the property. (8) The development proponent has done both of the following, as applicable: (A) Certified to the locality that either of the following is true, as applicable: 87 18 Ch. 366 — 12 — (i) The entirety of the development is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code. (ii) If the development is not in its entirety a public work, that all construction workers employed in the execution of the development will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the development is subject to this subparagraph, then for those portions of the development that are not a public work all of the following shall apply: (I) The development proponent shall ensure that the prevailing wage requirement is included in all contracts for the performance of the work. (II) All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. (III) Except as provided in subclause (V), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided in therein. (IV) Except as provided in subclause (V), the obligation of the contractors and subcontractors to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within 18 months after the completion of the development, by an