Update: Attorney Fees Provision in Government Code Section 65589.5(k) is Limited to Affordable Housing Developments

An applicant who wanted to subdivide a parcel of land into residential lots sought an award of attorney fees after he sued a county’s board of supervisors and won approval of his application.  The court of appeal held that Government Code section 65589.5(k) did not support an attorney fees award because an attorney fees award applies only to affordable housing developments.  (Honchariw v. County of Stanislaus (--- Cal.Rptr.3d ----, Cal.App. 5 Dist., August 8, 2013).


This Legal Alert updates a previous alert entitled, “Anti-NIMBY Law Applies To All Proposed Housing Development Projects,” November 21, 2011.


Nicholas Honchariw (“Honchariw”) proposed subdividing a 33.7-acre parcel of land into large residential lots.  The Board of Supervisors of the County of Stanislaus (“Board”) disapproved his vesting tentative map application.  Honchariw filed a petition for writ of mandamus as trustee of the Honchariw Family Trust.  He also acted as counsel of record in the lawsuit against the County of Stanislaus (“County”).  A superior court found in favor of County.  On appeal, the court of appeal reversed the decision of the trial court and ordered the superior court to issue a writ of mandate directing the Board to vacate its denial of Honchariw’s application.  The Board’s compliance with that writ resulted in the approval of Honchariw’s application.

Honchariw filed a motion seeking $611,400 for attorney fees.  The trial court denied his motion for attorney fees on the ground that the attorney fees award provision in Government Code section 65589.5(k) does not apply in this case.


Government Code section 65589.5(k) provides, in part, that a “court shall retain jurisdiction to ensure that its order or judgment is carried out and shall award reasonable attorney’s fees and costs of suit to the plaintiff or petitioner who proposed the housing development or emergency shelter . . .”  The issue before the court was whether subdivision (k) requires an award of reasonable attorney fees where the proposed housing development does not include affordable housing.  The court of appeal held that it does not.

The court looked at the phrase “the housing development” in subdivision (k).  The court found that the attorney fees provision in this statute is “ambiguous on its face because it does not identify the particular type of plaintiff or the particular type of housing or the particular type of housing development to which it refers.”

The sentence before the attorney fees provision in subdivision (k) addresses judicial relief available to remedy violations of the Housing Accountability Act.  This provision requires courts to issue certain orders within 60-days if certain conditions are met.  This sentence states in part that where “a court finds that the local agency disapproved a project or conditioned its approval in a manner rendering it infeasible for the development of an emergency shelter, or housing for very low, low-, or moderate-income households . . . . without making the findings required by this section or without making sufficient findings supported by substantial evidence, the court shall issue an order or judgment compelling compliance with this section within 60 days, including, but not limited to, an order that the local agency take action on the development project or emergency shelter.”  The court found that the language is ambiguous and turned to the legislative history of subdivision (k).

The court concluded the legislative history supports the view that the Legislature intended to limit attorney fees awards to lawsuits that involve affordable housing.  The legislative intent and purpose of that attorney fees provision is best effectuated by an interpretation of the construction of the statute that limits an award of attorney fees to those cases that involve affordable housing development.  Because Honchariw’s development is not an affordable housing development, he was not entitled to an award of attorney fees.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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